Sanderson Farms Inc v. NLRB

United States Court of Appeals
Fifth Circuit
F I L E D
July 3, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-60522
_______________
SANDERSON FARMS, INC. (PRODUCTION DIVISION),
Petitioner-
Cross-Respondent,
VERSUS
NATIONAL LABOR RELATIONS BOARD,
Respondent-
Cross-Petitioner.
_________________________
Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
_________________________
Before SMITH, WIENER, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Sanderson Farms, Inc. (Production
Division) (“Sanderson Production”), seeks
review of a decision of the National Labor
Relations Board (“NLRB” or “Board”)
finding that live-haul and pull-up drivers
employed at Sanderson Production’s
McComb, Mississippi, facility fell outside the
National Labor Relations Act’s (“NLRA’s”)
exemption to employee status for agricultural

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2
laborers. Sanderson Production argues that
Coleman v. Sanderson Farms, Inc., 629 F.2d
1077, 1081 (5th Cir. 1980), which held that its
drivers were agricultural laborers, controls.
The NLRB has filed a cross-application for
enforcement of its order. Concluding that
Holly Farms Corp. v. NLRB, 517 U.S. 392
(1996), controls and that Coleman is
overruled, we deny the petition for review and
grant the cross-petition for enforcement.
I.
A.
Sanderson Production, a wholly-owned
subsidiary of Sanderson Farms, Inc., purchases
day-old pullet chicks and places them on in-
dependent contract farms, which Sanderson
Production flock supervisors monitor. The
contract farms grow the pullets to a certain
age, at which point Sanderson Production
transfers them to hen farms to produce the
hatching eggs. Sanderson Production then
moves the eggs to its hatchery, where it
incubates and hatches the broiler chicks. Day-
old broiler chicks are sent to a different set of
independent contract farms, which raise them
for about seven weeks. This relationship has
three noteworthy characteristics: (1) Farmers
must raise the broiler chicks in accordance
with Sanderson Production’s Broiler
Production Agreement; (2) Sanderson
Production retains title to the chickens; and (3)
Sanderson Production’s flock supervisors visit
the contract farms at least twice a week to
ensure they have enough feed and to monitor
that the farmers are raising the chickens in
compliance with Sanderson Production’s
extensive requirements.
Once the birds reach a certain weight, San-
derson Production supervisors instruct their
live-haul drivers to pick up the chickens to
bring them to the live-haul shed next to, and
on the same property as, Sanderson Farms,
Inc. (Processing Division) (“Sanderson
Processing”). Sanderson Production’s drivers
report to and work out of the live-haul shed,
but the drivers have little or no contact with
Sanderson Processing. The paychecks that the
drivers receive are issued by Sanderson Farms,
Inc., the parent company. At the independent
contract farms, other employees catch the
chickens and load them onto the trucks; the
drivers are not involved in this activity.1 Once
the live-haul drivers return to the live-haul
shed, the chickens are held there until the pull-
up drivers take them to the processing facility
for slaughter.
B.
The United Food and Commercial Workers
Union, Local 1529 sought an election to be-
come the exclusive bargaining representative
for all live-haul and pull-up drivers employed
at the McComb facility. At the representation
proceeding, Sanderson Production contended
that the drivers were exempt as agricultural
laborers, but the NLRB Regional Director
(“Director”) concluded that Sanderson
Production was not a “farmer,” nor were its
drivers “agricultural laborers” within the
meaning of the exemption in § 2(3) of the
NLRA.2 The Director ordered an election,
and the NLRB affirmed the Director’s finding
that Sanderson Production was not a “farmer.”
1 During hot weather, drivers may be asked to
hose down chickens to keep them cool during the
loading process.
2 The Director also found that Sanderson Pro-
duction and Sanderson Processing constituted a
“single employer,” but the Board found it un-
necessary to rely on that conclusion.

