in the forestry or logging operations described therein.

"PREPARATION FOR MARKET"

Section 780.165 Scope and limits of exemption for "preparation for market".

"Preparation for market" is also named as one of the practices which may be included in "agriculture". The term includes the operations normally performed upon farm commodities to prepare them for the farmer's market. The farmer's market normally means the wholesaler, processor, or distributing agency to which the farmer delivers his products. "Preparation for market" clearly has reference to activities which precede "delivery to market". It is not, however, synonymous with "preparation for sale". The term must be treated differently with respect to various commodities. It is emphasized that "preparation for market", like other practices, must be performed "by a farmer or on a farm as an incident to or in conjunction with such farming operations" in order to be exempt.

Section 780.166 Particular operations on commodities.

Subject to the rules heretofore discussed, the following activities are, among others, activities that may be performed in the "preparation for market" of the indicated commodities and may come within the exemption:

(a) Grain, seed, and forage crops. Weighing, binning, stacking, drying, cleaning, grading, shelling, sorting, packing and storing.

(b) Fruits and vegetables. Assembling, ripening, cleaning, grading, sorting, drying, preserving, packing, and storing. (See In the Matter of J. J. Crosetti, 29 LRRM 1353, 98 NLRB 268; In the Matter of Imperial Garden Growers, 91 NLRB 1034, 26 LRRM 1632; Lenroot v. Hazelhurst Mercantitle Co., 59 F. Supp. 595; North Whittier Heights Citrus Ass'n v. NLRB, 109 F. 2d 76; Dofflemeyer v. NLRB, 206 F. 2d 813.)

(c) Peanuts and nuts (pecans, walnuts, etc.). Grading, cracking, shelling, cleaning, sorting, packing, and storing.

(d) Eggs. Handling, cooling, grading, candling, and packing.

(e) Wool. Grading and packing.

(f) Dairy products. Separating, cooling, packing, and storing.

(g) Cotton. Weighing, ginning, and storing cotton; hulling, delinting, cleaning, sacking, and storing cottonseed.

(h) Nursery stock. Handling, sorting, grading, trimming, bundling, storing, wrapping, and packaging. (See Jordan v. Stark Brothers Nurseries, 45 F. Supp. 769; Mitchell v. Huntsville Nurseries, 267 F.2d 286.)

(i) Tobacco. Handling, grading, drying, stripping from stalk, tying, sorting, storing, and loading.

(j) Livestock. Handling and loading.

(k) Poultry. Culling, grading, cooping, and loading.

(1) Honey. Assembling, extracting, heating, ripening, straining, cleaning, grading, weighing, blending, packaging, and storing.

(m) Fur. Removing the pelt, scraping, drying, putting on boards, and packing.

SPECIFIED DELIVERY OPERATIONS

Section 780.167 Application of exemption to specified delivery operations generally. Exempt employment in "secondary" agriculture, under sections 3(f) and 13(a) (6), includes employment in "delivery to storage or to market or to carriers for transportation to market" when performed by a farmer as an incident to or in conjunction with his own farming operations. To the extent that such deliveries may be accomplished without leaving the farm where the commodities delivered are grown, the exemption extends also to employees of someone other than the farmer who raised them if they are performing such deliveries for the farmer. However, normally such deliveries require travel off the farm, and where this is the case, only employees of a farmer engaged in making them can come within the exemption. Such employees would not be exempt in any workweek when they delivered commodities of other farmers, however, because such deliveries would not be performed as an incident to or in conjunction with "such" farming operations, as explained previously. If the "delivery" trip is an exempt practice, the necessary return trip to the farm is also exempt as a part of it.

transporting the commodities off the farm (Chapman v. Durkin, 214 F. 2d 360, cert. denied, 348 U.S. 897; Fort Mason Fruit Co. v. Durkin, 214 F.2d 363, cert. denied, 348 U.S. 897).

Section 780.172 Other transportation incident to farming.

(a) Transportation by a farmer or on a farm as an incident to or in conjunction with the farming operations of the farmer or of that farm is within the exemption for agriculture even though things other than farm commodities raised by the farmer or on the farm are being transported. As previously indicated, transportation of commodities raised by other farmers or on other farms would defeat the exemption. The exemption clearly covers the transportation by the farmer, as an incident to or in conjunction with his farming activities, of farm implements, supplies, and field workers to and from the fields, regardless of whether such transportation involves travel on or off the farm and regardless of the method used. The Supreme Court of the United States so held. in Maneja v. Waialua, 349 U.S. 254. Transportation of field workers to or from the farm by persons other than the farmer does not come within the exemption. However, under section 13 (a) (22) of the Act, discussed in Subpart E of this Part 780, an exemption is provided for transportation, whether or not performed by the farmer, of fruit or vegetable harvest workers to and from the farm, within the same State where the farm is located. In the case of transportation to the farm of materials or supplies, it seems clear that transportation to the farm by the farmer of materials and supplies for use in his farming operations, such as seed, animal or poultry feed, farm machinery or equipment, etc., would be incidental to the farmer's actual farming operations. Thus, truck drivers employed by a farmer to haul feed to the farm for feeding pigs are engaged in "agriculture."

