the other farms and vines his own peas exclusively. However, the work of vining station employees in weeks in which the stations vine only peas grown by a canner on farms owned or leased by him is considered part of the canning operations. As such, the cannery operations, including the vining operations, are exempt only if the canner cans crops which he grows himself and if the canning operations are subordinate to the farming operations. Section 780.149 Place of performing the practice as a factor. So long as the farming operations to which a farmer's practice pertains are performed by him in his capacity as a farmer, the exempt status of the practice is not necessarily altered by the fact that the farming operations take place on more than one farm or by the fact that some of the operations are performed off his farm (NLRB v. Olaa Sugar Co., 242 F. 2d 714). Thus, where the practice is performed with respect to products of farming operations, the controlling consideration is whether the products were produced by the farming operations of the farmer who performs the practice rather than at what place or on whose land he produced them. Ordinarily, a practice performed by a farmer in connection with farming operations conducted on land which he owns or leases will be considered as performed in connection with the farming operations of such farmer in the absence of facts indicating that the farming operations are actually those of someone else. Conversely, a contrary conclusion will ordinarily be justified if such farmer is not the owner or a bona fide lessee of such land during the period when the farming operations take place. The question of whose farming operations are actually being conducted in cases where they are performed pursuant to an agreement or arrangement, not amounting to bona fide lease, between the farmer who performs the practice and the land-owner necessarily involves a careful scrutiny of the facts and circumstances surrounding the arrangement. Where commodities are grown on the farm of the actual grower under contract with another, practices performed by the latter on the commodities, off the farm where they were grown, relate to farming operations of the grower rather than to any farming operations of the contract purchaser. This is true even though the contract purports to lease the land to the latter, give him the title to the crop at all times, and confer on him the right to supervise the growing operations, where the facts as a whole show that the contract purchaser provides a farm market, cash advances, and advice and counsel but does not really perform growing operations (Mitchell v. Huntsville Nursuries, 267 F.2d 286). "SUCH FARMING OPERATIONS"-ON THE FARM Section 780.150 Practices must relate to farming operations on the particular farm. "Practices *** * performed on a farm" must be performed as an incident to or in conjunction with "such farming operations" in order to constitute "agriculture" within the secondary meaning of the term. No practice performed with respect to farm commodities is within the language under discussion by reason of its performance on a farm unless all of such commodities are the products of that farm. Thus, the performance on a farm of any practice, such as packing or storing, which may be incidental to farming operations cannot constitute a basis for exempting employees engaged in such practice if the practice is performed upon any commodities that have been produced elsewhere than on such farm (see Mitchell v. Hunt, 263 F. 2d 913). The construction by an independent contractor of a granary on a farm is not connected with "such" farming operations if the farmer for whom it is built intends to use the structure for storing grain produced on other farms. Nor is the requirement met with respect to employees engaged in any other practices performed on a farm, but not by a farmer, in connection with farming operations that are not conducted on that particular farm. The fact that such a practice pertains to farming operations generally or to those performed on a number of farms, rather than to those performed on the same farm only, is sufficient to take it outside the scope of the statutory language. Area soil surveys and genetics research activities, results of which are made available to a number of farmers, are typical of the practices to which this principle applies and which are not exempt under this provision. Section 780.151 Practices on a farm not related to farming operations. Practices performed on a farm in connection with nonfarming operations performed on or off 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 performed 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 691-586 0-63- 4 bility with respect to the product, is highly significant. PERFORMANCE OF THE PRACTICES "AS AN INCIDENT TO OR IN CONJUNCTION WITH" THE FARMING OPERATIONS Section 780.153 "As an incident to or in conjunction 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, 349 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 the intent of the Act. Thus, any mention or lack of mention of the particular practice in related provisions of the Act (see section 780.155), the general relationship, if any, of the practice to farming as evidenced by common understanding, competitive factors, and the prevalence of its performance by farmers (see section 780.156), and similar pertinent matters should be considered. Other factors to be considered in determining whether a practice may be properly regarded as incidental to or in conjunction with the farming operations of a particular farmer or farm include the size of the operations and respective sums invested in land, buildings and equipment for the regular farming operations and in plant and equipment for performance of the practice, the amount of the payroll for each type of work, the number of employees and the amount of time they spend in each of the activities, the extent to which the practice is performed by ordinary farm employees and the amount of interchange of employees between the operations, the amount of revenue derived from each activity, the degree of industrialization involved, and the degree of separation established between the activities. With respect to practices performed on farm products (see section 780.157) and in the consideration of any specific practices (see sections 780.158-780.183), there may be special factors in addition to those above mentioned which may aid in the determination. Section 780.155 Importance of related exemptions. As indicated in section 780.9 of Subpart A of this Part 780, the exemptions in the Act which relate to agriculture and its products should be construed together to form a consistent whole. In determining whether a given practice should be considered to be performed as an incident to or in conjunction with farming operations within the secondary meaning intended to be given to "agriculture" under the definition in section 3 (f) of the Act, it is important to consider any mention or omission of the practice in the related exemption provisions of the Act. For example, a practice for which an exemption from the overtime provisions only