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the other farms and vines his own peas exclusively. the crop at all times, and confer on him the right However, the work of vining station employees in to supervise the growing operations, where the weeks in which the stations vine only peas grown facts as a whole show that the contract purchaser by a canner on farms owned or leased by him is provides a farm market, cash advances, and advice considered part of the canning operations. As and counsel but does not really perform growing such, the cannery operations, including the vining operations (Mitchell v. Huntsville Nursuries, 267 operations, are exempt only if the canner cans crops

F.2d 286). which he grows himself and if the canning operations are subordinate to the farming operations.

“Such FARMING OPERATIONS”—ON THE FARM Section 780.149 Place of performing the prac

Section 780.150 Practices must relate to farmtice as a factor.

ing operations on the particular farm. So long as the farming operations to which a “Practices * * * performed * * *

on a farm” farmer's practice pertains are performed by him must be performed as an incident to or in conjuncin his capacity as a farmer, the exempt status of tion with "such farming operations” in order to the practice is not necessarily altered by the fact constitute "agriculture” within the secondary that the farming operations take place on more

meaning of the term. No practice performed with than one farm or by the fact that some of the

respect to farm commodities is within the lanoperations are performed off his farm (NLRB v.

guage under discussion by reason of its performOlaa Sugar Co., 242 F. 2d 714). Thus, where the

ance on a farm unless all of such commodities are practice is performed with respect to products of the products of that farm. Thus, the performance farming operations, the controlling consideration

on a farm of any practice, such as packing or storis whether the products were produced by the ing, which may be incidental to farming operafarming operations of the farmer who performs

tions cannot constitute a basis for exempting the practice rather than at what place or on whose

employees engaged in such practice if the practice land he produced them. Ordinarily, a practice

is performed upon any commodities that have performed by a farmer in connection with farming

been produced elsewhere than on such farm (see operations conducted on land which he owns or

Mitchell v. Hunt, 263 F. 2d 913). The construcleases will be considered as performed in connec

tion by an independent contractor of a granary tion with the farming operations of such farmer in

a farm is not connected with "such” farming opthe absence of facts indicating that the farming erations if the farmer for whom it is built intends operations are actually those of someone else.

to use the structure for storing grain produced on Conversely, a contrary conclusion will ordinarily

other farms. Nor is the requirement met with be justified if such farmer is not the owner or a

respect to employees engaged in any other pracbona fide lessee of such land during the period

tices performed on a farm, but not by a farmer, in when the farming operations take place. The

connection with farming operations that are not question of whose farming operations are actually

conducted on that particular farm. The fact that being conducted in cases where they are performed

such a practice pertains to farming operations genpursuant to an agreement or arrangement, not

erally or to those performed on a number of farms, amounting to a bona fide lease, between the farmer

rather than to those performed on the same farm who performs the practice and the land-owner

only, is sufficient to take it outside the scope of the necessarily involves a careful scrutiny of the facts

statutory language. Area soil surveys and genetics and circumstances surrounding the arrangement.

research activities, results of which are made availWhere commodities are grown on the farm of the

able to a number of farmers, are typical of the actual grower under contract with another, prac

practices to which this principle applies and which tices performed by the latter on the commodities,

are not exempt under this provision. off the farm where they were grown, relate to

Section 780.151 Practices on a farm not refarming operations of the grower rather than to

lated to farming operations. any farming operations of the contract purchaser. This is true even though the contract purports to Practices performed on a farm in connection lease the land to the latter, give him the title to with nonfarming operations performed on or off

on

bility with respect to the product, is highly significant.

such farm do not meet the requirement stated in section 780.150. For example, if a farmer operates a gravel pit on his farm, none of the practices performed in connection with the operation of such gravel pit would be exempt. Whether or not some practices are performed in connection with farming operations conducted on the farm where they are performed must be determined with reference to the purpose of the farmer for whom the practice is performed. Thus, land clearing operations may or may not be connected with such farming operations depending on whether on not the farmer intends to devote the cleared land to farm use. Section 780.152 Practices on a farm not per

