494 F2d 518 McElrath Poultry Company Inc v. National Labor Relations Board

494 F.2d 518

86 L.R.R.M. (BNA) 2687, 74 Lab.Cas. P 10,060

McELRATH POULTRY COMPANY, INC., Petitioner-Cross Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
No. 73-3430 Summary Calendar.*
*Rule 18, 5th Cir.; Isbell Enterprises, Inc.
Citizens Casualty Company of New York et al., 5th Cir. 1970,
431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

May 23, 1974.

J. Roy Weathersby, William B. Paul, Atlanta, Ga., for petitioner.

Elliott Moore, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., Walter C. Phillips, Reg. Director, N.L.R.B., Region 10, Atlanta, Ga., for respondent.

Before WISDOM, GOLDBERG and GEE, Circuit Judges.


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In this enforcement proceeding, with cross-petition for review, the NLRB acknowledges '. . . that disposition of the jurisdictional issue in the present case is controlled by this Court's decision in Abbott Farms, Inc. v. N.L.R.B., 487 f.2d 904 (1973), in which, on similar facts, this Court found that the Board's bargaining order was not entitled to enforcement because the employees in the certified unit were agricultural laborers.'1


It nevertheless '. . . adheres to its position that employees like those in the present case are employees covered by the National Labor Relations Act . . ., and are not exempted from that coverage as agricultural laborers under Section 3(f) of the Fair Labor Standards Act . . . and Section 2(3) of the Act.'

The Board lacks jurisdiction.2


Enforcement denied.


Two of the employees involved were primarily truck drivers, as in Abbott. One was a full-time mechanic who maintained the trucks. 'By a parity of reasoning, those employees who repair the mechanical implements used in farming are also included within the agricultural exemption.' Maneja v. Waialua Agricultural Co., 349 U.S. 254, 263, 75 S.Ct. 719, 725, 99 L.Ed. 1040 (1955)


Abbott Farms, Inc. v. N.L.R.B., 487 F.2d 904 (5th Cir. 1973); N.L.R.B. v. Victor Ryckebosch, Inc., 471 F.2d 20 (9th Cir. 1972); N.L.R.B. v. Strain Poultry Farms, Inc., 405 F.2d 1025 (5th Cir. 1969); Mitchell 341 (N.D.Ga.1960). Supp. 341 (N.D.Ga.1960)