(b) With respect to the practice of transporting farm products from farms to a processing establishment by employees of a person who owns both the farms and the establishment, such practice may or may not be incident to or in conjunction with the employer's farming operations depending on all the pertinent facts. For example, the transportation is clearly incidental to milling operations, rather than to farming, where the employees engaged in it are hired by the mill, carried

on its payroll, do no agricultural work on the farms, and report for and end their daily duties at the mill where the transportation vehicles are kept (Calaf v. Gonzales, 127 F. 2d 934). On the other hand, a different result is reached where the facts show that the transportation workers are farm employees whose work is closely integrated with harvesting and other direct farming operations (NLRB v. Olaa Sugar Co., 242 F. 2d 714; and see Vives v. Serralles, 145 F. 2d 552). The method by which the transportation is accomplished is not material (Maneja v. Waialua, 349 U.S. 254).

OTHER UNLISTED PRACTICES WHICH MAY BE ЕХЕМРТ

Section 780.173 Examples of practices exempt if requirements of section 3(f) are met. (a) As has been noted above, the term "agriculture" includes other practices performed by a farmer or on a farm as an incident to or in conjunction with the farming operations conducted by such farmer or on such farm in addition to the practices listed in section 3(f). The selling (including selling at roadside stands or by mail order and house to house selling) by a farmer and his employees of his agricultural commodities, dairy products, etc., is such a practice provided it does not amount to a separate business. Other such practices are office work and maintenance and protective work. The exemption applies, for example, to secretaries, clerks, bookkeepers, night watchmen, maintenance workers, engineers, and others who are employed by a farmer or on a farm if their work is part of the agricultural activity and is subordinate to the farming operations of such farmer or on such farm. (Damutz v. Pinchbeck, 66 F. Supp. 667, aff'd. 158 F. (2d) 882). Employees of a farmer who repair the mechanical implements used in farming, as a subordinate and necessary task incident to their employer's farming operations, are within the exemption. It makes no difference that the work is done by a separate labor force in a repair shop maintained for the purpose, where the size of the farming operations is such as to justify it. Only employees engaged in the repair of equipment used in performing agricultural functions would be exempt, however; employees repairing equipment used by the employer in industrial or other nonfarming activities would have to qualify under other ex

dental to farming operations. It is therefore exempt if performed by a farmer or on a farm. Thus, if performed by employees of the nursery, it is exempt. On the other hand, if performed off the farm by employees of an independent contractor, it is not exempt. The transplanting of such wild plants in the nursery is performed "on a farm" and is exempt whether performed by employees of an independent contractor or by employees of the nursery.

Section 780.177 Forest and Christmas tree activities.

Operations in a forest tree nursery such as seeding new beds and growing and transplanting forest seedlings are not farming operations. The planting, tending, and cutting of Christmas trees do not constitute farming operations. If such operations on forest products are within section 3 (f), they must qualify under the second part of the definition dealing with incidental practices. (See section 780.160.)

Section 780.178 Packing, storage, warehous

ing, and sale of nursery products. Employees of a grower of nursery stock who work in packing and storage sheds sorting the stock, grading and trimming it, racking it in bins, and packing it for shipment are employed in "agriculture" provided they handle only products grown by their employer and their activities constitute an established part of their employer's agricultural activities and are subordinate to his farming operations. Such employees are not employed in agriculture when they handle the products of other growers (Mitchell v. Huntsville Nurseries, 267 F. 2d 286; Jordan v. Stark Bros. Nurseries & Orchards Co., 45 F. Supp. 769). The exemption would typically apply to employees engaged in the balling and storing of shrubs and trees grown in the nursery. Where a grower of nursery stock operates, as a separate enterprise, a processing establishment or an establishment for the wholesale or retail distribution of such commodities, the employees in such separate enterprise are not exempt (see Walling v. Rocklin, 132 F. 2d 3; Mitchell v. Huntsville Nurseries, 267 F. 2d 286). Although the handling and the sale of nursery commodities by the grower at or near the place where they were grown may be incidental to his farming operations, the character of these opera

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tions changes when they are performed in an establishment set up as a marketing point to aid in the distribution of those products.

APPLICATION OF SECTIONS 3(f) AND 13(a) (6) To HATCHERIES

Section 780.179 The typical hatchery operations constitute "agriculture".

As stated in section 780.136, the typical hatchery is engaged in "agriculture", whether in a rural or city location. Where the hatchery is engaged solely in procuring eggs for hatching, performing the hatching operations and selling the chicks, all the employees including office and maintenance workers are exempt (see Miller Hatcheries v. Boyer, 131 F. 2d 283).

Section 780.180 Contract production of hatching eggs.

It is common practice for hatcherymen to enter into arrangements with farmer poultry raisers for the production of hatching eggs which the hatchery agrees to buy. Ordinarily, the farmer furnishes the facilities, feed and labor and the hatchery furnishes the basic stock of poultry. The farmer undertakes a specialized program of care and improvement of the flock in cooperation with the hatchery. The hatchery may at times have a surplus of eggs, including those suitable for hatching and culled eggs which it sells. Activities such as grading and packing performed by the hatchery employees in connection with the disposal of these eggs, are an incident to the breeding of poultry by the hatchery and are exempt. Section 780.181 Hatchery employees working on farms.

The work of hatchery employees in connection with the maintenance of the quality of the poultry flock on farms is also part of the "raising" operations. This includes testing for disease, culling, weighing, cooping, loading, and transporting the culled birds. The catching and loading of broilers on farms by hatchery employees for transportation to market are exempt operations. Section 780.182 Produce business.

In some instances, hatcheries also engage in the produce business as such and commingle with the culled eggs and chickens other eggs and chickens.