National Broiler Marketing Ass'n v. United States

436 U.S. 816, 98 S. Ct. 2122, 56 L. Ed. 2d 728, 1978 U.S. LEXIS 104

Opinions

Mr. Justice Blackmun

delivered the opinion of the Court.

Once again,¹ this time in an antitrust context, the Court is confronted with an issue concerning integrated poultry operations. Petitioner phrases the issue substantially as follows:

Is a producer of broiler chickens precluded from qualifying as a “farmer,” within the meaning of the Capper-Volstead Act, when it employs an independent contractor to tend the chickens during the “grow-out” phase from chick to mature chicken? ²

The issue apparently is of importance to the broiler industry and in the administration of the antitrust laws.³

I

In April 1973, in the United States District Court for the Northern District of Georgia, the United States brought suit against petitioner National Broiler Marketing Association (NBMA). It alleged that NBMA had conspired with others not named, but including members of NBMA, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 (1976 ed.). It prayed for injunctive relief and that NBMA “be ordered to make whatever changes are necessary in its organization and operation to insure compliance with the judgment” of the court. Record 10. In its answer NBMA alleged, among other things, that its status, as a cooperative association of persons engaged in the production of agricultural products, sheltered it from antitrust liability for the acts alleged, under § 1 of the Capper-Volstead Act, also known as the Cooperative Marketing Associations Act, 42 Stat. 388, 7 U. S. C. §291 (1976 ed.).⁴

On motion and cross-motion for partial summary judgment, the District Court concluded that the involvement of all the members of NBMA in the production of broiler chickens was sufficient to justify their classification as “farmers,” within the meaning of the Act, and that NBMA therefore was a cooperative entitled to the limited exemption from the antitrust laws the Act afforded. 1975-2 Trade Cases ¶ 60,509.

On appeal,⁵ the United States Court of Appeals for the Fifth Circuit reversed. It held that all the NBMA members were not farmers in the ordinary, popular meaning of that word and as it was employed in. 1922 when the Capper-Volstead Act became law. 550 F. 2d 1380 (1977). Because of the importance of the issue for the agricultural community and for the administration of the antitrust laws, we granted certiorari. 434 U. S. 888 (1977).

II

NBMA is a nonprofit cooperative association organized in 1970 under Georgia law.⁶ It performs various cooperative marketing and purchasing functions on behalf of its members. App. 7.⁷ Its membership has varied somewhat during the course of this litigation, but apparently it has included as many as 75 separate entities. Id., at 172.

These members are all involved in the production and marketing of broiler chickens.⁸ Production involves a number of distinct stages: the placement, raising, and breeding of breeder flocks to produce eggs to be hatched as broiler chicks; the hatching of the eggs and placement of those chicks; the production of feed for the chicks; the raising of the broiler chicks for a period, not to exceed, apparently, 10 weeks; the catching, cooping, and hauling of the “grown-out” broiler chickens to processing facilities; and the operation of facilities to process and prepare the broilers for market. Id., at 7.

The broiler industry has become highly efficient and departmentalized in recent years,⁹ and stages of production that in the past might all have been performed by one enterprise may now be split and divided among several, each with a highly specialized function. No longer are eggs necessarily hatched where they are laid, and chicks are not necessarily raised where they are hatched. Conversely, some stages that in the past might have been performed by different persons or enterprises are now combined and controlled by a single entity. Also, the owner of a breeder flock may own a processing plant.

All the members of NBMA are “integrated,” that is, they are involved in more than one of these stages of production. Many, if not all, directly or indirectly own and operate a processing plant where the broilers are slaughtered and dressed for market. All contract with independent growers for the raising or grow-out of at least part, and usually a substantial part, of their flocks. Id., at 8. Often the chicks placed with an independent grower have been hatched in the member’s hatchery from eggs produced by the member’s breeder flocks. The member then places its chicks with the independent grower for the grow-out period, provides the grower with feed, veterinary service, and necessary supplies, and, with its own employees, usually collects the mature chickens from the grower. Generally, the member retains title to the birds while they are in the care of the independent grower. Ibid.

It is established, however, ibid.; Brief for Petitioner 5 n. 2, that six NBMA members do not own or control any breeder flock whose offspring are raised as broilers, and do not own or control any hatchery where the broiler chicks are hatched. And it appears from the record that three members do not own a breeder flock or hatchery, and also do not maintain any grow-out facility.¹⁰ These members, who buy chicks already hatched and then place them with growers, enter the production line only at its later processing stages.

