takes place during the active season and, there- INGREDIENTS TO THE AQUATIC (a) By their terms, sections 13(a) (5) and 13(b) (4) provide no exemption with respect to operations performed on any products other than the aquatic products named in these subsections. Accordingly, neither of the exemptions is applicable to the making of any commodities from ingredients only part of which consist of such aquatic products, if a substantial amount of other products is contained in the commodity so produced.15 Thus, the canning or processing of codfish cakes, clam chowder, dog food, crabcakes, or livestock feed containing aquatic products is often not exempt within the meaning of either section 13(a)(5) or section 13(b) (4). (b) To exempt employees employed in processing or canning products composed of the named commodities and a substantial amount of ingredients not named in the exemptions would be contrary to the language and purposes of such exemptions which specifically enumerate the commodities on which exempt operations were intended to be performed. Consequently, all operations performed on the mixed products at and from the time of the addition of the foreign ingredients, including those activities which are an integral part of processing or canning, would be nonexempt activities. However, activities performed in connection with the processing (other than canning) of the named aquatic products prior to the addition of the foreign ingredients would be deemed exempt processing under section 13(a)(5). Where the commodity produced contains an insubstantial amount of products not named in the exemption, the handling and preparation of the foreign ingredients for use in the exempt operations would also be considered as exempt activities. 14 Farmers' Irrigation Co. v. McComb, 337 U.S. 755; Mitchell v. Stinson, 217 F. 2d 210 (C.A. 1); Bowie v. Gonzalez, 117 F. 2d 11 (C.A. 1); Weaver v. Pittsburgh Steamship Co., 153 F. 2d 597 (C.A. 6), cert. den. 328 U.S. 858. 15 Cf. Walling v. Bridgemann-Russell Co., 6 Labor Cases (CCH) par. 61,422, 2 WH Cases 785 (D. Minn.); Miller v. Litchfield Creamery Co., 11 Labor Cases (CCH) par. 63,247, 5 WH Cases 1039 (N.D. Ind.). (c) As an enforcement policy in applying the principles stated in this section, if more than 20 percent of a commodity consists of products other than aquatic products named in section 13(a) (5) or 13(b) (4), the commodity will be deemed to contain a substantial amount of such nonaquatic products. SECTION 784.5 GENERAL CHARACTER OF THE SECTION 13(a) (5) EXEMPTION. (a) As indicated by the legislative history, the purpose of the exemption is to except from the minimum wage and overtime provisions of the act those activities in the fishing industry that are controlled or materially affected by natural factors or elements, such as the vicissitudes of the weather, the changeable conditions of the water, the run of the catch, and the perishability of the products obtained.16 (b) The activities enumerated in section 13(a) (5) fall into two general groups. The first group, which embraces "the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds or other aquatic forms of animal and vegetable life, including the going to and returning from work," includes those "offshore" or "trip" activities which have to do with the procurement or appropriation from nature of seafood and other forms of aquatic life, and which depend to a considerable degree on natural factors. The activities described in the latter part of the exemption, embracing “the loading, unloading, or packing of such products for shipment or *** ** propagating, processing (other than canning), marketing, freezing, curing, storing or distributing the above products or byproducts thereof," are "shore" activities which in general have to do with the movement of the perishable products to a nonperishable state or to points of consumption. This latter part of the exemption may be considered as intended to implement and supplement the first part by exempting "shore" activities which are necessarily somewhat affected by the same natural factors as the "offshore" or "trip" activities mentioned in the first part of the subsection. These "shore" activities are affected primarily, 16 83 Cong. Rec. 7408, 7443; Fleming v. Hawkeye Pearl Button Co., 113 F. 2d 52 (C.A. 8); Walling v. W.D. Haden. 153 F. 2d (C.A. 5), cert. den. 328 U.S. 866. however, by fluctuations in the supply of the product or by the necessity for consumption or preservation of such products before spoilage occurs. (c) Activities performed after the conversion of an aquatic product to a nonperishable state cannot form the basis for application of the exemption unless the subsequent operation is an integral part of exempt operations on the aquatic forms of animal and vegetable life mentioned in section 13(a)(5). The exemption is, consequently, not available for the handling or shipping of nonperishable products by an employer who did not commence operations on the product in a perishable state. Thus, employees of dealers in or distributors of such nonperishable products as fish oil and fish meal, or canned seafood, are not within the exemption. Similarly, there is no basis for application of the exemption to employees employed in further processing or manufacturing operations on products previously rendered