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United States Court of Appeals
Fifth Circuit
F I L E D
In the
July 3, 2003
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
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,
review of a decision of the National Labor
Circuit Judges.
Relations Board ("NLRB" or "Board")
finding that live-haul and pull-up drivers
JERRY E. SMITH, Circuit Judge:
employed at Sanderson Production's
McComb, Mississippi, facility fell outside the
Sanderson Farms, Inc. (Production
National Labor Relations Act's ("NLRA's")
Division) ("Sanderson Production"), seeks
exemption to employee status for agricultural

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

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

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

employed to assist in the raising of poultry,
work of the live-haul and pull-up drivers, ac-
and thus are engaged in secondary farming
cordingly, is performed "by a farmer." The
activities in conjunction with Sanderson
Board, however, concluded that Sanderson
Production's primary farming operations,
Production's status as farmer ceases when it
including "delivery to storage or to market."
sends its chicks to independent contract farms.
The Supreme Court has affirmed the
Bayside concerned the status of drivers that
Board's consistent conclusion that "when an
transported poultry feed from the producer's
employer contracts with independent growers
feedmill to numerous independent contract
for the care and feeding of an employer's
farms. See Bayside, id. at 301-02. Bayside
chicks, the employer's status as farmer
provided each farm with chicks, feed,
engaged in raising poultry ends with respect to
medicine, fuel, litter and vaccine; dropped off
those chicks." Id. at 302 & n.9 (quoting In re
and picked up the chicks; and retained title to
Imco Poultry, 202 N.L.R.B. 259, 260 (1973)).
the chicks. Id. Despite the "pervasive
The Board has characterized the activities of
character of [the producer's] control over the
poultry producer employees who handle and
raising of the chicks," the Court concluded
transport chicks on independent farms as en-
that the farming activity of such independent
gaged "in nonfarming operations which are in-
growers cannot be attributed to the poultry
cident to, or in conjunction with, a separate
producer. Id. at 302. Furthermore, in Holly
and distinct business activity of the [poultry
Farms the Court held that when live-haul
producer], i.e., shipping and marketing." Imco
drivers "arrive on the independent farms to
Poultry, 202 N.L.R.B. at 260-61; In re Norton
collect broilers for carriage to slaughter and
& McElroy, 133 N.L.R.B. 104, 107 (1961).
processing, Holly Farms does not resume its
status as `farmer' with respect to those birds,
Against this contrary precedent, Sanderson
the status Holly Farms had weeks before,
Production appears to argue that it maintains
when the birds were hatched in its hatcheries."
great enough control over its independent con-
Holly Farms, 517 U.S. at 400.
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
5 (...continued)
to render an organization a farmer in all of its
activities. In National Broiler, the Court was
5 Sanderson Production also supports its con-
interpreting the definition of "farmer" under the
tention that it remains engaged in primary farming
Capper-Volstead Act, a law that allowed farmers
by citing Nat'l Broiler Marketing Ass'n v. United
to form a certain type of agricultural organization
States, 436 U.S. 816 (1978), in which the Court
without violating antitrust laws. See Nat'l Broiler,
found that companies not engaging in certain types
436 U.S. at 824-25. There is no obvious
of activities were not farmers, id. at 827-28.
connection between the use of "farmer" in this Act
Sanderson Production argues that because it en-
to the interpretation of "farmer" under the NLRA
gages in these activities, i.e. owning a breeder flock
or FLSA. National Broiler can be further distin-
and a hatchery, it necessarily must be a farmer.
guished because it was an antitrust suit that made
We disagree. The Court's conclusion does not
no reference to, nor required any deference to, the
dictate that engaging in said activities is sufficient
NLRB's interpretation of what constitutes farming
(continued...)
activity.
5

Consistent with the Board's decisions af-
D.
firmed by the Supreme Court, Sanderson Pro-
Sanderson Production argues that
duction is not a farmer when it sends its live-
Coleman, 629 F.2d at 1080-81, which
haul drivers to retrieve chickens from
distinguished Bayside but preceded Holly
independent farms and take them to slaughter.
Farms, controls. The Coleman court, also
The drivers also cannot derive their status
considering the operations of Sanderson
from the work of the independent farms, be-
Production's live-haul and pull-up drivers,
cause these farms do not employ the drivers.
found that "unlike the operation of a feedmill
Sanderson Production does not appear to ar-
in Bayside, Sanderson's practice here must be
gue that the live-haul drivers and pull-up
characterized as agricultural activity." Id. at
drivers work "on a farm" for purposes of the
1081. It based this conclusion on the assertion
FLSA definition of agriculture.6 Therefore,
that "[t]ransportation of grownout broiler
the Board's decision that the truck drivers are
chickens from the contract farms where they
not agricultural laborers engaged in secondary
are raised to the processing plants where they
farming is reasonable and is supported by sub-
are sold is clearly work performed `by a farmer
stantial evidence.7
. . . as an incident to or in conjunction with'
Sanderson's primary farming task of raising
poultry." Id. It explained further that such
6 In any event, the drivers do not work "on a
transportation came within the secondary
farm," because neither Sanderson Production nor
farming language of "preparation for market"
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-
7 (...continued)
ens, that arguably occur "on a farm."
derson Farms, Inc., is a vertically integrated en-
terprise. We need not review the Board's finding.
7 Sanderson Production attempts to distinguish
In Holly Farms, the Court's discussion of whether
Holly Farms by arguing that Holly Farms never
workers were more connected to processing or to
addressed whether live-haul employees were en-
farming operations concerned only the chicken
gaged in the primary farming task of raising poul-
catchers and the forklift operators. Holly Farms,
try. Sanderson Production fails, however, to make
517 U.S. at 401. The Court was concerned with
an argument that the drivers are engaged in pri-
whether the catching and loading of chickens was
mary agriculture; it contends only that its "live-
"work performed on a farm as incident to the rais-
haul and pull-up drivers perform secondary farm-
ing of poultry," or was more related to the pro-
ing activities in conjunction with Sanderson Pro-
cessing and slaughter of the chickens. Id. In con-
duction's primary farming operations, including
trast to that analysis, the Court quickly concluded
`delivery to storage or to market.'" (Emphasis
that truck drivers were not agricultural laborers.
added.)
Id. at 400-401.
Sanderson Production also argues that, unlike
This case concerns only truck drivers, who are
the petitioner in Holly Farms, it is formally sepa-
separate from the workers that catch and load the
rate from Sanderson Processing, thus the drivers
chickens. Irrespective of whether Sanderson
are actually hauling chickens "to market" when
Farms, Inc., is vertically integrated, the drivers
they deliver them to the processing facility. The
cannot be considered agricultural laborers, because
Board rejected this contention, finding that San-
they are not engaging in practices by a farmer or
(continued...)
on a farm.
6