Ill

The Capper-Yolstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market.¹¹ But if the cooperative includes among its members those not so privileged under the statute to act collectively, it is not entitled to the protection of the Act. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967). Thus, in order for NBMA to enjoy the limited exemption of the Capper-Volstead Act, and, as a consequence, to avoid liability under the antitrust laws for its collective activity, all its members must be qualified to act collectively. It is not enough that a typical member qualify, or even that most of NBMA’s members qualify. We therefore must determine not whether the typical integrated broiler producer is qualified under the Act but whether all the integrated producers who are members of NBMA are entitled to the Act’s protection.

The Act protects “[p'Jersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers” (emphasis added). A common-sense reading of this language¹² clearly leads one to conclude that not all persons engaged in the production of agricultural products are entitled to join together and to obtain and enjoy the Act’s benefits! The italicized phrase restricts and limits the broader preceding phrase “[pjersons engaged in the production of agricultural products . . . .”¹³

The purposes of the Act, as revealed by the legislative history, confirm the conclusion that not all those involved in bringing agricultural products to market may join cooperatives exempt under the statute, and have the cooperatives retain that exemption. The Act was passed in 1922 to remove the threat of antitrust restrictions on certain kinds of collective activity, including processing and handling, undertaken by certain persons engaged in agricultural production. Similar organizations of those engaged in farming, as well as organizations of laborers, were already entitled, since 1914, to special treatment under § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17 (1976 ed.).¹⁴ This treatment, however, had proved to be inadequate. Only nonstock organizations were exempt under the Clayton Act, but various agricultural groups had discovered that, in order best to serve the needs of their members, accumulation of capital was required. With capital, cooperative associations could develop and provide the handling and processing services that were needed before their members’ products could be sold. The Capper-Yolstead Act was passed to make it clear that the formation of an agricultural organization with capital would not result in a violation of the antitrust laws, and that the organization, without antitrust consequences, could perform certain functions in preparing produce for market. Mr. Justice Black summarized this legislative history in his opinion for a unanimous Court in Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 464-468 (1960), and it is further discussed in Case-Swayne, 389 U. S., at 391.¹⁵

Farmers were perceived to be in a particularly harsh economic position. They were subject to the vagaries of market conditions that plague agriculture generally, and they had no means individually of responding to those conditions. Often the farmer had little choice about who his buyer would be and when he would sell. A large portion of an entire year’s labor devoted to the production of a crop could be lost if the farmer were forced to bring his harvest to market at an unfavorable time. New farmers, however, so long as they could act only individually, had sufficient economic power to wait out an unfavorable situation. Farmers were seen as being caught in the hands of processors and distributors who, because of their position in the market and their relative economic strength, were able to take from the farmer a good share of whatever profits might be available from agricultural production.¹⁶ By allowing farmers to join together in cooperatives, Congress hoped to bolster their market strength and to improve their ability to weather adverse economic periods and to deal with processors and distributors.

NBMA argues that this history demonstrates that the Act was meant to protect all those that must bear the costs and risks of a fluctuating market,¹⁷ and that all its members, because they are exposed to those costs and risks and must make decisions affected thereby, are eligible to organize in exempt cooperative associations.¹⁸ The legislative history indicates, however, and does it clearly, that it is not simply exposure to those costs and risks, but the inability of the individual farmer to respond effectively, that led to the passage of the Act. The congressional debates demonstrate that the Act was meant to aid not the full spectrum of the agricultural sector but, instead, to aid only those whose economic position rendered them comparatively helpless. It was, very definitely, special-interest legislation. Indeed, several attempts were made to amend the Act to include certain processors who, according to preplanting contracts, paid growers amounts based on the market price of processed goods; these attempts were roundly rejected.¹⁹ Clearly, Congress did not intend to extend the benefits of the Act to the processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk.

Petitioner suggests that agriculture has changed since 1922, when the Act was passed, and that an adverse decision here “might simply accelerate an existing trend toward the absorption of the contract grower by the integrator,” or “might induce the integrators to rewrite their contracts with the contract growers to designate the latter as lessor-employees rather than independent contractors.” Brief for Petitioner 13; see id., at 24, 26, and Tr. of Oral Arg. 17. We may accept the proposition that agriculture has changed in the intervening 55 years, but, as the second Mr. Justice Harlan said, when speaking for the Court in another context, a statute “is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes.” United States v. Sisson, 399 U. S. 267, 297 (1970). Considerations of this kind are for the Congress, not the courts.

IV

We, therefore, conclude that any member of NBMA that owns neither a breeder flock nor a hatchery, and that maintains no grow-out facility at which the flocks to which it holds title are raised, is not among those Congress intended to protect by the Capper-Volstead Act. The economic role of such a member in the production of broiler chickens is indistinguishable from that of the processor that enters into a preplanting contract with its supplier, or from that of a packer that assists its supplier in the financing of his crops.²⁰ Their participation involves only the kind of investment that Congress clearly did not intend to protect.²¹ We hold that such members are not “farmers,” as that term is used in the Act, and that a cooperative organization that includes them — or even one of them — as members is not entitled to the limited protection of the Capper-Yolstead Act.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings.

