Holly Farms Corp. v. National Labor Relations Board - Oral Argument

Argument of Charles P. Roberts, III

Chief Justice Rehnquist: We'll hear argument next in Number 95-210, Holly Farms Corporation v. National Labor Relations Board.

Mr. Roberts.

Mr. Roberts: Mr. Chief Justice, and may it please the Court:

During the 200-plus years of our country's history, agriculture has undoubtedly changed dramatically.

Over the years, it has become more mechanized, more specialized, and a much larger business.

Yet, as I stand here today in 1996 before this Court, the process of catching chickens remains one of the most rudimentary agricultural processes that one can visualize.

Workers using nothing but their two hands manually catch chickens and place them into cages in order that these chickens can be delivered to market.

One would not think that it would take much analysis to conclude that these workers are agricultural laborers, yet the parties, including us, spend pages and pages of our briefs discussing whether Holly Farms is a farmer when it sends its chicken... sends its live haul crews to the farms of the independent growers.

We spend pages discussing whether catching chickens is... or whether chickens can be harvested.

We spend pages discussing whether the live haul crews are acting in some way in a relationship with the processing plant, perhaps proving that lawyers and sometimes judges can make issues that are quite simple seem complex.

Fortunately, I don't have to rely on common sense here today, because we have a statute that Congress carefully considered that specifically defines with some precision what is agriculture.

Unknown Speaker: Suggesting that common sense and Congress' statutes are mutually exclusive?

[Laughter]

Mr. Roberts: No, Your Honor.

I think in this case we see that common sense does equate with what Congress has done.

I just wouldn't want to be making only a common sense argument.

However, what we have is a statute... and if nothing else from my argument becomes clear today, I hope it will be clear that the chicken catchers and the forklift operators are at a minimum engaged in secondary agriculture within the meaning of section 3(f).

Unknown Speaker: How about the truck driver?

That doesn't sound particularly agricultural to me.

Mr. Roberts: Well, I think the truck drivers are a much more difficult question.

I think that the issue there turns on whether Holly is a farmer, because their activities do not take place on a farm.

I think logically it makes more sense to address the chicken catchers and the forklift operators first, because the issue in our opinion is much clearer on those, and if we prevail on the chicken catchers and the forklift operators then, even if we lose on the live haul drivers, that undermines the board's bargaining unit.

Unknown Speaker: But can we see them... can we solve this case by just thinking of chicken catchers without knowing the employer involved?

Now, suppose Holly Farms didn't ever hatch any chickens.

It was only in the slaughtering and processing business.

So it goes to the farms, it sends its trucks and teams to the farms, they pick up the chickens, they haul them to the slaughterhouse or the processing plant, and they don't... they're not even in the farming business at all.

They just pick up the chicks for slaughter and processing.

Mr. Roberts: And if those were the facts, the chicken catchers and forklift operators would still be agricultural laborers, but the live haul drivers would not be agricultural laborers in our opinion, under the facts that you have posed.

How do we know that?

We can look at the statute itself, which is found at page 3 of the blue brief.

Unknown Speaker: Well, you rely on the fact that the chicken catchers and the people who put them in cages are doing the work on the farm.

Mr. Roberts: That's correct, Your Honor.

We think--

Unknown Speaker: And therefore under the secondary agriculture prong of that statute.

Mr. Roberts: --That's our position, is that at a minimum, while we contend--

Unknown Speaker: And you take the position that Bayside, that Bayside case did not deal with that aspect of the statute, where the work was done on the farm.

Mr. Roberts: --That's absolutely correct, Your Honor.

Bayside dealt with feed haul drivers, and there was no contention in that case that their work was performed on a farm, so the sole issue was whether Bayside was a farmer, which also applies to our... we concede that that applies to our live haul drivers, but not to the chicken catchers.

Unknown Speaker: Okay, and so as far as the driver is concerned, we would have to conclude that Holly Farms has regained its status as a farmer for you to prevail as to them.

Mr. Roberts: We believe that that's the correct analysis, Your Honor, but if we take the chicken catchers and the forklift operators and we look at the statute, which is on page 3 of the blue brief, it says agriculture includes, among other things, the raising of poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market.

Now, we know that the chicken catchers and forklift operators work on a farm, because that is conceded.

We also know that catching, caging, and loading live chickens constitutes preparation for market because the board really does not dispute that, and the Secretary of Labor has specifically defined those tasks as being preparation for market.

We also know that the activities of the chicken catchers and the forklift operators are incidental to farming because section 3(f) specifically states that preparation for market is an activity that is, per se, incidental to farming.

The only remaining question is, is it related, incidental to or in conjunction with such farming, and we know that the answer to that question is yes, because the chickens that are caught, caged, and loaded onto the trucks are the same chickens that are raised on the farms on which the truck drivers work, so under the plain language of section 3(f), it is clear that the chicken catchers and forklift operators at a minimum meet the secondary definition of agriculture.

Unknown Speaker: Mr. Roberts, one could accept that that's a perfectly reasonable reading of the statute, but isn't there some respect that we owe to the contrary interpretation of the NLRB and its ruling in this case?

Mr. Roberts: We don't believe that in this case the board's opinion is entitled to any deference on the chicken catchers and forklift operators, because the issue in our view is that that's the only reasonable interpretation of section 3(f).

We also contend that the board's interpretation of phrases such as incidental to farming operations is contrary to this Court's prior decisions in Maneja and Farmers Reservoir, so we think that there's a principle of stare decisis that applies here, too.

We also take the position that their interpretation is contrary to the Secretary of Labor's, so for a variety of reasons we think that the board's interpretation in this case is contrary to the plain language of the statute and not reasonable.

I'm referring right now to the chicken catchers and the forklift operators.

I must emphasize that analytically they are separate from the live haul drivers, and that the two groups do not necessarily rise or fall together.

Unknown Speaker: Yes, and would you be able to say the same thing with respect to the line haul drivers, that that is your interpretation is the only reasonable one?

Mr. Roberts: We don't--

Unknown Speaker: It's hard to say that, isn't it?

Mr. Roberts: --Our position on the live haul drivers is that the statute is not specifically ambiguous but it does require interpretation and, had the board made a choice in this case between Holly and the independent grower, that choice might have been entitled to reference... I mean, to deference.

But what's happened in this case is, unlike Bayside, where the board took the position that the independent grower was the relevant farmer, the board denies in this case that the independent grower is the farmer.