nonperishable, such as refining fish oil or handling fish meal in connection with the manufacture of feeds. (d) In applying the principle stated in paragraph (c) of this section, the Divisions have not asserted that the exemption is inapplicable to the performance of the operations described in section 13 (a) (5) on frozen, smoked, salted, or cured fish. They will continue to follow this rule until further clarification from the courts. (e) As has been noted previously, employees may at times engage in activities which would bring them within the exemption provided by section 13(a) (5) and at other times may engage in activities which would be nonexempt. When this occurs, the principles stated in section 784.2(b) will determine the applicability of the exemption in specific workweeks. SECTION 784.6 GENERAL SCOPE OF SECTION 13(a)(5) EXEMPTION. (a) Despite its comprehensive reach, the legislative history and the court decisions make it clear that the exemption does not extend to every operation performed in the fishing industry. The scope of the named operations or activities. is conditioned by the unpredictable natural factors in the industry, the perishability of the aquatic products, and the time when the opera tions are performed. While an employee may in a sense perform the identical work for the same purpose in two given situations, in one case a relationship may exist to cause the work to be exempt, while in the other case such relationship may be absent, causing work to be nonexempt. For example, the time at which the particular work is performed may in some cases determine whether the work is exempt, such as when certain kinds of work are done during the inactive season as compared to the active season. (b) The exemption does not apply where the work is not sufficiently closely related to a named operation to be a part of the operation. Clearly, the actual performance of the operations enumerated in the exemption, such as the catching of fish, and the freezing of fish, are within the exemption. Whether other operations or activities are within the exemption depends on their relationship to the enumerated activities. (c) Only those operations that are an integral part of an enumerated operation are considered sufficiently closely related to the named operation to be a part of it. Generally, the usual duties performed in connection with a named operation are an integral part of the operation. For example, the spreading of ice on fresh fish packed for shipment is part of the packing of fish. Similarly, work which contributes directly to the continuous operation of fishing boats or processing equipment or other exempt activity bears the necessary relationship. On the other hand, such work as making ice for use in packing fish cannot be said to be a part of the packing operations so as to be exempt." The exemption does not extend to the manufacture of products for use in the exempt operations, such as boxes for shipment of fish or rubber boots for fishermen. SECTION 784.7 OFFICE, CLERICAL, AND MAINTENANCE EMPLOYEES. (a) Unless office, clerical, and maintenance employees are engaged in activities which are an integral part of the named operations, they are nonexempt. For example, office and clerical employees of a firm which is engaged in operating fishing boats or selling fish are not 17 See footnote 10 and cases there cited. within section 13 (a) (5) except when they perform marketing or distributing activities such as selling, taking and putting up orders, recording sales, taking cash, and making telephone connections for customer or dealer calls. Whether a clerical employee working in a processing plant is exempt likewise depends on the relationship of his activities to the named operations. The work of a talleyman counting fish as they are unloaded at the plant is within the exemption as an integral part of the unloading operation. Bookkeepers, stenographers, typists, file clerks, and others who perform general office work such as posting to ledgers, sending bills, and making up payrolls are not within. the section 13 (a) (5) exemption. (b) Similarly, such employees as kitchen and restaurant workers who prepare and serve food to the employees engaged in exempt processing operations, laboratory workers who perform research in fishery products, and bus drivers transporting workers to and from the plant are not within the exemption.18 (c) The repair and maintenance of the processing plant, whether performed during the "active" or "dead" season, are generally not within section 13 (a) (5) because such activities are not sufficiently closely related to the named operations. It follows that employees such as carpenters, repairmen, and janitors engaged in general maintenance work, and watchmen are not exempt. However, if the repairman or other employee is engaged in repairing, oiling or greasing machinery or equipment which is currently used in the actual processing operations or in making repairs in the production room, such as to the floor or around the processing equipment or machinery, which repair is essential to prevent interruption to the processing operation, the exemption would apply. Employees who clean the processing machinery or equipment in order to prevent interruptions or breakdowns are also so closely related to the processing as to be part