and "delivery to storage or to market." Id.
like Holly Farms, considered whether the driv-
Sanderson Production argues that the Board
ers performed work "by a farmer . . . as an
erred in not relying on Coleman, because that
incident to or in conjunction with [] farming
case addressed exactly the same company and
operations, including . . . delivery . . . to
practices at issue here.
market or to carriers for transportation to
market." 29 U.S.C. � 203(f).10 Both courts
Similar to Holly Farms, and dissimilar to
also appear to have agreed that "[w]hen an
Coleman, this case arises from a dispute over
integrated poultry producer `contracts with
union representation and requires deference to
independent growers for the care and feeding
a Board decision. Given the procedural
of [its] chicks, [its] status as a farmer engaged
posture and in light of Bayside and Holly
in raising poultry ends with respect to those
Farms, we have no difficulty finding that this
chicks.'"11
case is, at a minimum, distinguishable from
Coleman.8
Furthermore, Coleman is necessarily
overruled by Holly Farms. In both cases, the
9 (...continued)
respective employers conceded that the drivers
629 F.2d at 1080 ("Since there is no claim that
were not engaged in primary farming and did
these drivers work `on a farm . . .'").
not work "on a farm."9 Therefore Coleman,
10 Compare Holly Farms, 517 U.S. at 403 n.8
("The Board reasonably responds . . . that . . . [a]
8 Coleman distinguished Bayside by stating that
feed-haul driver . . . must perform his or her work
"[g]iven the different procedural posture of this
`as an incident to or in conjunction with such
case and a different agency, the policy of judicial
farming operations' in order to fall under the ag-
deference to the administrative determinations of
ricultural exemption."), with Coleman, 629 F.2d at
the . . . Board is inapplicable." Coleman, 629 F.2d
1081 ("Transportation of grownout broiler chick-
at 1081 n.4. Here, it is unnecessary to decide, and
ens from the contract farms where they are raised
therefore we decline to reach, whether this holding
to the processing plants where they are sold is
survives the requirements of judicial deference to
clearly work performed `by a farmer . . . as an
interpretations rendered through agency
incident to or in conjunction with' Sanderson's
adjudication laid down by Chevron U.S.A. Inc. v.
primary farming task of raising poultry.").
Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), and its progeny. See United
11 Holly Farms, 517 U.S. at 400 (quoting Bay-
States v. Mead Corp., 533 U.S. 218, 230 ("We
side, 429 U.S. at 302 n.9); see also Coleman, 629
have recognized a very good indicator of delegation
F.2d at 1080 ("In [NLRB v.] Strain Poultry
meriting Chevron treatment in express con-
[Farms, Inc., 405 F.2d 1025, 1032 (5th Cir.
gressional authorizations to engage in the process
1969),] we found that live haul drivers were em-
of rulemaking or adjudication that produces reg-
ployed in agriculture because the agricultural ac-
ulations or rulings for which deference is
tivities of independent contract growers were at-
claimed.").
tributable to their employer. [The employer in
Bayside] proposed that rationale in its own favor,
9 Compare Holly Farms, 517 U.S. at 401
arguing that the agricultural activity conducted on
("Holly Farms acknowledges that these crew mem-
the independent growing farms was a part of its
bers do not work `on a farm.'"), with Coleman,
own farming operations. The Supreme Court,
(continued...)
however, expressly rejected that analysis.").
7

Therefore, the Coleman court must have
Because Sanderson Productions's grounds
believed that when the drivers retrieved the
for review lack merit, its petition is DENIED.
chickens from the contract farmers and took
the Board's motion for an enforcement order
them to "market," Sanderson Production's
is GRANTED.
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
12 (...continued)
certiorari in Holly Farms "to resolve the division
of authority" between courts that classified live-
12 Although the Supreme Court has not ex-
haul workers as employees and courts that found
plicitly overruled Coleman, it purported to grant
such workers to be engaged in agriculture. Holly
(continued...)
Farms, 517 U.S. at 397 (citing Coleman).
8