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3
The live-haul and pick-up drivers
subsequently elected the union as their
bargaining representative, but Sanderson
Production refused to bargain. The union filed
a complaint with the NLRB and moved for
summary judgment. The Board ordered
Sanderson Production to bargain.
II.
A.
It is the NLRB’s “‘special duty’ to apply
the [NLRA’s] exemption for agricultural la-
borers to varying fact patterns.” NLRB v. Cal-
Maine Farms, Inc., 998 F.2d 1336, 1339 (5th
Cir. 1993).
In performing that duty, the Board is
charged with construing the [NLRA]
SSincluding its incorporation of the term
“agricultural laborer” as used in the Fair
Labor Standards ActSSliberally in favor
of the workers for whose protection
those laws were designed, and [ ] any
exemption from the terms of those laws
must be narrowly construed.
Id. (citations and internal quotation marks
omitted).
Because the Board engages in an expert
construction of the agricultural laborer
exemption, its decision is entitled to deference
on review. Id.
If a statute’s meaning is plain, the Board
and reviewing courts must give effect to
the unambiguously expressed intent of
Congress. When the legislative
prescription is not free from ambiguity,
the administrator must choose between
conflicting reasonable interpretations.
Courts, in turn, must respect the
judgment of the agency empowered to
apply the law to varying fact patterns,
even if the issue with nearly equal
reason might be resolved one way rather
than another.
Holly Farms, 517 U.S. at 398-99 (citations
and punctuation omitted). To reverse the
Board’s legal interpretation of a statute, we
must decide that the plain meaning of the stat-
ute unambiguously contradicts the Board’s in-
terpretation or that it is inconsistent with prior
Board holdings.3
We review the Board’s factual
determinations for substantial evidence. Cal-
Maine Farms, 998 F.2d at 1339. We must
“consider the totality of evidence in the record,
including ‘that which fairly detracts from the
[Board’s] decision.’” Id. (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951)). There must be “more than a scintilla”
of evidence, or “such relevant evidence as a
reasonable mind would accept as adequate to
support a conclusion.” Id. (citations and
internal quotation marks omitted).
B.
The protections of the NLRA, including the
right to bargain through a union, extend only
to “employees;” this term, as defined by the
Act, excludes “any individual employed as an
3 Bayside Enterprises, Inc. v. NLRB, 429 U.S.
298, 303-04 (1977) (finding the Board’s con-
clusion “that these truck drivers are not agri-
cultural laborers is based on a reasonable inter-
pretation of the statute, is consistent with the
Board’s prior holdings, and is supported by the
Secretary of Labor’s construction of [section]
3(f)”); see Holly Farms, 517 U.S. at 401 (exam-
ining the Board’s position only for “its reason-
ableness as an interpretation of the governing
legislation,” despite finding Holly Farms’s legal
position plausible).

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4
agricultural laborer.” 29 U.S.C. § 152(3).
The NLRA contains no definition for
“agricultural laborer,” but Congress has long
provided that this term derives its meaning
from the definition of “agriculture” supplied by
§ 3(f) of the Fair Labor Standards Act
(“FLSA”),4 which provides, in relevant part:
Agriculture includes farming in all its
branches and among other things
includes . . . the raising of livestock,
bees, fur-bearing animals, or poultry,
and any practices . . . performed by a
farmer or on a farm as incident to or in
conjunction with such farming
operations, including preparation for
market, delivery to storage or to market
or to carriers for transportation to
market.
29 U.S.C. § 203(f) (emphasis added).
This definition “includes farming in both a
primary and secondary sense.” Bayside, 429
U.S. at 300.
“Primary farming” includes the
occupations listed first in § 3(f): “the
cultivation and tillage of the soil,
dairying, the production, cultivation,
growing, and harvesting of any
agricultural or horticultural commodities
. . . [and] the raising of livestock, bees,
fur-bearing animals, or poultry.” 29
U.S.C. § 203(f). “Secondary farming”
has a broader meaning, encompassing,
as stated in the second part of § 3(f):
“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, delivery to storage or to market
or to carriers for transportation to
market.”
Holly Farms, 517 U.S. at 397.
Though the raising of poultry falls squarely
within the ambit of primary farming, “hauling
products to or from a farm is not primary
farming” and may be considered secondary
farming only “if it is work performed ‘by a
farmer or on a farm as an incident to or in
conjunction with such farming opera-
tions . . . .’” Bayside, 429 U.S. at 300-01.
Discussing poultry producers, the Court has
found that “[a]n employer’s business may in-
clude both agricultural and nonagricultural ac-
tivities.” Id. at 301. Thus, even though a
poultry producer may be characterized as a
farmer with respect to some of its operations,
that status does not extend automatically to all
of its operations.
C.
Sanderson Production contends that
because the company is engaged in raising
poultry, it is a farmer engaged in primary
farming. It argues that its drivers are
4 Annually, since 1946, Congress has so in-
structed in riders to Appropriations Acts for the
Board. See Holly Farms, 517 U.S. at 397. The
most recent incarnation states that “no part of this
appropriation shall be available to organize or as-
sist in organizing agricultural laborers or used in
connection with investigations, hearings, directives,
or orders concerning bargaining units composed of
agricultural laborers . . . and as defined in section
3(f) of the [FLSA], and including in said definition
employees engaged in the maintenance and
operation of ditches, canals, reservoirs, and
waterways when maintained or operated on a
mutual, nonprofit basis and at least 95 percent of
the water stored or supplied thereby is used for
farming purposes.” Consolidated Appropriations
Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11
(2003).