It takes the... and it also denies that Holly Farms is the farmer, so what we have is the inescapable conclusion that these chickens, which are still on the farm, have no farmer, and that's the basis for our argument, is that--

Unknown Speaker: But of course you... but they want to have it both ways, but so do you.

If we agree with you on the chicken catchers, then that disparity which you have just described would no longer exist.

You would have a relevant farmer, right?

Mr. Roberts: --Well, we think that their--

Unknown Speaker: And therefore your argument on the line haul--

Mr. Roberts: --Not necessarily, because Holly, even with the chicken catchers and the forklift operators, they can be covered in one of two ways.

They can be acting incidentally to the farming operations of the farm, or they can be acting incidentally to Holly's farming operations.

It's our position that they're doing both.

Unknown Speaker: --Or they can be acting incidentally to Holly's slaughtering operations.

Mr. Roberts: That is the position that the board takes, and we think that--

Unknown Speaker: No, but I mean, that is a logical possibility here, isn't it?

Mr. Roberts: --Not... the chicken catchers, we think that that's not a logical--

Unknown Speaker: No, no, I'm just talking about the... I thought you were talking about--

Mr. Roberts: --The drivers?

Unknown Speaker: --The drivers.

Mr. Roberts: We think that that is one possibility that, you know, could be argued, but the problem is--

Unknown Speaker: Well, why isn't that same possibility open to the chicken catchers?

Mr. Roberts: --Because the statute, Your Honor, specifically defines preparation for market of agricultural commodities raised on that farm as being incidental.

Congress specifically--

Unknown Speaker: No question about that, but this... doesn't this go to the point of incidental to such farming?

Mr. Roberts: --It--

Unknown Speaker: And I mean, there is at least a reasonable position, isn't there, to the effect that if the chicken catcher is hired by a slaughterer as opposed to being hired by the farmer, the one who literally owns the henhouse with the chickens in it, that that would be a reason for saying it is not incidental to such farming, it is incidental to slaughtering?

I mean, that's a possible position, isn't it?

Mr. Roberts: --We don't think that under any reasonable interpretation, because what that... if you adopt that interpretation, then it leads to the conclusion that there is no farmer in this case, that it's not incidental to anyone's farming operation--

Unknown Speaker: Well, it may lead to the conclusion that at the precise mathematical moment in question the chickens are owned by somebody who is neither a farmer nor a nonfarmer.

The chickens are owned by the slaughterer at that point.

Mr. Roberts: --But if they're--

Unknown Speaker: Slaughterers can own chickens.

Mr. Roberts: --But the Congress is--

Unknown Speaker: I mean, can't they, and--

Mr. Roberts: --Certainly.

Certainly, and we would agree that if the slaughterers own the chickens and the slaughterer had no raising hatcheries or anything of that nature, then the live haul drivers would be... would be... would not be covered, but what we're dealing here is with work on a farm.

Congress specifically added the "on a farm" language to cover people who were not farmers, who did tasks on the farm.

Unknown Speaker: --And that leaves... that certainly leaves open the possibility, and I suppose the certainty, that if the farmer hired an independent chicken catcher, like the thresher of the wheat in the example from the 1930's, that that person would be an agricultural worker so long as the work was done on the farm.

But when you've got the condition that refers to... is it such farm, or such farming?

I forget which... such farming operations, then you have yet another possibility in play, and that is the possibility that when the person who hires and sends the chicken catcher is neither the farmer, nor an independent, but a slaughterer, and the work is being done as a preparation for the slaughterer's slaughtering, that in fact the incidental character goes to slaughtering and not to farming.

Mr. Roberts: We don't think that that's a reasonable interpretation, Your Honor, that Congress... we don't think that was Congress' intent.

Unknown Speaker: Because what?

Mr. Roberts: Well, because the language specifically was added to exempt somebody who was not a farmer, and if you accept--

Unknown Speaker: Well, it was added to exempt the independent thresher, and people in the thresher's position, but these chicken catchers are not like the independent threshers who were referred to in the Senate back in the thirties.

They are, in fact, owned by yet a third entity, that is to say, the slaughterer.

If the threshers, for example, in the 1930's examples had been employees of, what, the grain wholesalers or silo owners, they would have been in the same position, I suppose, as the chicken catchers who are employed by the slaughterers.

Mr. Roberts: --Well, the interpretation that you pose is one posed in the board's brief, but it was not posed by the board in its decision, and it's directly contrary to the board's decision in Produce Magic, where the board held that an independent harvester who went from farm to farm providing services for lettuce growers was not an agricultural laborer, even though the work was performed on a farm, because he wasn't a farmer.

So the board has read the statute in a manner which prevents anybody other than a farmer from ever performing secondary activities.

Unknown Speaker: But the point is, the statute can be read in a way that does not have that effect and still lead to the board's conclusion here.

Mr. Roberts: Only by adopting a logic that is specifically contrary to what the board has held in another case, and we don't think that that would be a reasonable method for doing it.

Unknown Speaker: Well, and you also have to accept the proposition that a particular activity can only be incidental to one.

It has to be either incidental to the slaughtering operation or incidental to farming.

I don't know why it can't be incidental to both.

Mr. Roberts: That's--

Unknown Speaker: All the statute requires is that it be incidental to the farming operation.

Mr. Roberts: --The board has effectively imposed a solely or exclusively requirement into section 3(f) which is not warranted by the act.

If you look at the court's decision in the sugar cane case in Hawaii, Maneja, where they specifically dealt with railroad workers who transported sugar cane from the fields to the processing mill, the court clearly viewed that activity as being incidental to farming even though the purpose and the ultimate destination of the sugar cane was the employer's processing mill where the sugar cane was going to be processed into sugar and molasses.

So it seems clear from that decision that the question of whether something is related to farming is not a question of whether it has any relationship to processing but how is it, and is it the kind of activity that we would view as being reasonably related to the farming operation.

Unknown Speaker: And I suppose that you'd have a real problem with any farmer who has an integrated operation, not only farms but slaughters, and then if these people who catch his chickens are doing things that are incidental to both operations, they presumably would not be entitled to the exemption.

Mr. Roberts: Well, that's correct, Your Honor.

Unknown Speaker: Which is just like the case you describe.

