Jesus Cerda et al., Plaintiffs-appellants, v. Jose Bravo, D/b/a Bravo Labor Agency, and the Packerlandpacking Company of Chippewa Falls, Wisconsin,defendants-appellees, 575 F.2d 560 (5th Cir. 1978)

Plaintiffs, who consist of sixteen migrant farm workers, seek declaratory and injunctive relief and damages under the Farm Labor Contractor Registration Act of 1963, 7 U.S.C. § 2041 et seq. (1970), against defendants Jose Bravo and Packerland Packing Company of Chippewa Falls, Wisconsin. Plaintiffs also assert pendant claims for violations of the Texas Farm Agency Law, Vernon's Tex.Stat.Ann., Art. 5221a-5 et seq. The district court dismissed the complaint for failure to state a claim on which relief could be granted and plaintiffs appeal.

In October 1973 defendant Packerland contacted Jose Bravo, a labor contractor in Hidalgo, Texas, to recruit workers for employment at the Packerland plant in Chippewa Falls, Wisconsin. The Packerland facility was a custom slaughter house for beef animals. Packerland did not own the animals slaughtered and the processed beef was normally sold by Packerland's clients. Plaintiffs were recruited by Bravo for employment in meat cutting production jobs at the Chippewa Falls plant. Before leaving Texas for Wisconsin the workers received a written statement of the terms of employment including salary and living conditions. The written statement further indicated that the plant where the men would be working was being picketed.¹  Upon their arrival in Chippewa Falls plaintiffs discovered that a serious labor dispute was in progress. Because of the strike police protection was required while the men were at the plant. Plaintiffs also found the housing facilities inadequate. Because of these conditions plaintiffs left Chippewa Falls two days after their arrival there and returned to Texas. They were paid for their work as well as transportation expenses. In this suit plaintiffs alleged that they suffered economic loss and injury as a result of misrepresentations concerning these conditions at the Packerland plant.

Plaintiffs' suit is based on the premise that the Farm Labor Contractor Registration Act of 1963 provides a private right of action for farm workers injured through the failure to comply with its provisions. Since the Act does not explicitly grant such a right, this Court is asked to hold that a remedy is implied under the statute pursuant to the standards set forth in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). However, it is not necessary that we reach the question of implied remedy in this case since plaintiffs lack standing to assert it, the employment at issue here not being covered by the Act.² 

The provisions of the Farm Labor Contractor Registration Act of 1963 apply only to contractors who hire migrant workers for interstate agricultural employment. See 7 U.S.C. § 2042(d) (1970). The Act specifically defines "interstate agricultural employment" by reference to the provisions of the Fair Labor Standards Act, 29 U.S.C. § 203(f) (1970) and the Federal Insurance Contributions Act, 26 U.S.C. § 3121(g) (1970).³  Prior cases interpreting these sections indicate that the work at the Packerland facility does not constitute agricultural employment.

The United States Supreme Court considered the provisions of 29 U.S.C. § 203(f) in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S. Ct. 1274, 93 L. Ed. 1672 (1949), where the issue presented was whether employees of a corporation that collected water and delivered it to the edge of the farmers' land were agricultural workers and therefore exempt from the Fair Labor Standards Act. To decide the question, the Court focused on "whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity." Id. at 761, 69 S. Ct. at 1278. In its analysis of section 203(f) the Court divided agricultural employment into two types.

As can be readily seen this definition (in section 203(f)) has two distinct branches. First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with "such" farming operations.

Id. at 762-63, 69 S. Ct. at 1278. While noting that water was necessary for the production of crops, the Court found that under these standards the employees were not engaged in agricultural employment and that their activities were not within the primary meaning of agriculture because bringing water to the edge of the farmers' land was not itself cultivating the crops. The actual irrigation of the fields was done by workers of the individual farmer rather than by workers of the irrigation company. Further, the labor was not within the secondary meaning since while the collection of water for irrigation is connected with farming operations, in this case that function was performed neither by farmers nor on a farm.

Previous cases in this Circuit have applied these principles to cases involving employees of companies engaged in the processing and distribution of food products. For example, employees working at a facility primarily for receiving, weighing and holding livestock for resale were held not to be engaged in agriculture. See Hodgson v. Wittenburg, 5 Cir., 1972, 464 F.2d 1219. See also Chapman v. Durkin, 5 Cir., 1954, 214 F.2d 360, cert. denied, 348 U.S. 897, 75 S. Ct. 218, 99 L. Ed. 704 (1954).

The Federal Insurance Contributions Act also defines agricultural labor to exclude employees of distributors of agricultural products when the distributors are not farmers. See 26 U.S.C. § 3121(g) (4) (1970). We have previously interpreted this definition to exempt from the Federal Insurance Contributions Act employees of a cooperative which purchased fruit for packing and marketing because the packing and marketing of fruit was commercial in nature rather than incident to ordinary farming operations. See Lake Region Packing Ass'n v. United States, 5 Cir., 1944, 146 F.2d 157.

Applying these standards to the facts of this case, it is apparent that Packerland did not provide agricultural employment to plaintiffs. Packerland's activities are not covered by the primary definition of agricultural employment since Packerland is not involved in the raising of beef. Similarly, the broader meaning of agricultural employment given in Farmers Reservoir & Irrigation Co. v. McComb, supra, does not apply since the slaughter of beef is not being done by a farmer or on a farm. Instead the employment offered by Packerland is a commercial activity which has been separated from agricultural employment.

The 1974 amendments to the Farm Labor Contractor Registration Act⁴  do not affect the result in this case. The events in this case occurred before the 1974 amendments, and accordingly are not affected by the new provisions of the Act. The argument that this amendment merely clarifies the definition of interstate agricultural employment as Congress originally intended it, is without merit. The prior provisions of 7 U.S.C. § 2042(d) (1970) clearly limited that term to the definitions contained in 29 U.S.C. § 203(f) and 26 U.S.C. § 3121(g) to which we have previously referred. Further, the legislative history indicates that Congress viewed the amendments as expanding the prior coverage of the Act.

The purpose of S. 3202 is to remedy the deficiencies of the Farm Labor Contractor Registration Act of 1963. The bill extends the Act's coverage and strengthens its enforcement mechanisms.

. . . The bill also adds coverage for employment involving the processing of agricultural commodities in an unmanufactured state.

1974 U.S.Code Cong. & Admin.News, pp. 6445-46.

Hence, we conclude that the employment offered by Packerland to plaintiffs was not agricultural employment and therefore that plaintiffs lack standing to bring an action under the Farm Labor Contractor Registration Act of 1963. Accordingly, the judgment below is correct and is

AFFIRMED.