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5
employed to assist in the raising of poultry,
and thus are engaged in secondary farming
activities in conjunction with Sanderson
Production’s primary farming operations,
including “delivery to storage or to market.”
The Supreme Court has affirmed the
Board’s consistent conclusion that “when an
employer contracts with independent growers
for the care and feeding of an employer’s
chicks, the employer’s status as farmer
engaged in raising poultry ends with respect to
those chicks.” Id. at 302 & n.9 (quoting In re
Imco Poultry, 202 N.L.R.B. 259, 260 (1973)).
The Board has characterized the activities of
poultry producer employees who handle and
transport chicks on independent farms as en-
gaged “in nonfarming operations which are in-
cident to, or in conjunction with, a separate
and distinct business activity of the [poultry
producer], i.e., shipping and marketing.” Imco
Poultry, 202 N.L.R.B. at 260-61; In re Norton
& McElroy, 133 N.L.R.B. 104, 107 (1961).
Against this contrary precedent, Sanderson
Production appears to argue that it maintains
great enough control over its independent con-
tract farmers such that the company never los-
es its status as a farmer, or that its status as a
farmer resumes when it retrieves the chicks
from the independent contract farmers.5 The
work of the live-haul and pull-up drivers, ac-
cordingly, is performed “by a farmer.” The
Board, however, concluded that Sanderson
Production’s status as farmer ceases when it
sends its chicks to independent contract farms.
Bayside concerned the status of drivers that
transported poultry feed from the producer’s
feedmill to numerous independent contract
farms. See Bayside, id. at 301-02. Bayside
provided each farm with chicks, feed,
medicine, fuel, litter and vaccine; dropped off
and picked up the chicks; and retained title to
the chicks. Id. Despite the “pervasive
character of [the producer’s] control over the
raising of the chicks,” the Court concluded
that the farming activity of such independent
growers cannot be attributed to the poultry
producer. Id. at 302. Furthermore, in Holly
Farms the Court held that when live-haul
drivers “arrive on the independent farms to
collect broilers for carriage to slaughter and
processing, Holly Farms does not resume its
status as ‘farmer’ with respect to those birds,
the status Holly Farms had weeks before,
when the birds were hatched in its hatcheries.”
Holly Farms, 517 U.S. at 400.
5 Sanderson Production also supports its con-
tention that it remains engaged in primary farming
by citing Nat’l Broiler Marketing Ass’n v. United
States, 436 U.S. 816 (1978), in which the Court
found that companies not engaging in certain types
of activities were not farmers, id. at 827-28.
Sanderson Production argues that because it en-
gages in these activities, i.e. owning a breeder flock
and a hatchery, it necessarily must be a farmer.
We disagree. The Court’s conclusion does not
dictate that engaging in said activities is sufficient
(continued...)
5 (...continued)
to render an organization a farmer in all of its
activities. In National Broiler, the Court was
interpreting the definition of “farmer” under the
Capper-Volstead Act, a law that allowed farmers
to form a certain type of agricultural organization
without violating antitrust laws. See Nat’l Broiler,
436 U.S. at 824-25. There is no obvious
connection between the use of “farmer” in this Act
to the interpretation of “farmer” under the NLRA
or FLSA. National Broiler can be further distin-
guished because it was an antitrust suit that made
no reference to, nor required any deference to, the
NLRB’s interpretation of what constitutes farming
activity.