It is so ordered.

1

See Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298 (1977).

2

The Court of Appeals described the issue in this manner:

“We must decide whether broiler industry companies that neither own nor operate farms can be 'farmers’ within the meaning of a 1922 federal statute called the Capper-Volstead Act, which gives farmers’ cooperatives some measure of protection from the antitrust laws” (footnote omitted). 550 F. 2d 1380, 1381 (CA5 1977).

3

Nineteen States have filed a brief amicus curiae and assert interests as antitrust litigants. See In re Chicken Antitrust Litigation, M. D. L. No. 237, ND Ga. No. C74r-2454A. See also Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29 (1978); Department of Agriculture, Farmer Cooperative Service, Legal Phases of Farmer Cooperatives (1976); Note, Trust Busting Down on the Farm: Narrowing the Scope of Antitrust Exemptions for Agricultural Cooperatives, 61 Va. L. Rev. 341 (1975).

4

Section 1 of the Capper-Yolstead Act provides in pertinent part:

“Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit .growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . . .

The statute further provides that any such association must be operated for the mutual benefit of its members; that it may not pay dividends of more than 8% annually on its stock or membership capital; and that it “shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.” Section 2 of the Act, 7 U. S. C. §292 (1976 ed.), provides for certain regulation of the association by the Secretary of Agriculture.

5

In order to facilitate the appeal, the United States, after the District Court’s decision, amended the complaint to limit its allegations of conspiracy to the members of NBMA. App. 94r-95. This was done without prejudice to any later renewal of allegations abandoned by the amendment. Id., at 91. Noting that the United States did not dispute that if NBMA were a qualified cooperative, the exemption afforded by the Capper-Volstead Act provided a complete defense to the amended complaint, and restating its conclusion that NBMA’s members were entitled to join in a cooperative under the Act, the District Court dismissed the amended complaint with prejudice. Id., at 105-108; 1976-1 Trade Cases ¶ 60,801.

6

Georgia Cooperative Marketing Act, Ga. Code § 65-201 et seq. (1975). The Act authorizes cooperative associations of “persons engaged in the production of . . . agricultural products.” § 65-205. When first organized, NBMA was chartered as a cooperative association with capital stock. In December 1973, after the complaint in this suit had been filed, its articles of incorporation were amended to authorize the cancellation of its capital stock and the conversion of the association to a nonprofit membership cooperative association not having stock. App. 6.

There is no suggestion by the parties that this change in organization in any way affects the issue presented in the case.

7

The record includes more specific but nevertheless limited references to NBMA’s activities. It has been involved in the purchasing of feed ingredients and of other specialized products used by its members in raising broilers and preparing them for market, in market research and planning, and in conducting a foreign trade sales program. Id., at 137-139. The full range of NBMA’s activities may well be put in issue on remand.

8

Broilers are chickens that a.re slaughtered at 7 to 9 (or 8 to 10) weeks of age and processed for sale to supermarkets, restaurants, hotels and other institutions. Id., at 8, 93, 98. The United States has conceded that, for the purposes of this litigation, a broiler chicken is an agricultural product. Id., at 7.

9

Compare, for example, Department of Agriculture, Agricultural Adjustment Administration, W. Termohlen, J. Kinghorne, & E. Warren, An Economic Survey of the Commercial Broiler Industry (1936), with V. Benson & T. Witzig, The Chicken Broiler Industry: Structure, Practices, and Costs (Dept, of Agriculture, Economic Rep. No. 381, 1977). See generally E. Roy, Contract Farming and Economic Integration, ch. 4, “Broiler Chickens” (2d ed. 1972); Department of Agriculture, Packers and Stockyards Administration, The Broiler Industry: An Economic Study of Structure, Practices and Problems (1967); Ohio Agricultural Research and Development Center, B. Marion & H. Arthur, Dynamic Factors in Vertical Commodity Systems: A Case Study of the Broiler System (1973).

10

See Table G-1, and the data as to Members 2, 3, and 20, attached to affidavit of I. R. Barnes, submitted by petitioner and accepted as to accuracy by the United States. Record 467; App. 187-188.

11

The Act does not remove from the general operation 'of the antitrust laws the deahngs of such cooperatives with others. United States v. Borden Co., 308 U. S. 188, 203-205 (1939).

12

See Malat v. Riddell, 383 U. S. 669, 571 (1966); Addison v. Holly Hill Fruit Products, Inc., 322 U. S. 607, 618 (1944).