of it. Similarly, the providing of heat which is used for the exempt processing is an exempt activity. (d) Certain warehousing activities are ordinarily performed in connection with the processing operations. Articles such as salt, condi 18 See Mitchell v. Stinson, 217 F. 2d 210 (C.A. 1), so holding an analogous situation under section 13(b)(4). ments, cleaning supplies, and boxes or other containers, are received and stored in the warehouse for use in connection with the processing operations. The unloading and storing of these ingredients and supplies in the plant or warehouse for subsequent use in the processing operation would not be exempt operations. On the other hand, the delivery of these ingredients or supplies from stock to meet the daily needs of the processing department would be exempt work. For example, assembling boxes to be currently used in packing fish would be exempt, whereas the receiving, unloading and storing of the knocked-down or already formed boxes, or the assembling of boxes for stock to be used at some relatively remote future time, would not be exempt work. SECTION 784.8 OFFSHORE ACTIVITIES. (a) In general. (1) The expression "offshore activities" is used to describe the category of named operations pertaining to the acquisition from nature of aquatic forms of animal and vegetable life. The "catching, taking, harvesting, cultivating, or farming" of the various forms of aquatic life includes not only the actual performance of the activities, but also the usual duties inherent in the occupations of those who perform the activities. Thus, the fisherman who is engaged in "catching" and "taking" must see to it that his lines, nets, seines, traps, and other equipment are not fouled and are in working order. He may also have to mend or replace his lines or nets or repair or construct his traps. Such activities are an integral part of the operations of "catching" and "taking" fish and are exempt. (2) The replacement, repair, mending, or construction of the fisherman's equipment performed at the place of the fishing operation would be exempt. Such activities performed in contemplation of the trip are also within the exemption if the work is closely related both in point of time and causation to the acquisition of the aquatic life. For example, the repair of the nets, or of the vessel, or the building of fish trap frames on the shore immediately prior to the opening of the fishing season would be within the exemption. It is immaterial if such work is performed by the fisherman himself or by some other employee of the fishing organization. However, the exemption would not apply to employees of a manufacturer of supplies nor to employees of independent shops which repair boats and equipment.19 (b) Going to and returning from work. The phrase "including the going to and returning from work" relates to the preceding named operations which pertain to the procuring and appropriation of seafood and other forms of aquatic life from nature. The expression obviously includes the time spent by fishermen and others who go to and from the fishing grounds or other locations where the aquatic life is reduced to possession. In performing such travel the fishermen may be required to row, guide or sail the boat or otherwise assist in its operation. Similarly, if an employee were digging for clams or other shellfish or gathering seaweed on the sand or rocks it might be necessary to drive a truck or other vehicle to reach his destination. Such activities are exempt within the meaning of this language. However, the phrase does not apply to employees who are not engaged in the acquisition of aquatic animal or vegetable life such as those going to or returning from work at processing or refrigerator plants, or wholesale establishments. (c) Trip employees who may be exempt under section 13(a) (14). Section 13 (a) (14) provides an exemption from the minimum wage and overtime provisions of the act for "any employee employed as a seaman". This exemption applies to employees working aboard vessels whose services are rendered primarily as an aid in the operation of the vessel as a means of transportation. Typically, the exemption extends to members of the crew such as deckhands, sailors, engineers, repairmen, radio operators, firemen, pursers, surgeons, cooks, and stewards. For a further explanation of the seaman's exemption see part 783 of this chapter issued by the Department of Labor.20 19 Dize v. Maddrix, 144 F. 2d 584 (C.A. 4), affirmed 324 U.S. 697. 20 29 CFR part 783. SECTION 784.9 SHORE ACTIVITIES The phrase "loading, unloading, or packing of such products for shipment" applies to activities connected with the removal of aquatic products from the fishing vessels and their initial movement to markets or processing plants. Included are such activities as unloading the aquatic products from the vessels, placing the products on conveyors for movement into a processing plant or placing them into boxes, and loading the products on trucks or other transportation facilities for shipment. SECTION 784.10 PROCESSING (OTHER THAN CANNING), FREEZING, AND CURING. (a) Processing (other than canning), freezing and curing embrace a variey of operations that change the form of the "aquatic forms of animal and vegetable life." They include such operations as