formed for the farmer. The fact that a practice performed on a farm is not performed by or for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted. Thus, where such an employer other than the farmer performs certain work on a farm solely for himself in furtherance of his own enterprise, the practice cannot ordinarily be regarded as performed in connection with farming operations conducted on the farm. For example, it is clear that the work of employees of a utility company in trimming and cutting trees for power and communications lines is part of a non-farming enterprise outside the exemption. When a packer of vegetables or dehydrator of alfalfa buys the standing crop from the farmer, harvests it with his own crew of employees, and transports the harvested crop to his off-the-farm packing or dehydrating plant, the transporting and plant employees, who are not engaged in "primary" agriculture as are the harvesting employees (see NLRB v. Olaa Sugar Co., 242 F. 2d 714), are clearly not exempt. Such an employer cannot automatically gain the exemption for the plant employees by merely transferring the operations to the farm so as to meet the "on a farm" requirement. They will continue outside the exemption if the packing or dehydrating is not in reality done for the farmer. The question of for whom the practices are performed is one of fact. In determining the question, however, the fact that prior to the performance of the packing or dehydrating operations, the farmer has relinquished title and divested himself of further responsi

PERFORMANCE OF THE PRACTICES “AS AN INCIDENT

TO OR IN CONJUNCTION WITH” THE FARMING

OPERATIONS Section 780.153 "As an incident to or in con

junction with” the farming operations. In order for practices other than actual farming operations to constitute "agriculture” within the meaning of section 3(f) of the Act, it is not enough that they be performed by a farmer or on a farm in connection with the farming operations conducted by such farmer or on such farm, as explained in sections 780.138–780.152. They must also be performed "as an incident to or in conjunction with” these farming operations. The line between practices that are and those that are not performed “as an incident to or in conjunction with” such farming operations is not susceptible of precise definition. Generally, a practice performed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business. Industrial operations (Holtville Alfalfa Mills v. Wyatt, 230 F. 2d 398) and processes that are more akin to manufacturing than to agriculture (Maneja v. Waialua, 349 U.S. 254; Mitchell v. Budd, 350 U.S. 473) are not included. This is also true when on-the-farm practices are performed for a farmer. As to when practices may be regarded as performed for a farmer, see section 780.152.

Section 780.154 The relationship is determined

by consideration of all relevant factors. The character of a practice as a part of the agricultural activity or as a distinct business activity must be determined by examination and evaluation of all the relevant facts and circumstances in the light of the pertinent language and intent of the Act. The result will not depend on any mechanical application of isolated factors or tests. Rather, the total situation will control (Maneja v. Waialua, 319 U.S. 254; Mitchell v. Budd, 350 U.S. 473). Due weight should be given to any available criteria which may indicate whether performance of such a practice may prop

erly be considered an incident to farming within minimum wages and overtime is provided (see the intent of the Act. Thus, any mention or lack Bowie v. Gonzales, 117 F.2d 11). The Supreme of mention of the particular practice in related Court has considered the treatment of the practice provisions of the Act (see section 780.155), the under section 13(a) (10) of the Act especially siggeneral relationship, if any, of the practice to nificant as an indication of the intent to include farming as evidenced by common understanding, or exclude it under the exemption for agriculture. competitive factors, and the prevalence of its per The section 13(a) (10) exemption for specified formance by farmers (see section 780.156), and operations performed within the "area of producsimilar pertinent matters should be considered. tion" on agricultural or horticultural commodities Other factors to be considered in determining for market was intended, as shown by the legislawhether a practice may be properly regarded as in tive history cited by the Court, to equalize the cost cidental to or in conjunction with the farming op position of the small farmer who does not have erations of a particular farmer or farm include his own facilities to prepare the crop for market the size of the operations and respective sums in with that of the large farmer who does have such vested in land, buildings and equipment for the facilities, by providing a minimum wage and overregular farming operations and in plant and time exemption for independent operators of such equipment for performance of the practice, the facilities who provide these services for the small amount of the payroll for each type of work, the farmers' crops. Accordingly, in the Court's view, number of employees and the amount of time they the omission of a particular practice from those spend in each of the activities, the extent to which

listed in section 13(a) (10) indicates that it is not the practice is performed by ordinary farm em

within the intended scope of the exemption for ployees and the amount of interchange of employ agriculture, especially if the practice is expressly ees between the operations, the amount of revenue

mentioned in a narrower exemption. Thus, with derived from each activity, the degree of indus respect to the processing of sugar cane, the Court trialization involved, and the degree of separation said in Maneja v. Waialua, 349 U.S. 254: “Conestablished between the activities. With respect to gress would not have omitted sugar milling from practices performed on farm products (see section

the 'area of production' exemption if it had not 780.157) and in the consideration of any specific

concluded that it also fell outside the agricultural practices (see sections 780.158–780.183), there may exemption.” be special factors in addition to those above men