13

The report on the bill that became the Act stressed that the limitations on “the kind of associations to which the legislation applies” were “aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers.” H. R. Rep. No. 24, 67th Cong., 1st Sess., 1 (1921). See also H. R. Rep. No. 939, 66th Cong., 2nd Sess., 1 (1920).

Senator Kellogg, a supporter of the bill, read this language to have a restrictive meaning:

“Mr. CUMMINS .... Are the words 'as farmers, planters, ranch-men, dairymen, nut or fruit growers’ used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?

“Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers’ would have covered them all.

“Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?

“Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added.

“Mr. TOWNSEND. They must be persons who produce these things.

“Mr. KELLOGG. Yes; that has always been the understanding.” 62 Cong. Rec. 2052 (1922).

14

Section 6 of the Clayton Act reads:

“The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”

15

See also, e. g., 59 Cong. Rec. 7851-7852 (1920) (remarks of Rep. Morgan.); id., at 8017 (remarks of Rep. Volstead). See generally Ballan-tine, Co-operative Marketing Associations, 8 Minn. L. Rev. 1 (1923) ; L. Hulbert, Legal Phases of Cooperative Associations 43-47 (Department of Agriculture Bull. No. 1106,1922).

The Court specifically has acknowledged the relationship of the exemption for labor unions and that for farm cooperatives:

“These large sections of the population — those who labored with their hands and those who worked the soil — were as a matter of economic fact in a different relation to the community from that occupied by industrial combinations. Farmers were widely scattered and inured to habits of individualism; their economic fate was in large measure dependent upon contingencies beyond their control.” Tigner v. Texas, 310 U. S. 141, 145 (1940).

See also Liberty Warehouse Co. v. Tobacco Growers, 276 U. S. 71, 92-93 (1928); Frost v. Corporation Comm’n, 278 U. S. 515, 538-543 (1929) (Brandéis, J., dissenting).

16

See, e. g., 59 Cong. Rec. 8025 (1920) (remarks of Rep. Hersman); id., at 9154 (extended remarks of Rep. Michener); 61 Cong. Rec. 1040 (1921) (remarks of Rep. Towner); 62 Cong. Rec. 2048-2049 (1922) (remarks of Sen. Kellogg); id., at 2058 (remarks of Sen. Capper).

17

Essentially the same argument was made and rejected by the Court in Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384, 393-396 (1967), in which it concluded that a cooperative of orange growers, which included some members who operated packing houses but grew no fruit, was not entitled to the protection of the Act.

18

NBMA asserts that the integrator bears 90%, or more, of broiler production costs, as compared with the grower’s 10%, or less. Tr. of Oral Arg. 13; Brief for Petitioner 16, 21.

19

This amendment, repeatedly introduced by Senator Phipps, would have inserted the following language after “nut or fruit growers” (see n. 4, supra):

“and where any such agricultural product or products must be submitted to a manufacturing process, in order to convert it or them into a finished commodity, and the price paid by the manufacturer to the producer thereof is controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products, then any such manufacturers.” 62 Cong. Ree. 2227,2273-2275, 2281 (1922).

20

The dissent suggests, post, at 849, that petitioner’s members “partake in substantially all of the risks of bringing a crop . . . from ohick to broiler.” Although it is true that petitioner’s members bear some of the risks associated with bringing each flock to market, they do not bear all the risks. Growers dealing with many of petitioner’s members, including M2, M3, and probably M20, receive no payment for their labor if a flock is lost due, in some cases, to the weather, and in other cases, to disease. See Table G-2, App. 195. And, perhaps more importantly, petitioner’s members do not bear all the risks associated with changes in demand over a longer period of time. Very few of petitioner’s members, not including M2 or M3, provide the growers with whom they deal anything more than “informal assurances” that the member will continue to place flocks with the grower and therefore that the grower will receive a return on the investment he has in his grow-out facilities. See Table G-7, App. 219.

21

Because we conclude that these members have not made the kind of investment that would entitle them to the protection of the Act, we need not consider whether, even if they had, they would be ineligible for the protection of the Act because their economic position is such that they are not helplessly exposed to the risks about which Congress was concerned. Thus we need not consider here the status under the Act of the fully integrated producer that not only maintains its own breeder flock, hatchery, and grow-out facility, but also runs its own processing plant. Neither'do we consider the status of the less fully integrated producer that, although maintaining a grow-out facility, also contracts with independent growers for a large portion of the broilers processed at its facility.

There is nothing in the record that would allow us to consider whether these integrators are “too small” to own their own breeder flocks, hatcheries, or grow-out facilities, or whether, because of the history of their economic development, they have concentrated only on the feed production and processing aspects of broiler production.