filleting, cutting, scaling, salting, smoking, drying, pickling, curing, freezing, extracting oil, manufacturing meal or fertilizer, drying seaweed preparatory to the manufacture of agar, drying and cleaning sponges.21 (b) Such operations as transporting aquatic products to the processing plant; moving the products from place to place in the plant; cutting, trimming, eviscerating, peeling, shelling and otherwise working on the product; packing the product; and moving the products from the production line to storage or to the shipping platform are typical of the operations included in the exemption. Removal of waste, such as clam and oyster shells, and operation of processing and packing machinery are also included. As for the application of the exemption to office, maintenance, warehouse and other employees, see the discussion in section 784.7. (c) As previously indicated in section 784.5, after the character of the aquatic products as taken from nature has been altered by the performance of the enumerated operations so as to 21 Fleming v. Hawkeye Pearl Button Co., 113 F. 2d 52 (C.A. 8). render them nonperishable, e.g., drying and cleaning sponges, section 13(a) (5) provides no exemption for any subsequent operations on the preserved products, unless the subsequent operation is an integral part of the exempt operations. The subsequent storing, marketing, or distributing of such preserved products (including products processed during previous weeks or seasons) by the employer who performed the exempt operations on them will be considered an integral part of those exempt operations in those weeks in which he is actively engaged in processing, freezing or curing. (d) If, on the other hand, the aquatic products, though subjected to a processing operation, are still in a perishable state, the subsequent performance of any of the enumerated operations on the still perishable products will be within the exemption no matter who the employer performing the exempt operations may be. He may be the same employer who performed the prior processing or other exempt operations, another processor, or a wholesaler, as the case may be. (e) The same would be true where the specified operations are performed on perishable byproducts. For example, fish-reduction operations performed on the inedible and still perishable portions of fish resulting from processing or canning operations, to produce fish oil or meal, would come within the exemption.2 Subsequent operations on the oil to fortify it would not be exempt, however, since fish oil is nonperishable in the sense that it may be held for a substantial period of time without deterioration. 22 SECTION 784.11 FISH AND SEAFOOD WHOLESALING. (a) Section 13 (a) (5) provides exemption for employment in "marketing *** storing, or distributing" the named aquatic products or byproducts. As applied to the wholesaling of fish and seafood, this provision affords exemption to such activities as unloading the aquatic product at the establishment, icing or refrigerating Any operation performed on such fish scraps, an unseg regated portion of which is to be canned, would come within section 13 (b) (4) and not section 13(a) (5). the product and storing it, placing the product into boxes, and loading the boxes on trucks or other transportation facilities for shipment to retailers or other receivers. Transportation to and from the establishment is also included." Office and clerical employees of a wholesaler who perform general office work such as posting to ledgers, sending bills and statements, preparing tax returns, and making up payrolls are not exempt. Such activities as selling, taking and putting up orders, recording sales, and taking cash are, however, within the exemption. See section 784.7 (a) in this connection. (b) Employees of a wholesaler engaged in the performance of any of the enumerated operations on fresh fish or fish products will be engaged in exempt work. However, any such operations which they perform on aquatic products which have been canned or otherwise rendered nonperishable are nonexempt in accordance with the principles stated in section 784.5. SECTION 784.12 PROCESSING OR MANUFACTURING OPERATIONS WHICH ARE NOT WITHIN THE EXEMPTION. (a) Since the subject matter of the exemption is concerned with "aquatic forms of animal and vegetable life", the courts have held that the manufacture of buttons from clam shells or the dredging of shells to be made into lime and cement are not within the scope of the exemption because the shells are not living things.24 Similarly, the production of such items as crushed shell and grit, shell lime, pearl buttons, knife handles, novelties, liquid glue, isinglass, pearl essence and fortified or refined fish oil is not within section 13 (a) (5) exemption. (b) In addition, the exemption would not be applicable to the manufacture of boxes, barrels, or ice by a seafood processor for packing or shipping its seafood products or for use of the ice in its fishing vessels. These operations, when performed by an independent manufacturer, would likewise not be exempt.25 23 Johnson v. Johnson and Company, Inc., 47 F. Supp. 650 (N.D. Ga.). 24 Fleming v. Hawkeye Pearl Button Co.. 113 F. 2d 52 (C.A. 8); Walling v. W. D. Haden, 153 F. 2d 196 (C.A. 5). 26 Dize v. Madďrix, 144 F. 2d 584 (C.A. 4), affirmed 324 U.S. 697. |