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6
Consistent with the Board’s decisions af-
firmed by the Supreme Court, Sanderson Pro-
duction is not a farmer when it sends its live-
haul drivers to retrieve chickens from
independent farms and take them to slaughter.
The drivers also cannot derive their status
from the work of the independent farms, be-
cause these farms do not employ the drivers.
Sanderson Production does not appear to ar-
gue that the live-haul drivers and pull-up
drivers work “on a farm” for purposes of the
FLSA definition of agriculture.6 Therefore,
the Board’s decision that the truck drivers are
not agricultural laborers engaged in secondary
farming is reasonable and is supported by sub-
stantial evidence.7
D.
Sanderson Production argues that
Coleman, 629 F.2d at 1080-81, which
distinguished Bayside but preceded Holly
Farms, controls. The Coleman court, also
considering the operations of Sanderson
Production’s live-haul and pull-up drivers,
found that “unlike the operation of a feedmill
in Bayside, Sanderson’s practice here must be
characterized as agricultural activity.” Id. at
1081. It based this conclusion on the assertion
that “[t]ransportation of grownout broiler
chickens from the contract farms where they
are raised to the processing plants where they
are sold is clearly work performed ‘by a farmer
. . . as an incident to or in conjunction with’
Sanderson’s primary farming task of raising
poultry.” Id. It explained further that such
transportation came within the secondary
farming language of “preparation for market”
6 In any event, the drivers do not work “on a
farm,” because neither Sanderson Production nor
the live-haul shed is considered to be a farm at the
point during which the drivers’ perform their work
duties. Further, the drivers participate in none of
the activities, such as catching and loading chick-
ens, that arguably occur “on a farm.”
7 Sanderson Production attempts to distinguish
Holly Farms by arguing that Holly Farms never
addressed whether live-haul employees were en-
gaged in the primary farming task of raising poul-
try. Sanderson Production fails, however, to make
an argument that the drivers are engaged in pri-
mary agriculture; it contends only that its “live-
haul and pull-up drivers perform secondary farm-
ing activities in conjunction with Sanderson Pro-
duction’s primary farming operations, including
‘delivery to storage or to market.’” (Emphasis
added.)
Sanderson Production also argues that, unlike
the petitioner in Holly Farms, it is formally sepa-
rate from Sanderson Processing, thus the drivers
are actually hauling chickens “to market” when
they deliver them to the processing facility. The
Board rejected this contention, finding that San-
(continued...)
7 (...continued)
derson Farms, Inc., is a vertically integrated en-
terprise. We need not review the Board’s finding.
In Holly Farms, the Court’s discussion of whether
workers were more connected to processing or to
farming operations concerned only the chicken
catchers and the forklift operators. Holly Farms,
517 U.S. at 401. The Court was concerned with
whether the catching and loading of chickens was
“work performed on a farm as incident to the rais-
ing of poultry,” or was more related to the pro-
cessing and slaughter of the chickens. Id. In con-
trast to that analysis, the Court quickly concluded
that truck drivers were not agricultural laborers.
Id. at 400-401.
This case concerns only truck drivers, who are
separate from the workers that catch and load the
chickens. Irrespective of whether Sanderson
Farms, Inc., is vertically integrated, the drivers
cannot be considered agricultural laborers, because
they are not engaging in practices by a farmer or
on a farm.