Mr. Roberts: Well, I think that one problem with the board's interpretation is it leads to a detailed analysis of the business relationships between the different employers, and we read section 3(f) as focusing primarily on the nature of the work, and under the board--

Unknown Speaker: Suppose that you had... suppose I go into the business of supplying water to people who are threshing and they get thirsty, and each day I drive from my town, in the middle of the city, and I put water in my truck, and I go out there and I give them cups of water while they're threshing, or whatever they're doing.

Now, couldn't you say that such a person, me, who goes out and gives them water, or my employees hands them cups and so forth, that that's not incidental to farming.

Rather, I have a separate business.

I'm a water company.

I live in the city, I get my water from the city water, I go out and give them water.

But in your analysis, that becomes a farm worker, is that right?

Mr. Roberts: --No, I don't think so, Justice Breyer.

Unknown Speaker: Why not?

Mr. Roberts: The... there's two--

Unknown Speaker: Why isn't it incidental to the farm?

Mr. Roberts: --Well, there's two problems with that.

It may be incidental to farming--

Unknown Speaker: Yes, that's what I thought it was in the analysis--

Mr. Roberts: --But... but it still, to be covered, has to either be performed on a farm--

Unknown Speaker: --Yes, it is.

Mr. Roberts: --or by a farmer.

Unknown Speaker: What they do is, they go out there and they hand them the cups.

They walk around from corn sheaf to corn sheaf and help them drink.

Mr. Roberts: Well, I mean, obviously that is a question that I think the court would have to--

Unknown Speaker: What I'm trying to suggest is, it makes a difference who you're working for, that if, in fact, the water person was working for the farmer, you'd say, hey, this is incidental to the farming, but if the water person is working for a city water company, it seems more incidental to that.

You could call it either way, and how, in fact, the person... who is his employer would be relevant.

Mr. Roberts: --Well, that same argument would apply to the independent wheat thresher.

He's acting as an incident to his own business operations, yet Congress clearly intended--

Unknown Speaker: But he's a farmer.

Mr. Roberts: --No.

No, the Congress specifically took the position that the independent wheat thresher was not a farmer.

He was... in fact, that same argument was advanced that he was nothing more than a huckster who went from farm to farm selling his tinware, and that... and Congress took the position that even though he was an independent businessman, because his activities occurred on a farm and were related incidentally to or in conjunction with farming, they were covered.

So the argument that you pose... I agree the water, providing the water is a more difficult question, because the question becomes whether it has any relationship whatsoever to agricultural... you know, even though it's an activity, it may not be incident... the issue may be that it just has no relationship, really, to the farming operations themselves.

In this case, there's no question that the activities of the drivers as well as the chicken catchers and forklift operators are secondary activity.

The board is not contending that there's something about the activities that are not agricultural.

Their argument focuses on the relationship--

Unknown Speaker: Mr. Roberts, can I ask you a question about the fact, does a particular crew go out and catch the chickens on one farm, deliver them, and go back to the same farm, or does it cover a lot of farms on one--

Mr. Roberts: --Your Honor, it covers a lot of farms, but what happens is, the live haul drivers deliver the chicken catchers and the forklift operators to the farms.

Unknown Speaker: --Right.

Mr. Roberts: So we have the chicken catchers and the forklift operators perform their tasks.

Once the truck--

Unknown Speaker: Will one truck load take all the chickens they're going to get from that farm?

Mr. Roberts: --No.

It may involve going to several different farms.

At some point in time--

Unknown Speaker: No, that's not quite my question.

Will... are the various farms about the same capacity?

All right.

Are the number of chickens that they catch more or less than they can get in one load?

Mr. Roberts: --I think the... from one farm would probably be less than what they get in one load.

In other words, the--

Unknown Speaker: So they have to go back to the same farm a second time?

Mr. Roberts: --No.

They go to a different farm, and once you've cleaned out one farm, then, you know--

Unknown Speaker: But I thought you said that one load would not clean out the farm.

Mr. Roberts: --They have to go to other farms, Your Honor.

There's hundreds of farms--

Unknown Speaker: No, I understand, but I'm trying to get... one crew goes to farm A.

It picks up some chickens there.

Does it pick up all the available chickens?

Mr. Roberts: --It picks up all the available chickens.

Unknown Speaker: In the same load?

Mr. Roberts: Yes, and then it goes to farm B.

Unknown Speaker: I got the impression that it went to the farm, loaded up the truck, went back to the processing plant, and then came back to the farm.

Mr. Roberts: No, Your Honor.

Unknown Speaker: That's not right.

Mr. Roberts: It goes to farm B.

At some point the truck becomes full and the live haul truck driver takes the truck back to the plant, drops the trailer, and then returns--

Unknown Speaker: To a farm it's already been to.

Mr. Roberts: --to a farm.

The chicken catchers and forklift operators don't go back with the live haul driver while he's dropping off a load unless it's the end of their... you know, the end of their day.

Unknown Speaker: It would just be a coincidence, then, that if at some point you didn't have to go back to the same farm, because what you... what regulates when they go back is when they've got a full truck, not when they've cleaned out one farm.

Mr. Roberts: Well, obviously, yes.

If they reach a farm, and then the truck gets loaded, it has to go back, and then at some point either that truck or another truck... they have more live haul drivers than they do crews, so there can be, you know, several drivers out there, and then another truck would have to come in order to complete the loading process at that particular farm.

But the chicken... my point is, is the chicken catchers and the forklift dri... I mean, the forklift operators stay on the farms until the end of their shift and then they go home.

Unknown Speaker: A different truck will come and pick them up, then?

Mr. Roberts: It may be the same, or it may be a different truck.

Unknown Speaker: I see.

I see.

Are you going to spend any time at all arguing about whether Holly Farms is a farmer?

Mr. Roberts: Yes, Your Honor.

In this particular case, as I said, the live haul drivers turn on whether Holly is a farmer.

Now, the board concedes that Holly is a farmer in its hatcheries when it breeds and hatches the chicks.

It takes the position, however, that neither the grower nor Holly is the farmer of the chickens at the time that the live haul crews arrive at the farm, and our position is, is that the board might have been able to choose the farmer over Holly, but it had to choose one of them.

The chickens had to have a farmer.

They're still on the farm.

They haven't been reduced to possession.

Either Holly or the grower has to be the farmer.

Now, the board in its brief specifically rejects, and in the case specifically rejects the position that the grower is the farmer, and the reasons that it gives establishes that Holly resumes its status.

