[ Ginsburg ]
[ O'Connor ]
HOLLY FARMS CORPORATION, et al., PETITIONERS v. NATIONAL
LABOR RELATIONS LABOR BOARD et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
The Court devotes the bulk of its opinion to an analysis of the reasonableness of the National Labor Relations Board's (Board) interpretation of the statute, but gives remarkably short shrift to the statute itself. The Court dismisses Holly Farms' claim that the plain language of the statute covers the chicken catchers and forklift operators with the conclusory remark that Holly Farms' reading of the statute is "a plausible, but not an inevitable, construction of §3(f)." Ante, at 8. In my view, however, the language of the statute is unambiguous.
As we said in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): "[F]irst, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id., at 842-843. None of our precedents sanction blind adherence to the Board's position when it is directly contrary to the plain language of the relevant statute. See, e.g., NLRB v. Brown, 380 U.S. 278, 291 (1965) ("Reviewing courts are not obliged to stand aside and rubber stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute"); American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965) ("The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia . . ."). Section 3(f) of the FLSA defines agriculture as "farming in all its branches," including "the raising of . . . poultry," as well as "any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." 29 U.S.C. § 203(f) (emphasis added). The coverage intended by Congress under both the FLSA and the NLRA is best determined by consulting the language of the statute at issue. Because the relevant portions of §3(f) are perfectly plain and "directly [speak] to the precise question at issue," Chevron, supra, at 842, I would hold that the chicken catchers and forklift operators are agricultural laborers and that the Board's contrary conclusion does not deserve deference.
The Court's determination rests largely upon a misreading of the statute in two respects. First, the Court tethers the "or on a farm" clause of §3(f) to the employment relationship (or lack thereof) between the chicken catchers and forklift operators and the independent farmer who is charged with raising the chickens. And second, the Court decides that the secondary farming activities performed by the chicken catchers and fork lift operators must not only be "incident" to the independent farmer's primary farming activities, but must be "mainly" or "most tightly" tied thereto. Neither conclusion finds support in the language of §3(f).
The Court's first error stems from its adoption of the NLRB's focus on the lack of a direct employment relationship between the live haul workers and the independent growers. But the "or on a farm" clause nowhere mentions the nature of the employment relationship. Instead, it is plainly concerned only with the nature of the work performed by the worker. The Board's interpretation must be rejected, as it would read the "or on a farm" clause out of the statute entirely.
The Court relies on the legislative history underlying the "or on a farm" clause, which we described in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763 (1949). That history reveals that the clause was intended to include within the statutory definition work performed on a farm that was "necessary to" the farming operations but not performed by the farmer himself. Id., at 767. One example figures prominently in the legislative history: a wheat thresher who travels from farm to farm performing wheat threshing chores for small farmers on a contract basis. The Court reasons that Holly Farms' employees are unlike the fictional wheat thresher, however, in that they are employed by Holly Farms, rather than by the independent growers themselves. See ante, at 9, n. 8 ("If the chicken catching crews were employed by the independent growers, rather than by Holly Farms' processing operation, those crews would more closely resemble the wheat threshers contemplated by the framers of §3(f)").
The Court and the Board emphasize formal contractual arrangements to the virtual exclusion of practical realities. The fact that Holly Farms supplies the services of the chicken catchers and forklift operators seems entirely beside the point; the work performed by these employees is precisely the same whether they are hired by Holly Farms or by the independent growers. And the notion that Congress intended the status of the chicken catchers and forklift operators to turn on such a readily manipulable criterion strains credibility. If the live haul crew's status depends only upon who "hires" them to perform the work, Holly Farms can simply charge the independent growers with raising and catching, caging, and cooping the chickens, and require the independent growers to hire Holly Farms' own live haul workers to perform those tasks.