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and “delivery to storage or to market.” Id.
Sanderson Production argues that the Board
erred in not relying on Coleman, because that
case addressed exactly the same company and
practices at issue here.
Similar to Holly Farms, and dissimilar to
Coleman, this case arises from a dispute over
union representation and requires deference to
a Board decision. Given the procedural
posture and in light of Bayside and Holly
Farms, we have no difficulty finding that this
case is, at a minimum, distinguishable from
Coleman.8
Furthermore, Coleman is necessarily
overruled by Holly Farms. In both cases, the
respective employers conceded that the drivers
were not engaged in primary farming and did
not work “on a farm.”9 Therefore Coleman,
like Holly Farms, considered whether the driv-
ers performed work “by a farmer . . . as an
incident to or in conjunction with [] farming
operations, including . . . delivery . . . to
market or to carriers for transportation to
market.” 29 U.S.C. § 203(f).10 Both courts
also appear to have agreed that “[w]hen an
integrated poultry producer ‘contracts with
independent growers for the care and feeding
of [its] chicks, [its] status as a farmer engaged
in raising poultry ends with respect to those
chicks.’”11
8 Coleman distinguished Bayside by stating that
“[g]iven the different procedural posture of this
case and a different agency, the policy of judicial
deference to the administrative determinations of
the . . . Board is inapplicable.” Coleman, 629 F.2d
at 1081 n.4. Here, it is unnecessary to decide, and
therefore we decline to reach, whether this holding
survives the requirements of judicial deference to
interpretations rendered through agency
adjudication laid down by Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), and its progeny. See United
States v. Mead Corp., 533 U.S. 218, 230 (“We
have recognized a very good indicator of delegation
meriting Chevron treatment in express con-
gressional authorizations to engage in the process
of rulemaking or adjudication that produces reg-
ulations or rulings for which deference is
claimed.”).
9 Compare Holly Farms, 517 U.S. at 401
(“Holly Farms acknowledges that these crew mem-
bers do not work ‘on a farm.’”), with Coleman,
(continued...)
9 (...continued)
629 F.2d at 1080 (“Since there is no claim that
these drivers work ‘on a farm . . .’”).
10 Compare Holly Farms, 517 U.S. at 403 n.8
(“The Board reasonably responds . . . that . . . [a]
feed-haul driver . . . must perform his or her work
‘as an incident to or in conjunction with such
farming operations’ in order to fall under the ag-
ricultural exemption.”), with Coleman, 629 F.2d at
1081 (“Transportation of grownout broiler chick-
ens from the contract farms where they are raised
to the processing plants where they are sold is
clearly work performed ‘by a farmer . . . as an
incident to or in conjunction with’ Sanderson’s
primary farming task of raising poultry.”).
11 Holly Farms, 517 U.S. at 400 (quoting Bay-
side, 429 U.S. at 302 n.9); see also Coleman, 629
F.2d at 1080 (“In [NLRB v.] Strain Poultry
[Farms, Inc., 405 F.2d 1025, 1032 (5th Cir.
1969),] we found that live haul drivers were em-
ployed in agriculture because the agricultural ac-
tivities of independent contract growers were at-
tributable to their employer. [The employer in
Bayside] proposed that rationale in its own favor,
arguing that the agricultural activity conducted on
the independent growing farms was a part of its
own farming operations. The Supreme Court,
however, expressly rejected that analysis.”).

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Therefore, the Coleman court must have
believed that when the drivers retrieved the
chickens from the contract farmers and took
them to “market,” Sanderson Production’s
status as a “farmer” before it gave the chicks
to the contract farmers was somehow still
relevant to the drivers. Otherwise, the drivers’
work could not have been “incident to or in
conjunction with farming operations.” In Hol-
ly Farms, however, after noting that delivering
chicks to an independent contract farmer ends
the producer’s farmer status with respect to
those chicks, the Court held that
[a]ccordingly, when the live-haul
employees arrive on the independent
farms to collect broilers for carriage to
slaughter and processing, Holly Farms
does not resume its status as “farmer”
with respect to those birds, the status
Holly Farms had weeks before, when the
birds were hatched in its hatcheries.
This conclusion, we note, entirely
disposes of the contention that the
truckdrivers are employed in secondary
agriculture[.]
517 U.S. at 400-401 (emphasis added).
This differenceSSthe only point of
d is a g r e e me n t b e t w e e n t h e t w o
opinionsSScannot be explained away by
differences in the respective standards of
review. The Court was not merely affirming
the NLRB’s determination; rather, it was
stating its opinion that the determination
logically flowed from the prior proposition.
We are bound to follow this determination,
and Coleman is overruled.12
Because Sanderson Productions’s grounds
for review lack merit, its petition is DENIED.
the Board’s motion for an enforcement order
is GRANTED.
12 Although the Supreme Court has not ex-
plicitly overruled Coleman, it purported to grant
(continued...)
12 (...continued)
certiorari in Holly Farms “to resolve the division
of authority” between courts that classified live-
haul workers as employees and courts that found
such workers to be engaged in agriculture. Holly
Farms, 517 U.S. at 397 (citing Coleman).

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