Thus, the reasons that the board tells us in its brief why the grower is not the farmer is that Holly bred and hatched--

Unknown Speaker: But you deny that, so you're another.

I mean, you're doing the same thing that they do.

Why is it bad for them but okay for you?

Mr. Roberts: --I'm sorry, Your Honor, I didn't--

Unknown Speaker: Just as they are saying that he is not the farmer, you are saying that he is.

Mr. Roberts: --We're saying that both are.

We're saying that you can be... in this particular case, the activities of all these workers can be incidental to both Holly's farming operations and to the grower's farm... it's... remember, the statute speaks of the farms.

The operation, the farming operations that take place on the farm, those operations were the grower's operations in raising the chickens.

Well, when you catch chickens that have been raised on a farm, we contend that by definition, that's related to the farm's farming activities.

Unknown Speaker: That's the other issue.

We're talking about the--

Mr. Roberts: Our position, though, is, is that in addition to that, Holly has resumed its status as a farmer because it holds title to the chicks, it actually performs the delivery, or the catching, the caging and the delivery, and as the board points out in its brief, the grower provides a service for Holly.

Unknown Speaker: --Well, wait a minute.

If it was an independent contractor who did the catching-caging, you wouldn't say that he became a farmer, would you?

You'd just say, he performed activity incidentally... incidental to farming on the farm.

Mr. Roberts: Because that--

Unknown Speaker: So the mere fact that Holly did the catching-caging doesn't reconvert Holly to a farmer.

It just means that Holly is doing work incidental to farming.

Mr. Roberts: --Well, Your Honor, and the case you pose would be one where the entity had no previous farming status with regard to those chickens.

In this particular case--

Unknown Speaker: Okay.

That is exactly... that's the only distinction that you can rely on.

Mr. Roberts: --That--

Unknown Speaker: That Holly used to be a farmer.

Mr. Roberts: --Well--

Unknown Speaker: Unlike the independent contractor, before Holly dropped off the little chicks, Holly was a farmer.

Mr. Roberts: --That's the major distinction, but we think it's an important distinction.

The other--

Unknown Speaker: It is, maybe it isn't.

Mr. Roberts: --Well--

Unknown Speaker: I'd sort of leave it to the agency to figure out.

Mr. Roberts: --There's a second distinction, Your Honor, is that Holly owns the chickens.

The example you pose would be one where the chickens were not owned by the independent contractor, so they would have no relationship whatsoever to these particular chickens.

So we think it is a material distinction that they own the chickens, that the grower... you see, as the board points out--

Unknown Speaker: Well, why is that material?

I can own a chicken, and I'm not a farmer.

Mr. Roberts: --Well, in this particular case--

Unknown Speaker: He can even eat it and not be a farmer.

[Laughter]

Mr. Roberts: --I would agree with that, Your Honor.

But the title to the chicken runs hand-in-hand with the fact that we bred and hatched these chickens.

I don't think you can separate the two.

The fact remains is that we do have a very close tie.

We remain, if you look at--

Unknown Speaker: Yes, but I can raise some chickens and then rent them out to someone else, and at that point I'm saying, the farming's over for me, but I still own the chickens, so I don't see the materiality for the classification of the fact that I have title.

Mr. Roberts: --Well, I think the title of it bears on the fact that it shows that the relationship that Holly has to the chickens... by itself, I would agree with you that that would--

Unknown Speaker: It shows it's a chicken owner.

Mr. Roberts: --But it also has to show that in conjunction with that it is engaged in the breeding and hatching of chicks.

It then--

Unknown Speaker: It used to be, and it's finished.

Mr. Roberts: --And it performs... and another argument that I've not really had time to address is that the activities of the chicken catchers and forklift operators are actually primary agriculture, and they're actually harvesting the chickens within the regulations of the Secretary of Labor.

Unknown Speaker: You're not going to spend a lot of time on that argument--

Mr. Roberts: No, I'm not, because I don't have a lot of time.

[Laughter]

But to answer your question--

Unknown Speaker: --Mr. Roberts, as I understood your answer to my question in the very beginning you're saying this business about whether Holly is the farmer is only relevant to whether you can catch the live haul driver, because under any scenario, as you see this case, the chicken catchers and the forklift person have to be agricultural laborers.

Mr. Roberts: --Obviously, that is our position, and it's our... I would agree it's our strongest argument, and that's why I keep emphasizing you have to separate the two.

Analytically they are distinct, and if... if the Court is inclined to show deference to the board on the live haul drivers, we would strenuously argue that such deference would not be owed on the chicken catchers because of the nature of the language and the intent of Congress.

I'd like to reserve a couple of minutes for rebuttal.

Unknown Speaker: Very well, Mr. Roberts.

Mr. Seamon, we'll hear from you.

Argument of Richard H. Seamon

Mr. Seamon: Mr. Chief Justice, and may it please the Court:

The workers at issue here go from petitioner's processing plants to the farms of independent growers to pick up mature broiler chickens and take them back to the processing plant to be slaughtered and dressed.

Petitioner's own witness testified that this work is the first step of the processing operation, and that the work is coordinated to meet the needs of the processing plant.

It is undisputed that chicken processing is not an agricultural activity.

The question is whether the National Labor Relations Board reasonably concluded that these workers, called live haul workers, are not within the agricultural exemption of the National Labor Relations Act.

We think--

Unknown Speaker: But as to the chicken catchers and the people who... the forklift operators, it is being done on a farm.

Mr. Seamon: --That's right.

Unknown Speaker: And it certainly is incidental to the farm operation.

You have to get rid of the chickens.

I mean, the whole farm operation is devoted to raising them for a certain period of time and then moving them on to the next stage, and it's incidental to that.

It can't occur without removing them.

Mr. Seamon: That's correct.

Unknown Speaker: It just seems to me that the position of the board is not reasonable in light of the language of the statute as to those two categories of workers.

Mr. Seamon: We believe that the work of the chicken catchers and forklift operators isn't incidental to the primary farming operations that go on on the farms where they do their activity, and one of the difficulties of petitioner's argument is that they avoid the statutory term, such.

That word requires you to look at the connection between the activity to be classified and what's going on on the farm, and the farm--

Unknown Speaker: Well now, what's going on on the farm is growing the chickens for a certain period of time, isn't it?

Mr. Seamon: --That's right, and that process--

Unknown Speaker: And that process requires getting rid of them after they're 49 days old, doesn't it?

