TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Representation Cases 61
(1) Agricultural Laborers
A continuing rider to the Boat d's appropnation act requires the
Board to determine "agricultui al laborei" status so as to conform to
the definition of the teim "agricultule" in section 3(f) of the Fair
Labor Standards Act
In applying the statutory terms, it is the Board's policy "to follow
vvhenever possible" the interpretation of section 3(f) by the Dept"' t-
ment of Labor 12 Thus, employees engaged in the raising, butcheiing,
packing, freezing, and distribution of rainbow trout were held not
agricultural laboreis but "employees" in view of the ruling of the Department
of Labor that employees engaged in "fish fanning" of the
type involved here are not employed in aglicultule within the meaning
of section 3(f) ld
Employees at a dairy farming and milk pi ocessing operation who
are regularly employed full time in pi oce,ssing, bottling, and delivering
milk and other dairy products were held not ag," 'cultural laborers 14
On the other hand, individuals who tend cattle', raise poultry, and
handle milk and eggs on a dairy and poultiy faim w eie held agticultural
laboiers under section 2(3) 25
(2) Independent Contractors
In determining whether an individual is an independent conti actor
rather than an employee, and therefoie must be excluded flout a pi o
posed bargaining unit, the Board has consistently applied the "i ightof-control"
test 26 This test is based on whether the pet son foi w ham
the individual pei forms services has retained contiol not only over
the result to be achieved but also over the manner in which the work
19 to be performed The resolution of this question depends on the
facts of each case, and no one factor is determinative 17
In one case the Boat d held that newpaper distributois were employces
rather than independent contractols because the employe' "eseived
the right to control, when and as it saw fit, the manne" and means, as
well as the result, of the distributors' work 15 Hele, the fact that
social security and withholding taxes were not deducted and that the
distributors owned their own bucks and lined helpers if needed, was
"Snake River Trout Co • 129 NLRB 41 See also Twent3 fifth Annual Report, p 43
23 Snake River Trout Co, abo%e
Shoenberg Farms, 129 NLRB 966 citing II A Bider tt Sons, 117 NLRB 517 (1957)
15 Pine State Creamery Co , 130 NLRB 892
" The test applies equally in determining %%both( r the [rut ticular Indlidua1s ina3 prop
erly be included in a bargaining unit under sec 9 of the act, and where their employee
status for the purposes of the unfair laboi make p1 ON Ni011$ of CPC 8 is in Bane
'I Buffalo Courser Express, Ino , 129 NLRB 932., Lindsay Ncu,spapera, lac, 130 NLRB
680, Mohican TrucLIng Co. 131 NLRB No 148
13 Buffalo Courier Express, Inc , above, distinguishing P 0 Publishing Co, 114 NLRB GO
(1955)