SECTION 784.13 DEFINITION OF CANNING UNDER SECTION 13(b)(4). (a) Section 13 (b) (4) provides an exemption from the overtime but not from the minimum. wage provisions of the act for "any employee employed in the canning of any kind of fish, shellfish, or other aquatic forms of animal or vegetable life, or any byproduct thereof." The enforcement policy set forth in section 784.5 (d) with reference to the performance of the operations specified in section 13(a) (5) of the act on frozen, smoked, salted, or cured fish is also applicable to canning under section 13(b)(4). (b) This section of the act was adopted in 1949. Unlike section 13 (a) (5) which specifies a number of exemption operations, section 13(b) (4) is concerned with only one; namely, "canning". The legislative history of this section explains the type of activities included in that term as follows: 26 Under the conference agreement "canning" means hermetically sealing and sterilizing or pasteurizing and has reference to a process involving the performance of such operations. It also means other operations performed in connection therewith such as necessary preparatory operations performed on the products before they are placed in bottles, cans, or other containers to be hermetically sealed, as well as the actual placing of the commodities in such containers. Also included are subsequent operations such as the labeling of the cans or other containers and the placing of the sealed containers in cases or boxes whether such subsequent operations are performed as part of an uninterrupted or interrupted process. It does not include the placing of such products or byproducts thereof in cans or other containers that are not hermetically sealed as such an operation is "processing" as distinguished from "canning" and comes within the complete exemption contained in section 13(a) (5). SECTION 784.14 "NECESSARY PREPA RATORY OPERATIONS". (a) All necessary preparatory work performed on the exempt aquatic products as an integral part of a single uninterrupted canning process is subject to section 13(b) (4) and not to section 13(a) (5).27 Such activities conducted as essential and integrated steps in the continuous and uninterrupted process of can House (Conference) Report No. 1453, 81st Cong., 1st sess. 95 Cong. Rec. 14878, 14932-33. Mitchell v. Myrtle Grove Packing Company, 350 U.S. 891; Tobin v. Blue Channel Corporation, 198 F. 2d 245 (C.A. 4). ning are clearly within the definition of "canning" as contemplated by Congress and cannot be viewed in isolation from the canning process as a whole. Exempt preparatory operations include the necessary weighing, cleaning, picking, peeling, shucking, cutting, heating, cooling, steaming, mixing, cooking, carrying, conveying, and transferring to the containers the exempt aquatic products. But the preparatory operations do not include operations specified in section 13 (a) (5) pertaining to the acquisition of the exempt products from nature. Therefore, if a canner employs fishermen or others to catch, take, harvest, cultivate or farm aquatic animal and vegetable life, section 13(a) (5) and not section 13 (b) (4) would apply to those particular operations. (b) The mere fact that operations preparatory to canning are physically separated from the main canning operations of hermetically sealing and sterilizing or pasteurizing would not be sufficient to remove them from the scope of section 13 (b) (4). If the operations of separate processors are integrated in producing canned seafood products, all employees of such processors who perform any part of the described continuous series of operations to accomplish this result would be "employed in the canning of" such products. Where preparatory operations such as the steaming or shucking of oysters are performed in an establishment owned, operated, or controlled by a canner of seafood as part of a process consisting of a continuous series of operations in which such products are hermetically sealed in containers and sterilized or pasteurized, all employees who perform any part of such series of operations on any portion of such aquatic products for canning purposes are within the scope of the term "canning". (c) Moreover, preliminary operations performed in a separately owned processing establishment which are directed toward the particular requirements of a cannery pursuant to some definite arrangement between the operators of the two establishments would generally appear to be integrated with the cannery operations within the meaning of the above principles, so that the employees engaged in the preliminary operations in the separate establishment would be employed in "canning" within the meaning of section 13(b) (4) of the act. Whether or not integration exists in a specific case of this general nature will depend, of course, upon all the relevant facts and circumstances in such case. (d) The cooling, icing, or refrigeration of the aquatic products in the course of canning does not constitute such a break or discontinuance of the process as to bring the preparatory operations within section 13 (a) (5) instead of section 13 (b) (4) if the purpose of the refrigeration is to prevent spoilage for a short period, such as over the weekend, or during the transfer or shipment of the prepared products, or directly prior to the opening of the canning season. On the other hand, the freezing of aquatic products to