Section 780.156 Importance of relationship of tioned which may aid in the determination.

the practice to farming generally. Section 780.155 Importance of related exemp

As pointed out previously in section 780.105, the tions.

exemption provided by sections 3 (f) and 13(a) (6) Asindicated in section 780.9 of Subpart A of this

was meant to apply only to agriculture. The incluPart 780, the exemptions in the Act which relate

sion of incidental practices in the definition of to agriculture and its products should be construed

agriculture was not intended to exempt typical together to form a consistent whole. In determin

factory workers or industrial operations, and the ing whether a given practice should be considered

sponsors of the exemption made it clear that the to be performed as an incident to or in conjunction erection and operation on a farm by a farmer with farming operations within the secondary of a factory, even one using raw materials meaning intended to be given to "agriculture” which he grows, "would not make the manufacturunder the definition in section 3(f) of the Act, it

ing a farming operation” (see 81 Cong. Rec. is important to consider any mention or omis 7658; Maneja v. Waialua, 349 U.S. 254). Accordsion of the practice in the related exemption ingly, in determining whether a given practice is provisions of the Act.

For example, a prac performed “as an incident to or in conjunction tice for which an exemption from the over with” farming operations under the intended time provisions only is specifically provided in meaning of section 3(f), the nature of the pracanother section of the Act would not appear to be tice and the circumstances under which it is perone which Congress intended to include in "agri formed must be considered in the light of the culture” for which a complete exemption from common understanding of what is agricultural and

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also be given to the value added to the product as a result of the practice and whether a sales organization is maintained for the disposal of the product. Seasonality of the operations involved in the practice would not be very helpful as a test to distinguish between operations incident to agriculture and operations of commercial or industrial processors who handle a similar volume of the same seasonal crop. But the length of the period during which the practice is performed might cast some light on whether the operations are conducted as a part of agriculture or as a separate undertaking when considered together with the amount of investment, payroll, and other factors. In some cases, the fact that products resulting from the practice are sold under the producer's own label rather than under that of the purchaser may furnish an indication that the practice is conducted as a separate business activity rather than as a part of agriculture.

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what is not, of the facts indicating whether performance of the practice is in competition with agricultural or with industrial operations, and of the extent to which such a practice is ordinarily performed by farmers incidentally to their farming operations (see Bowie v. Gonzalez, 117 F. 2d 11; Calaf v. Gonzalez, 127 F.2d 934; Vives v. Serralles, 145 F. 2d 552; Mitchell v. Hunt, 263 F. 2d 913; Holtville Alfalfa Mills v. Wyatt, 230 F. 2d 398; Mitchell v. Budd, 350 U.S. 473; Maneja v. Waialua, supra). Such an inquiry would appear to have a direct bearing on whether a practice is an "established" part of agriculture. The fact that farmers raising a commodity on which a given practice is performed do not ordinarily perform such a practice has been considered a significant indication that the practice is not "agriculture" within the secondary meaning of section 3(f) (Mitchell v. Budd, supra; Maneja v. Waialua, supra). The test to be applied is not the proportion of those performing the practice who produce the commodities on which it is performed but the proportion of those producing such commodities who perform the practice (Maneja v. Waialua, supra). In Mitchell v. Budd, supra, the United States Supreme Court found that the following two factors tipped the scales so as to take the employees of tobacco bulking plants outside the scope of the agriculture exemption: Tobacco farmers do not ordinarily perform the bulking operation; and, the bulking operation is a process which changes tobacco leaf in many ways and turns it into an industrial product. Section 780.157 Practices performed on farm

products-special factors considered. In determining whether a practice performed on agricultural or horticultural commodities is incident to or in conjunction with the farming operations of a farmer or a farm, it is also necessary to consider the type of product resulting from the practice—as whether the raw or natural state of the commodity has been changed. Such a change may be a strong indication that the practice is not within the exemption (Mitchell v. Budd, 350 U.S. 473) ; the view was expressed in the legislative debates on the Act that it marks the dividing line between processing as an agricultural function and processing as a manufacturing operation (Maneja v. Waialua, 349 U.S. 254, citing 81 Cong. Rec. 7659–7660, 7877–7879). Consideration should