is specifically provided in another section of the Act would not appear to be one which Congress intended to include in "agriculture" for which a complete exemption from minimum wages and overtime is provided (see Bowie v. Gonzales, 117 F. 2d 11). The Supreme Court has considered the treatment of the practice under section 13 (a) (10) of the Act especially significant as an indication of the intent to include or exclude it under the exemption for agriculture. The section 13(a) (10) exemption for specified operations performed within the "area of production" on agricultural or horticultural commodities for market was intended, as shown by the legislative history cited by the Court, to equalize the cost position of the small farmer who does not have his own facilities to prepare the crop for market with that of the large farmer who does have such facilities, by providing a minimum wage and overtime exemption for independent operators of such facilities who provide these services for the small farmers' crops. Accordingly, in the Court's view, the omission of a particular practice from those listed in section 13 (a) (10) indicates that it is not within the intended scope of the exemption for agriculture, especially if the practice is expressly mentioned in a narrower exemption. Thus, with respect to the processing of sugar cane, the Court said in Maneja v. Waialua, 349 U.S. 254: "Congress would not have omitted sugar milling from the 'area of production' exemption if it had not concluded that it also fell outside the agricultural exemption." Section 780.156 Importance of relationship of the practice to farming generally. As pointed out previously in section 780.105, the exemption provided by sections 3 (f) and 13 (a) (6) was meant to apply only to agriculture. The inclusion of incidental practices in the definition of agriculture was not intended to exempt typical factory workers or industrial operations, and the sponsors of the exemption made it clear that the erection and operation on a farm by a farmer of a factory, even one using raw materials which he grows, "would not make the manufacturing a farming operation" (see 81 Cong. Rec. 7658; Maneja v. Waialua, 349 U.S. 254). Accordingly, in determining whether a given practice is performed "as an incident to or in conjunction with" farming operations under the intended meaning of section 3(f), the nature of the practice and the circumstances under which it is performed must be considered in the light of the common understanding of what is agricultural and *** 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 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. PRACTICES INCLUDED WHEN PERFORMED AS PROVIDED 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 v. 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 market, by a farmer's employees on a farm of animals to be sold at a livestock auction is not exempt if animals from other farmers and other farms are also handled. The practice is not performed as an incident to or in conjunction with "such" farming operations, that is, the operations of the farmer by whom, or of the farm on which, the livestock is raised (Mitchell v. Hunt, 263 F. 2d 913). "FORESTRY OR LUMBERING OPERATIONS" Section 780.160 Exemption of forestry or lumbering operations is limited. Employment in forestry or lumbering operations is expressly included in agriculture if the operations are performed "by a farmer or on a farm as an incident to or in conjunction with such farming operation". While "agriculture" is sometimes used in a broad sense as including the science and art of cultivating forests, the language quoted in the preceding sentence is a limitation on the forestry and lumbering operations which will be considered agricultural for purposes of section. 3(f). It follows that employees of an employer engaged exclusively in forestry or lumbering operations are not within the agricultural exemption. Section 780.161 Meaning of "forestry or lumbering operations". The term "forestry or lumbering operations" refers to the cultivation and management of forests, the felling and trimming of timber, the cutting, hauling, and transportation of timber, logs, pulpwood, cordwood, lumber, and like products, the sawing of logs into lumber or the conversion of logs into ties, posts, and similar products, and similar operations. It also includes the piling, stacking, and storing of all such products. The gathering of wild plants and of wild or planted Christmas trees are included. (See the related discussion in Sections 780.174-780.178, and in Part 788 of this chapter which considers the section 13 (a) (15) exemption for forestry or logging operations in which not more than 12 employees are employed.) "Wood working" as such is not included in "forestry" or "lumbering" operations. The manufacture of charcoal under modern methods is neither a "forestry" nor "lumbering" operation and cannot be regarded as "agriculture". Section 780.162 Subordination to farming operations is necessary for exemption. While section 3(f) speaks of practices performed "in conjunction with" as well as "incident to" farming operations, it would be an unreasonable construction of the Act to hold that all practices were to be regarded as agricultural if the person performing the practice did any farming, no matter how little, or resorted to tilling a small acreage for the purpose of qualifying for exemption (Ridgeway v. Warren, 60 F. Supp. 363 (M.D. Tenn.); In re Combs, 5 WH Cases 595, 10 Labor Cases 62,802 (M.D. Ga.)). To illustrate, where an employer owns several thousand acres of timberland on which he carries on lumbering operations and cultivates about 100 acres of farm land which are contiguous to such timberland, he would not be entitled to the benefit of the exemption so far as his forestry or lumbering operations are concerned. In such case, the forestry or lumbering operations would clearly not be subordinate to the farming operations but rather the principal or a separate business of the "farmer". Section 780.163 Performance of operations on a farm but not by the farmer. Logging or sawmill operations on a farm undertaken on behalf of the farmer or on behalf of the buyer of the logs or the resulting lumber by a contract logger or sawmill owner are not within the exemption, unless it can be shown that these logging or sawmill operations are clearly incidental to farming operations on the farm on which the logging or sawmill operations are being conducted. For example, the clearing of additional land for cultivation by the farmer or the preparation of timber for construction of his farm buildings would appear to constitute operations incidental to "such farming operations". Section 780.164 Number of employees engaged in operations not material. The fact that the employer employs fewer than a certain number of employees in forestry and lumbering operations does not provide a basis for their exemption as agricultural employees. This exemption is thus to be distinguished from the exemption provided by section 13 (a) (15) (discussed in Part 788 of this chapter) which is limited to employers employing not more than 12 employees |