You have to move them on out.

Mr. Seamon: --Absolutely.

Unknown Speaker: And that's incidental to the operation they have.

Mr. Seamon: And--

Unknown Speaker: It may also be incidental to processing, but it certainly, at a minimum, is incidental to the farming operation.

Mr. Seamon: --But in that sense of the term, incidental, the processing operation itself is also incidental to the farm.

There has to be a market for the farmers or else, you know, the growing, they're grown for no purpose.

Unknown Speaker: Does the statute use the term, processing?

Mr. Seamon: No, the statute does not.

The statute raised... basically imposes three requirements, and we think one of them, it is not met here with respect to the chicken catchers and the forklift operators.

First, the work has to be done by a farmer or on a farm.

Second, it has to be done incidentally to or in connection with primary farming operations, and the third and, we think, the most important requirement that's not met here is that it has to be incidental to the operations that go on on that farm.

The operations in this case are defined by the contract between the independent growers and Holly Farms.

Unknown Speaker: Why is that?

I mean, you say it is incidental to the activities that go on on the farm.

It is incidental when an independent contractor comes in and does it, somebody who runs the business of catching and cooping chickens.

If he sends somebody in, it is incidental to the farming business.

But if, instead of contracting with this independent contractor the farmer contracts with the buyer and says, look, of course I'm going to have to get these things caught and cooped before you can process them.

I could hire an independent contractor, but what say I sell you the chickens for a little bit less, and you coop them and... you catch them and coop them when you send your truck to take them.

He says, okay, that's a good deal.

Why should that have anything to do with whether the catching and cooping is incidental to the farming operation, whether you choose to pay an independent contractor or deduct it from the price that you're selling the chickens for?

It doesn't seem to me to have anything to do with whether it's his.

Mr. Seamon: The answer to that I believe was suggested by Justice Breyer.

It does make a difference who you work for as to whether you fall within the agricultural exemption or not.

Congress intended the agricultural exemption to extend to farmers but not to processors.

Unknown Speaker: In neither case are they working for farmers.

In one case they're working for somebody who's in a business of providing independent contracting employees.

Mr. Seamon: That's right.

Unknown Speaker: He's not a farmer.

Mr. Seamon: And the independent contractor example came up as a result of concerns on the part of some Senators with a situation that fell somewhere between farming and processing, and they were concerned with a firm that carved out a niche for itself by traveling from farm to farm performing a service on the farm for the farmer with regard to his or her commodities, and those firms were described as doing nothing but threshing wheat, or some other similar service.

Unknown Speaker: Well, they're not described that way in the statute.

I mean, it may be one thing that led to this particular statutory exemption, but it may... the exemption is in broader terms than the examples which might have led to it.

It's the statutory language that governs and not the thought that might have been behind it.

Mr. Seamon: That's correct, and we... but we believe that in terms of determining whether an activity is incidental to the primary farming operations that are going on on a farm, it's important to determine whether it's connected with some broader process.

In this case, the chicken-catching operations are connected with the broader process of slaughtering and dressing the chickens for market.

To that extent, they're no longer incidental.

You can't say that that's true in the case of an independent contractor whose work is limited to going from farm to farm and catching chickens.

Unknown Speaker: Your assumption, Mr. Seamon, is, and I'm sure you'll agree with this, but I'm not sure it's a correct assumption, is that you can only be incidental to one thing.

You are either incidental to the farming, or you are incidental to the processing.

You can't be incidental to both.

I'm just--

Mr. Seamon: No, we don't agree with that.

Unknown Speaker: --I'm not sure I agree with that.

Mr. Seamon: That's not a necessary premise of our argument.

The statute really asks only one question, and that is whether the activity is incidental to the primary farming operation, and that's the only question that has to be answered.

We're saying the chicken catching and the forklift operations are really part of the processing operation, and we're relying on a number of--

Unknown Speaker: Well, Mr. Seamon, any farmer would tell you it's incidental to the farm operation to get those chickens out of there when they've reached the right age.

I mean, that has to be part and parcel of it.

Anybody who's ever worked on a farm knows that.

I think your argument, or the argument of the board is just a real stretch here.

Mr. Seamon: --It's only incidental in the same sense that it's necessary for the farmer to find someone to sell the farmer's... the chickens to once they're grown, and that's... and whatever operations the purchaser performs on those chickens are part of the process that if there were no market for the chickens they wouldn't be grown at all in the first place, so in that sense, processing is--

Unknown Speaker: Yes, but the statute itself refers to preparation for market, delivery, storage, et cetera.

I mean, clearly the statute contemplated this very kind of thing with regard to farming.

Mr. Seamon: --We are not saying... the board is not saying that chicken catching operations can never be incidental to primary farming.

It's highly relevant the way in which the operations are performed and for whose benefit they're performed.

In the case of an independent contractor hired by a farmer, then the chicken catching is performed for the benefit of the farmer.

But when they're performed by a set of employees who are dispatched from the processing plant and whose work is really scheduled to meet its needs, that work no longer is incidental to--

Unknown Speaker: I don't want to belabor the point too much, but it certainly benefits the farmer to have the mature chickens moved out so the farmer can get more money by raising chicks again.

It helps the farmer.

It's part of his operation, or hers.

Mr. Seamon: --Yes, but again I would go back to the term "such" in the statute, because I believe that word is key here in the sense that it requires you to focus on the particular farming operations that we're talking about, and those operations are defined by contract as being limited to raising the chickens to a certain age and then making them available for processing.

Unknown Speaker: Suppose that Holly contracted out in the manner in this case only half of its chickens, and the other half it raises on its own, it has its own farms, and the chicken catchers spend half their time on Holly's own farms and half their time doing what they're doing in this case.

What result in this case?

Mr. Seamon: The answer would be the same with respect to both phases of the operation.

They... those workers would be involved in processing under the circumstances of this--

Unknown Speaker: They would be processing even when they are on Holly's own farms?

Mr. Seamon: --Yes, that's right, and again for the same reasons that exist on this case.

They're sent out of the processing plant.

They are employees of the processor.

Unknown Speaker: No, no, my hypothetical is that they spent half their time on the farms where the chickens are raised from the very beginning to 49 days, and half the day they go out and work on Holly's farms engaging in this operation, and the other half the time they spend going out to these other farms as in this case.