The Court's quotation from Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259 (1973), reveals precisely where the Board and the Court have gone astray: The Board takes the position that live haul workers " `cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations.' " Ante, at 12 (quoting Imco Poultry, supra, at 260). But the statute does not require that work be performed "incident to or in conjunction with" one's employer's farming operations, but only incident to or in conjunction with "such" farming operations--the antecedent for which term is plainly the first clause of §3(f), to wit, "farming in all its branches," including "the raising of . . . poultry." If the sine qua non of status as an agricultural laborer is employment by the farmer or the independent grower, the "or on a farm" clause is redundant, because chicken catching crews that are agents or employees of the farmers themselves fall within the "by a farmer" clause. Ordinarily, "terms connected by a disjunctive [are] given separate meanings, unless the context dictates otherwise." Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). The "or on a farm" clause has independent significance only if the work encompassed by that clause is performed by someone other than a farmer or the farmer's own agents or employees. Chevron deference is not owed to a Board construction of the statute that effectively redacts one of the statute's operative clauses.
The Court also cites with approval a Department of Labor (DOL) interpretive regulation that addresses contractual arrangements for raising poultry such as those between Holly Farms and the independent growers. The DOL regulation declares that "[e]mployees of [a] feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `secondary' agriculture." 29 CFR § 780.126 (1995). The Court thus accepts as reasonable a DOL regulation that plainly suggests that even workers employed by a poultry processor such as Holly Farms can be engaged in secondary agriculture and also accepts as reasonable a Board interpretation of §3(f) that, in essence, dictates that employees of a processor cannot be employed in secondary agriculture. See ante, at 12 ("We think it sensible . . . that the Board homed in on the status of the live haul crews' employer") (emphasis in original). The Court cannot have it both ways, and it need not, since the "or on a farm" clause is plainly indifferent to the nature of the employment relationship.
The Court's second misstep likewise derives from its deference to a Board construction that lacks foundation in the statute. Section 3(f) exempts work performed "as an incident to or in conjunction with" primary farming operations. The statutory language manifestly does not disqualify the work from agricultural status if it also "serves," ante, at 16, or is "tied to," ante, at 15, some other enterprise. Even accepting the Court's conclusion that the work of the chicken catchers and forklift operators is "incident to" Holly Farms' processing operations, those workers fall within the §3(f) definition so long as their work is also "incident to or in conjunction with" the farming operations performed by the independent growers.
As Holly Farms points out, the Board's contrary position hinges on the premise that a given activity can only be incident to one thing--either processing or farming, but not both. But the Board's position cannot be squared with the statute itself, which places no conditions upon the statutory prerequisite that work be "incident to or in conjunction with" covered farming operations. Indeed, the wheat thresher of the legislative history was clearly performing work "incident to" the business operations of the wheat threshing enterprise as well as "incident to" the farmer's farming operations. The statutory requirement is simple, and the imposition of a more stringent prerequisite must be rejected as contrary to the statute itself.
When the chicken catchers and forklift operators arrive at the farm of an independent grower to catch, cage, and load the live chickens in preparation for their delivery to market, they are certainly doing work that is directly related to the farming operations that occurred on that very farm during the preceding weeks: the raising of poultry. As Holly Farms points out, unless the chickens are caught, caged, and removed from the farm, the independent grower's farming operations will have been for naught. The independent grower must see to it that the chickens grow to the designated age and are caught, removed, and replaced with new chicks for the next growing cycle. See Brief for Petitioners 23. And the fact that §3(f) lists "preparation for market" as one of the activities that customarily is "incident to or in conjunction with" covered farming operations buttresses petitioners' argument.
The Court's response relies on the facts that the independent grower's contractual duties have ended, that the workers punch a time clock in Holly Farms' processing plant rather than in Farmer Brown's barn, and that Holly Farms rather than the independent grower signs their paychecks at the end of the day. But these facts are irrelevant to the statutory definition. Section 3(f) asks only whether the chicken catchers and forklift operators perform work "on a farm" (which all parties concede they do) and whether that work is "incident to or in conjunction with such farming operations"--that is, whether the activities of the chicken catching crews are "incident to" the covered farming operations that take place on the farms of the independent growers, the raising of poultry for slaughter. To that question, there can be only one answer.
Because the Court today defers to an NLRB interpretation that runs directly contrary to the statutory language, I respectfully dissent from the Court's conclusion with respect to the chicken catchers and forklift operators.