It is clear from the language of section 13(a)(5) and section
13(b)(4) of the Act, and from their legislative history as discussed in
Secs. 784.102-784.105, that the exemptions which they provide are
applicable only to those employees who are ``employed in'' the named
operations. Under the Act as amended in 1961 and in accordance with the
evident legislative intent (see Sec. 784.105), an employee will be
considered to be ``employed in'' an operation named in section 13(a)(5)
or 13(b)(4) where his work is an essential and integrated step in
performing such named operation (see Mitchell v. Myrtle Grove Packing
Co., 350 U.S. 891, approving Tobin v. Blue Channel Corp., 198 F. 2d 245;
Mitchell v. Stinson, 217 F. 2d 210), or where the employee is engaged in
activities which are functionally so related to a named operation under
the particular facts and circumstances that they are necessary to the
conduct of such operation and his employment is, as a practical matter,
necessarily and directly a part of carrying on the operation for which
exemption was intended (Mitchell v. Trade Winds, Inc., 289 F. 2d 278;
see also Waller v. Humphreys, 133 F. 2d 193 and McComb v. Consolidated
Fisheries Co., 174 F. 2d 74). Under these principles, generally an
employee performing functions without which the named operations could
not go on is, as a practical matter, ``employed in'' such operations. It
is also possible for an employee to come within the exemption provided
by section 13(a)(5) or section 13(b)(4) even though he does not directly
participate in the physical acts which are performed on the enumerated
marine products in carrying on the operations which are named in that
section of the Act. However, it is not enough to establish the
applicability of such an exemption that an employee is hired by an
employer who is engaged in one or more of the named operations or that
the employee is employed by an establishment or in an industry in which
operations enumerated in section 13(a)(5) or section 13(b)(4) are
performed. The relationship between what he does and the performance of
the named operations must be examined to determine whether an
application of the above-stated principles to all the facts and
circumstances will justify the conclusion that he is ``employed in''
such operations within the intendment of the exemption provision.