Mr. Seamon: We would say that the time spent on both farms, on both kinds of farms would not be incidental to the farming operations there, if the facts were otherwise the same as they are in this case.

Unknown Speaker: And so then if 90 percent of their time was spent on Holly's own farms, and then 10 percent of their time doing this, the result would be that they would be farm workers then, or not?

Mr. Seamon: That they would not be farm workers there, and again, it is because of the way in which this work is organized.

I mean, it's no accident that the petitioner's own industry has organized the work of the chicken processing to separate it very distinctly from the work of the independent growers.

All of the growing operations--

Unknown Speaker: Well then, in my hypothetical, half of their time is spent where they're doing the growing themselves.

Mr. Seamon: --Yes.

Unknown Speaker: And the workers aren't engaging in farm work at that time either?

Mr. Seamon: No, that's right.

The board's position is that, again, if the facts were otherwise the same as they are in this case, except for the fact that Holly Farms owns some of these farms, their work would still be part of the processing operation.

Again, we're simply relying in part on petitioner's own characterization and the way in which they organize the work.

Unknown Speaker: May I just make sure I understand what you're saying?

Assuming Justice Kennedy's example that the farms owned by Holly Farms did not have any kind of contractual situation just as this, it's just that they happen to pick an appropriate time to go pick up their chickens, you'd say they were still not agricultural workers then?

Mr. Seamon: That's correct.

That's correct, because their work would still be part of the processing operation under the way in which the work has been organized in this fashion.

Unknown Speaker: But if it were a totally independent chicken catcher who didn't... then what's the result?

Mr. Seamon: In that case the work would be secondary to farming, and again, it is--

Unknown Speaker: Which means what you're saying is that it can only be incidental to one thing.

You acknowledge it's incidental to farming.

However, it becomes not incidental to farming when it's connected with a processing operation.

It seems to me the premise of your argument is you can only be incidental to one thing, and therefore you must make the choice of whether you're incidental to farming or incidental to processing, and I don't see that that follows.

Mr. Seamon: --I'm sorry if I'm not making it clear.

It is not a premise of the board's position in this case.

Instead, the idea is that chicken catching can be secondary farming under certain circumstances, for example, if the work is done by an independent contractor also, if the farmer's... if the farmer--

Unknown Speaker: The certain circumstances you're saying is the circumstance that it is not incidental to something else, namely incidental to processing.

Mr. Seamon: --Well, in a colloquial sense it's certainly true that things can be incidental to both one operation and another operation, and that's why part of the inquiry that's important under this Court's own decisions regarding the agricultural exemption is the way in which the work is organized.

Unknown Speaker: Let's assume the case in which you consider all the factors and you're on the fence, and you say, in this particular case there are good reasons to say it's incidental to such farming, and there are good reasons to say that it's incidental to slaughtering.

Do you have a tie-breaker?

Mr. Seamon: I think one of the most important determinants in that case is who are the employees employed by?

Unknown Speaker: Well, but no, I was assuming that was one of the good reasons.

I mean, that is a reason under the regs.

Why don't you say in the case... and I'm going to assume for the sake of argument this is such a case.

You could say that it's incidental to such farming, and you could say that it's incidental to slaughtering.

Maybe one argument is stronger than the other, but maybe not, but there are arguments each way.

Why don't we simply say, the presumption of the statute is that you're an employee unless it is demonstrated that you're not, and therefore the tie-breaker is the inclusiveness of the general definition of employee, like the inclusiveness of the general definition of income.

Mr. Seamon: That's right.

An appropriate tie-breaker in that situation may be the canon of construction that's been specifically applied with reference to the agricultural exemption that exemptions are to be narrowly construed.

Unknown Speaker: Well, that comes from a couple of old cases.

I don't think we're repeated it recently.

Mr. Seamon: Nonetheless... and we don't think that a tie-breaker needs to be applied in this case.

The problem--

Unknown Speaker: Mr. Seamon, are you saying that even if Holly Farms never has this contracting-out operation, so they did everything from hatching the chicks to raising them to bringing them to slaughter, even so, these employees would be typed by the board nonagricultural employees?

Mr. Seamon: --Not necessarily.

It would depend on the particular circumstances of the case.

For example, if the employees who did the catching and loading of the chickens were the same employees who were actually involved in the raising of the chickens--

Unknown Speaker: No.

They are teams, and that's what they do.

They catch chickens, and they bring them to the slaughterhouse, but they are operating under the aegis of one integrated operation that does everything and farm's nothing out.

Mr. Seamon: --Yes, then the answer to that would be that they would be involved in processing rather than agriculture.

Unknown Speaker: Okay, can I go back for a second... were you finished?

Yes.

The... as I... I'm not positive I have this chicken thing sorted out correctly, but let's start with the farm, and the farm is under contract to Holly Hill, is that right?

Okay, so now we call him contracting Farmer Brown.

Now, if, in fact, Smith, who picks the chickens up and puts them on the truck and takes them into the processing plant, I take it if Smith was an employee of Farmer Brown, he would be covered... exempt.

I mean, he'd be an agricultural laborer.

Mr. Seamon: That's correct.

Unknown Speaker: Okay, and I take it that if Smith were either himself an independent contractor or worked for an independent contractor like the independent thresher, he would be an exempt agricultural laborer.

Mr. Seamon: That's correct.

Unknown Speaker: And if, in fact, he happens to work for a firm which is in the business of grabbing chickens, transporting them, and turning them into sort of delicious packaged chicken, he does not become an agricultural laborer, he's not exempt.

Mr. Seamon: That's right, or in that--

Unknown Speaker: All right.

Now... now, that is a little counterintuitive, because you'd think he's going out there and picking up the chickens out of the thing the same way each time, and you can't quite turn to the contract on that, I don't think, because you can write the contracts, or that same contract with any of the three and you'd come to different results, and therefore it must turn on something, and I take it you'd think it turns on the deference that we owe somebody.

And so that's my question.

Who do we owe that deference to, and exactly what?

Is there a DOL regulation that solves this under the FLSA, because I take it that the board is trying to copy the FLSA.

Mr. Seamon: --That's right.

Unknown Speaker: All right, and so what we should look to, I guess, is what do the FLSA administrators think about this, and I have some regulations, and they talk about transporting plant employees, they talk about delivery to market, and they seem in talking about the transporting of plant employees that they're not exempt unless they're the employees of the farmer, i.e., of Brown.

Mr. Seamon: That's correct.

