Supreme Court News

by William Funk
Professor, Lewis and Clark Law School
Editor, Administrative and Regulatory Law News

In one of its first decisions of the new term, the Supreme Court unanimously decided that the NLRB could interpret the term "employee" in the National Labor Relations Act to include an employee of a firm who was simultaneously being paid by a union to organize the firm. NLRB v. Town & Country Electric, Inc., 116 S.Ct. ----- (1995). Town & Country, a non-union electrical contractor, refused to interview a number of job applicants and fired one hire because they were union members. In an unfair labor action Town & Country defended on the ground that the persons were not "employees" within the meaning of the Act, because these persons were all to be paid by the union to attempt to organize the other workers of Town & Country. Town & Country argued that common-law concepts of agency precluded an employee from having two masters. The NLRB found that the common law did not preclude an employee from having two masters, and that the persons in question were "employees." The Eighth Circuit, contrary to two other circuits, sided with the employer. The Supreme Court noting that "the Board often possesses a degree of legal leeway when it interprets its governing statute...," and citing a string of cases, with a "see also" to Chevron v. NRDC, 467 U.S. 837 (1984), found that the Board correctly interpreted the Act, and nothing in the common law precluded an employee from having two employers, "if the service to one does not involve abandonment of the service to the other." Because there was nothing inconsistent with persons performing their jobs as electricians, even while trying to organize other workers, there was no basis in the common law from departing from the otherwise clear meaning of the Act.

The Supreme Court has granted certiorari in the case of Holly Farms Corp. v. NLRB, 48 F.3d 1360 (4th Cir. 1995) to decide whether chicken catchers employed by a vertically integrated poultry producer are "agricultural laborers" and hence excluded from protection under the National Labor Relations Act. Citing to the rule of NLRB v. Hearst, 322 U.S. 111 (1944), that the Board's determination of what constitutes an "employee" under the NLRA is to be accepted if it has warrant in the record and a reasonable basis in the law," the Fourth Circuit upheld the Board's finding that the workers were not agricultural laborers.

Holly Farms (actually now owned by Tyson Foods) is engaged in the production, processing, and transportation of poultry. At one of its plants Holly Farms hatches chicks, which are transferred to independent "contract growers," who are paid to raise the chicks into full-grown broiler chickens. When the birds are seven weeks old, Holly Farms dispatches "live-haul crews," consisting of a truck driver, a forklift operator, and a number of chicken catchers to manually catch and cage the chickens, load them on the truck, and deliver them to the company's processing plant. The NLRA defines "agriculture" in both a primary sense -- encompassing farming in all its branches, including the raising of poultry -- and a secondary sense -- including "any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." Both Holly Farms and the NLRB agreed that the actions of the live-haul crews were not agriculture in its primary sense, and they both agreed that the live-haul crews' actions would be agriculture in its secondary sense if they were performed on Holly Farms' own farms. The NLRB maintained that because the actions were not incidental to Holly Farms' farming operations, but to the farming operations of the independent contract growers, the live-haul crew members were "employees" rather than "agricultural laborers."

The Fourth Circuit deferred to the Board's interpretation, noting that it was consistently applied over time and had been approved by other appellate decisions (citing two Eighth Circuit decisions from 1979 and 1982). The court did note a contrary decision, Coleman v. Sanderson Farms, Inc., 629 F.2d 1077 (5th Cir. Unit A 1980).

The Lopez Watch

When the Supreme Court decided United States v. Lopez, 115 S. Ct. 1624 (1995), holding the Gun Free School Zones Act unconstitutional as beyond Congress's Commerce Clause powers, the one thing clear from the decision was that it would spawn substantial new litigation. In 1995 over 35 cases have been decided by the courts of appeals in cases raising Lopez claims. With one exception, however, all those claims were rejected. Challenges to the following laws were rejected: prohibition of distributing drugs within one thousand feet of a school (21 U.S.C. § 860(a) -- Fifth Circuit; federal carjacking statute (18 U.S.C. § 2119) -- Third, Eighth, Ninth, Tenth, and Eleventh Circuits; felon in possession of a firearm (18 U.S.C. § 922(g)) -- Fourth and Ninth Circuits; carrying a firearm during commission of a felony (18 U.S.C. § 924(c)(1)) -- Third and Tenth Circuits; Freedom of Access to Clinic Entrances Act (18 U.S.C. § 248) -- Eleventh Circuit; possession of a machine gun (18 U.S.C. § 922(o)) -- Fifth and Tenth Circuits; and the intrastate regulation of motor carriers -- Tenth Circuit; interference with interstate commerce in violation of the Hobbs Act (18 U.S.C. § 1951) -- Tenth Circuit. The one exception involves the federal arson statute, which makes it a crime to destroy by fire "any building, vehicle, or other real or personal property used in interstate or foreign commerce." Unlike the Gun Free School Zones Act, this law includes a required nexus to interstate commerce. As a result, at least two circuits have upheld its constitutionality as applied, see United States v. Martin, 63 F.3d 1422 (7th Cir.), and United States v. Sherlin, 1995 WL 609047 (6th Cir.). The Ninth Circuit, however, found it unconstitutional as applied to a private residence.

The Supreme Court seemed to close off one possible area of litigation when it denied certiorari in Cargill, Inc. v. United States (decided below sub nom. Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995), a case involving federal regulation of private wetlands used by migratory birds. The Ninth Circuit, pre-Lopez, had found the regulation within the Commerce Clause, consistent with a decision of Seventh Circuit in Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (1993). Justice Thomas dissented from the denial of certiorari, stating his belief that in light of Lopez the regulation of wetlands because of their use by migratory birds exceeded the Commerce Clause power of Congress.