PRACTICES INCLUDED WHEN PERFORMED As PRO

VIDED IN SECTION 3 (f) Section 780.158 “Any” practices meeting the

requirements will qualify for exemption. The language of section 3(f) of the Act, in defining the “secondary” meaning of “agriculture”, provides that any practices performed by a farmer or on a farm as an incident to or in conjunction with such (his or its) farming operations are within the definition. The practices which may be exempt as "agriculture” if so performed are stated to include forestry or lumbering operations, preparation for market, and delivery to storage or to market or to carriers for transportation to market. The specification of these practices is illustrative rather than limiting in nature. The broad language of the definition clearly includes all practices thus performed and not merely those named (see Maneja 1. Waialua, 349 U.S. 254). Section 780.159 Named practices as well as

others must meet the requirements. The specific practices named in section 3(f) must, like any others, be performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, for this condition applies to “any” practices brought within the secondary meaning of agriculture as defined in that section of the Act. Thus, the preparation for

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market, by a farmer's employees on a farm of Section 780.162 Subordination to farming opanimals to be sold at a livestock auction is not ex erations is necessary for exemption. empt if animals from other farmers and other farms are also handled. The practice is not per

While section 3(f) speaks of practices performed as an incident to or in conjunction with

formed "in conjunction with" as well as "incident

to” farming operations, it would be an unreason"such” farming operations, that is, the operations

able construction of the Act to hold that all pracof the farmer by whom, or of the farm on which,

tices were to be regarded as agricultural if the perthe livestock is raised (Mitchell v. Hunt, 263 F.

son performing the practice did any farming, no 2d 913).

matter how little, or resorted to tilling a small "FORESTRY OR LUMBERING OPERATIONS"

acreage for the purpose of qualifying for exemp

tion (Ridgeway v. Warren, 60 F. Supp. 363 (M.D. Section 780.160 Exemption of forestry or lum Tenn.); In re Combs, 5 WH Cases 595, 10 Labor bering operations is limited.

Cases 62,802 (M.D. Ga.)). To illustrate, where Employment in forestry or lumbering operations

an employer owns several thousand acres of timis expressly included in agriculture if the opera

berland on which he carries on lumbering opera

tions and cultivates about 100 acres of farm land tions are performed by a farmer or on a farm as

which are contiguous to such timberland, he would an incident to or in conjunction with such farming

not be entitled to the benefit of the exemption so operation". While "agriculture” is sometimes

far as his forestry or lumbering operations are used in a broad sense as including the science and

concerned. In such case, the forestry or lumberart of cultivating forests, the language quoted in

ing operations would clearly not be subordinate the preceding sentence is a limitation on the

to the farming operations but rather the principal forestry and lumbering operations which will be

or a separate business of the "farmer". considered agricultural for purposes of section 3(f). It follows that employees of an employer

Section 780.163 Performance of operations on engaged exclusively in forestry or lumbering op

a farm but not by the farmer. erations are not within the agricultural exemption.

Logging or sawmill operations on a farm under

taken on behalf of the farmer or on behalf of the Section 780.161 Meaning of "forestry or lumbering operations".

buyer of the logs or the resulting lumber by a con

tract logger or sawmill owner are not within the The term "forestry or lumbering operations" refers to the cultivation and management of exemption, unless it can be shown that these logforests, the felling and trimming of timber, the ging or sawmill operations are clearly incidental cutting, hauling, and transportation of timber, to farming operations on the farm on which the logs, pulpwood, cordwood, lumber, and like

logging or sawmill operations are being conducted. products, the sawing of logs into lumber or the

For example, the clearing of additional land for conversion of logs into ties, posts, and similar

cultivation by the farmer or the preparation of products, and similar operations. It also includes

timber for construction of his farm buildings the piling, stacking, and storing of all such prod

would appear to constitute operations incidental to ucts. The gathering of wild plants and of wild or

“such farming operations". planted Christmas trees are included. (See the

Section 780.164 Number of employees engaged related discussion in Sections 780.17+780.178, and

in operations not material. in Part 788 of this chapter which considers the section 13(a) (15) exemption for forestry or log The fact that the employer employs fewer than ging operations in which not more than 12 em a certain number of employees in forestry and ployees are employed.) “Wood working” as such lumbering operations does not provide a basis for is not included in "forestry” or “lumbering" op their exemption as agricultural employees. This erations. The manufacture of charcoal under

exemption is thus to be distinguished from the exmodern methods is neither a "forestry" nor emption provided by section 13(a) (15) (discussed "lumbering" operation and cannot be regarded as in Part 788 of this chapter) which is limited to "agriculture".

employers employing not more than 12 employees

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