Unknown Speaker: But they aren't too clear on that, and that's what I'd like you to address yourself to.

And also, they talk about marketing, i.e., transporting chickens, in this case.

They don't talk about going into the coop and picking them out, or going to a place where they're running around and picking them out, so what... to what extent... I mean, I'm prepared to give quite a lot of weight to the experts on this over in the FA, but what has the FLSA said about this?

How clear have they made it?

Mr. Seamon: There are a series of regulations of the Department of Labor that address this situation.

The basic regulation has specifically addressed the contract arrangements for the raising of poultry, and that was first adopted in 1961, recognizing the fact that this contracting out of the raising function goes back sometime, and what it says is that the employees of a processor who perform work on a farm as an incident to in conjunction with the raising of the poultry on that farm are employed in secondary agriculture.

So it--

Unknown Speaker: So we've now got against you that it's secondary agriculture.

Mr. Seamon: --Well--

Unknown Speaker: So it's against you--

Mr. Seamon: --No, I'm--

Unknown Speaker: --if they're employed by Farmer Brown.

Mr. Seamon: --Respectfully, I disagree.

Unknown Speaker: No.

Mr. Seamon: What the regulation says is, it makes it conditional on whether the work is done as an incident to or in conjunction with the primary farming operations on that farm, so--

Unknown Speaker: Well, the chicken-picking normally would be, wouldn't it?

Okay... oh, ahead.

Mr. Seamon: --That basic regulation requires an inquiry into, is this work incidental to primary farming operations?

The regulation that addresses that point state that an activity is incidental to primary farming if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business.

Now, we think all three of those factors support the board's conclusion in this case.

The chicken-catching and loading operations isn't an established part of agriculture because it's not ordinarily done by farmers.

On the contrary, the facts of this case represent the overwhelming practice of the industry to separate the functions of raising and catching so that the raising is done by the independent contractors and the catching and loading and transportation is done by the employees of the processor.

Unknown Speaker: I see, and if farming should develop so that farmers no longer feed their own hogs but there are hog-feeding companies, then the feeding of hogs would no longer be farming, is that right?

Mr. Seamon: That's quite possible, and this Court anticipated that very situation in the Farmers Reservoir Company, when it said, agriculture as an occupation includes more than the elemental processes of planting, growing, and harvesting.

There are a host of incidental activities that are also necessary to the process.

Whether a particular type of activity is agricultural depends in large measure on the way in which that activity is organized in a particular society, and the Court goes on to describe the example of the manufacture of farming tools.

Unknown Speaker: Read the last sentence again.

I think that the import of that is that there are core agricultural activities, among which I would include the feeding of hogs, and then the last sentence you read goes to other things that are at the margins, which may or may not be.

Mr. Seamon: That's right, and--

Unknown Speaker: Isn't that right?

Mr. Seamon: --Yes, that's right.

Unknown Speaker: So the question is whether catching a chicken and putting him in a coop so he can be taken to market is the equivalent of feeding hogs or not.

Mr. Seamon: And I think it's clearly not, because if a firm were engaged simply in the work of going from farm to farm catching chickens, it wouldn't be ordinary to call the person who owns that business a farmer.

Unknown Speaker: All right, so if in fact the... I mean, you have to draw the line somewhere, and I guess people would think that transporting the chicken, coming and just taking the chicken and bringing it to the processing factory, that's fair enough to call not agriculture, but you've gone a little bit in the direction of feeding the hogs, because he's actually picking the chicken up, and that's not quite feeding the hog, but it's a step in that direction.

Mr. Seamon: Well, I--

Unknown Speaker: That's one problem.

But now go back to the regs.

That is, are there other regs that help you, or have we listed them all?

Mr. Seamon: --Well, let me say a couple of more words about the regulation that specifically addresses the incidental-to requirement, because that is really the requirement on which we contend that petitioner's argument founders.

The chicken catching is not an established part of agriculture because of the way in which it is organized.

It is carried out by and large by employees of processors.

Also, it is not subordinate to primary farming because it's not carried out under the direction of the independent growers.

Their contractual obligations end at the point that the chickens reach maturity and are made available for processing.

Unknown Speaker: Could you just... what I was trying to do is, I'm just trying to list on my piece of paper all the regs that I want to be certain that I read, so I want to be sure that I have them all on that list, so just be sure you mentioned them all.

Don't you have a reg on the ownership of the chicken... I thought I read it in the brief somewhere... that would be relevant to look to, to the person who holds title to the chicken?

Mr. Seamon: Yes, that's correct.

One of the board's--

Unknown Speaker: Is that the same reg that Justice Breyer just referred to, or is that somewhere else?

Mr. Seamon: --It is not the same regulation as the one in which I'm talking about.

It is--

Unknown Speaker: But it's in the brief.

I thought it was in your brief.

Mr. Seamon: --It is on page 27 of our gray brief on the merits.

Unknown Speaker: Okay.

Mr. Seamon: And it is quoted towards the bottom of the page of our gray brief on the merits, page 27.

It's 29 C.F.R. 780.143, and it's block-quoted.

The fact that a practice performed on a farm is not performed by or for a farmer is a strong indication that it is not performed in connection with the farming operations there conducted, and in order to decide whether the work was done for a farmer... as Justice O'Connor was suggesting, in a sense, of course, the removal of chickens is done for the farmer, but in certain cases it's more accurate to say that it's done for the benefit of the processor.

At least that's true when the crew works out of the processing plant, the testimony of petitioner's own witness calls the process--

Unknown Speaker: But again, it's probably done for both.

The farmer needs to get rid of the mature pullets in order to continue his business of growing more, and the processor needs to get them in order to process them, and they both benefit, and it's incidental to both.

Mr. Seamon: --Whether the... we would say that you have to look at some additional factors in that, however, and one of them would include the fact that there is a good reason why these chicken catching operations are employees of the processor rather than employees of the farmer.

The chicken processing operation--

Unknown Speaker: But under the statute, if it's on the farm, it doesn't matter who the employer is if it's on the farm and incidental to or in conjunction with such farming operation.

That's all that's important.

It's not who is the employer.

Mr. Seamon: --But the incidental-to requirement requires you to look at the relationship between the activity to be classified and the primary farming operation that goes on on that farm, and in looking at the relationship between those two activities, I would submit you also have to look at the relationship between the parties.

Are the same employees who are actually doing the raising of the chickens also doing the catching of the chickens?