be stored for a protracted or indefinite period for future canning is too remote from the actual canning to be an integral part of that operation and therefore is not within section 13(b) (4) but within section 13(a) (5). SECTION 784.15 "HERMETICALLY SEALING AND STERILIZING OR PASTEURIZING". (a) As previously stated, under the conference agreement, "canning" means hermetically sealing and sterilizing or pasteurizing and a processing involving such operations would constitute canning within the meaning of section (13) (b) (4). (b) Where section 13(b) (4) and section 13(a) (5) operations are intermingled, the former and not the latter exemption applies.28 Thus, where preparatory operations are performed on fish or seafood, some of which are to be canned and some of which are for processing (other than canning), all the necessary preparatory operations are exempt under section 13(b) (4) until that point in the operations where the commodity is channeled to accomplish the separate objectives, namely, canning or processing. Thereafter, the canning operations would be exempt under section 13(b) (4) and the processing (other than canning) operations would be exempt under section 13(a) (5). For example, all the prepara 28 See section 784.2(c). tory activities in a roe canning plant such as any unloading of the fish, cutting off the heads and tails, cleaning and scaling leading up to and including the extraction of the roe would come within section 13(b) (4), whereas the subsequent boning and filleting of the fish would come within section 13 (a) (5), when none of the filleted fish is to be canned. SECTION 784.16 SUBSEQUENT OPER ATIONS. Canning, within the meaning of the exemption, includes operations performed after hermetic sealing of the cans or other containers, such as labeling of them and placing of them in cases or boxes, which are required to place the canned product in the form in which it will be sold or shipped by the canner. This is so whether or not such operations immediately follow the actual canning operations as a part of an uninterrupted process. Storing and shipping operations performed by the employees of the cannery in connection with its canned products, during weeks in which canning operations are going on, come within the exemption. The fact that such activities relate in part to products processed during previous weeks or seasons would not affect the application of the exemption, provided canning operations such as hermetic sealing and sterilizing, or labeling, are currently being carried on. SECTION 784.17 EXEMPT AND NONEXEMPT EMPLOYEES. (a) Since canning is the only operation named in section 13(b) (4), only those employees whose activities are an integral part of that operation are within the exemption. Thus, employees engaged in placing the fish or seafood into the cans, or operating the machinery that seals the cans or the equipment that sterilizes the canned product are engaged in exempt activities. In addition, can loft workers, those engaged in removing and carrying supplies from the stock room for current use in canning operations, and employees whose duty it is to reform cans, when canning operations are going on, for current use and not for the purpose of producing a reserve supply of cans which may be used at a relatively remote time are engaged in exempt activities. Similarly, the repairing, oiling, or greasing during the active season of canning machinery or equipment currently used in the actual canning operations are exempt activities. The making of repairs in the production room such as to the floor around the canning machinery or equipment would also be deemed exempt activities where the repairs are essential to the continued canning operations or to prevent interruptions in the canning operations. (b) Or the other hand, office employees who make up and maintain employment, social security, payroll, and other records such as bills of lading, packing tickets, time cards, and books and ledgers, bus drivers who transport workers to and from the cannery,29 cooks, kitchen help and waiters who prepare and serve food to the cannery employees, nurses, laboratory workers developing new products, watchmen and general maintenance employees are not considered as being engaged in exempt 20 Mitchell v. Stinson, 217 F. 2d 210 (C.A. 1). work. The receiving, unloading, and storing of supplies such as salt, condiments, cleaning supplies, containers, etc., in the plant or warehouse for subsequent use in the canning operations would not be within the exemption. The delivery of these articles from stock to meet the daily needs of the canning operations would, however, be exempt work. (c) It may be that employees are engaged in the same workweek in performing exempt and nonexempt work. For example, a shop machinist engaged in making a new part to be used in the repair of a machine currently used in canning operations would be doing exempt work. If he also in the same week makes parts to be stocked for use in case of future breakdowns, this work, since it does not directly contribute to continuous operations, would be nonexempt work causing the loss of the exemption if such work occupied a substantial amount (for enforcement purposes, more than 20 percent) of the employee's worktime in that week.30 ao See section 784.2 for more detailed discussion. PRINTED FEBRUARY 1959 U. S. GOVERNMENT PRINTING OFFICE: 1959 O-499039 |