In that case, there's a very close correlation between the two types of work, and it may very well be relevant, because it is the farmer's employees who are doing the catching, to say that is incidental to the farming.

Unknown Speaker: Well, it's crystal clear that the language of the statute was included to bring in, for instance, the independent thresher and so forth.

It was never contemplated that it had to be an employee of the farmer.

Mr. Seamon: And that independent contractor is described in the legislative history as limited to doing nothing but going from farm to farm threshing wheat for the farmer.

In that situation, the firm is working under the direction of the farmer.

Since by hypothesis it weren't involved in processing, you couldn't say that it's activities were part of--

Unknown Speaker: But don't you suppose the farmer here has to tell the chicken catchers the chickens that are 49 years old are in that particular area--

--Days old.

--or 49 days old--

[Laughter]

--are in that particular area, those are the ones you have to go catch, and you go in there and get those?

Mr. Seamon: --The record doesn't make that clear.

In fact, the record doesn't indicate any interaction whatsoever between the independent growers and the chicken-catching crews, and that is one of the factors that we believe is relevant.

Unknown Speaker: But Mr. Seamon, we assume they're not going to show up at the farm and have the farmer just stand mute.

The farmer is going to say, yes, go into that chicken house, get those chickens.

Watch out for the red one.

Yes.

[Laughter]

Why... it seems to me that this brings us back to a question that Justice Scalia has posed a couple of times.

Going to the reg on page 27, here are good reasons to say, in the abstract, or just looking to common language usage, that the chicken catcher in this case is doing it for the farmer, and there are good reasons to say that he's doing it for the processor, but what we've got is a regulation here that says, if you want to know how to make the choice between those two possibilities, one of the things you look at is who holds title to the chicken.

Mr. Seamon: That's right.

Unknown Speaker: And why don't you... I mean, why... don't you have a fair argument saying, look, we've got to have tie-breakers somewhere, somebody's got to figure out what they are, and this Department of Labor regulation has said, let's look to title, and therefore defer to the regulation, admitting that as a matter of language it could go either way?

Mr. Seamon: And certainly title is relevant, and the Court could decide to make title a tie-breaker, and the board--

Unknown Speaker: And we ought to defer to it.

And you always assume that the tie has to be broken.

It seems to me that your acknowledgement that independent contractor's employees when they engage in this business are engaging in agriculture.

It seems to me that acknowledgement admits that you don't have to be incidental to one or the other, you can be incidental to both.

Surely those people, when they do that work, are doing it incidentally to the independent contractor's business of catching and cooping chickens.

There's no doubt that it's incidental to his business, and there's also no doubt that it is incidental to the farmer's business.

You acknowledge that.

The Government acknowledges it.

So, you know, just taking that one example, it's clear that you can be incidental to both, so all of your pains to demonstrate that it is incidental to the processing business lead you nowhere.

One can say yes, I admit it's incidental to processing, but it's also incidental to farming.

Is the purpose of the statute relevant in respect to that, if it's all right... I mean--

--Yes.

That the... nobody... is there some authority that... I mean, the purpose of this statute is to let employees organize, and you don't want to let them organize where they just work for farmers because the farmers didn't have the... they were poorer.

They were poorer, and that's why they didn't have to pay the labor act wages either, or the FLSA wages.

They were poorer, and when somebody works for a big company, they're not under any assumption they're poorer.

I mean, that would be a... does that come into play anywhere in this... I mean, is there some authority that says we can't take into account the purpose of the statute?

Mr. Seamon: --May I answer?

Unknown Speaker: Yes.

Mr. Seamon: The purpose of the statute is highly relevant.

This is a management-labor relations statute that Congress intended to limit to the employees of farmers and not processors.

Unknown Speaker: Thank you, Mr. Seamon.

Mr. Roberts, you have 3 minutes remaining.

Rebuttal of Charles P. Roberts, III

Mr. Roberts: Just a couple of quick responses on some of these regs which have been referred to.

He's ignored several that I think have to be interpreted in conjunction with the ones that he cited.

In particular, section 780.150(k)... excuse me, 151(k), the Secretary of Labor defines the poultry, hauling, grading, cooping and loading poultry are operations that are incidental or that constitute preparation for market.

Also, 780.126, which is cited by this Court in Bayside, specifically says that the activities of a processor when performed on the farm, it envisions this very situation we have here, where the processor has title and is dealing with an independent grower, because this is a very common arrangement.

It says that the processor's employees can be engaged in secondary agriculture to the extent that they are working on a farm.

So if that statute, if that regulation has any meaning, then the board's position that it's incidental, I mean, the processing argument could be made there, too.

it's always incidental to processing in some way if it's a processor, yet this regulation clearly envisions that a processor's employees who work on a farm can be engaged in secondary agriculture.

Plus the case--

Unknown Speaker: What was the number of that again?

Mr. Roberts: --Excuse me?

It's 780.126, plus the case that's cited in there by the Secretary of Labor is Johnston v. Cotton Producers, which is a Fifth Circuit case, but it's cited with approval, and in that case, it dealt with a retail store, which... the reg speaks of retail stores and processors in the same language.

At one time retail stores would hold title to the chickens and then basically perform services for the farmer, and they say in that case that, specifically that chicken, a guy who caught chickens and loaded them on the trucks was engaged in secondary agriculture to the extent that his activities occurred on the farm, so the board's position boils down to the fact that it simply... that it's going to Holly's processing operation, which is inconsistent with this regulation, it's inconsistent with Johnston, it's inconsistent with Maneja, in which the destination of the sugar cane was the processing plant, but that didn't deter the Court from saying that the activities were incidental to farming.

So the board has just gone way beyond interpret... you know, reasonable interpretation of a statute in saying that it can only be incidental to processing in light of all these prior decisions and interpretations.

Unknown Speaker: Mr. Roberts, why do they debeak chickens?

I didn't know they did that.

Why do they do that?

Mr. Roberts: I think it's to actually... they don't take the whole beaks off.

They actually trim them back, and I think the purpose is... and I don't know this for certain, but I think the purpose is to prevent them from harming themselves or each other in some way, that... you know, with the beaks pecking each other, or attacking each other, or something of that nature.

I don't have anything further.

Chief Justice Rehnquist: On that note, the case is submitted.

[Laughter]

Unknown Speaker: The honorable court is now adjurned until Monday next at ten o'clock.