As noted in Sec. 784.106 and elsewhere in the previous discussion,
the section 13(b)(4) exemption depends on employment of the employee in
the operations named in that section and does not
apply on an establishment basis. However, the fact that an establishment
is exclusively devoted to operations specified in section 13(b)(4) is,
in the absence of evidence to the contrary, an indication that the
employees employed there are employed in the named operations either
directly or through the performance of functions so necessary to
conducting the operations that the employment should, in practical
effect, be considered a part of the activity intended to be exempted.
Where this is the case, it is consistent with the legislative intent to
avoid segmentation and treat all employees of the establishment in the
same manner (see Sen. Rep. No. 145, 87th Cong. first session, p. 33).
Accordingly, where it can be demonstrated that an establishment is,
during a particular workweek, devoted exclusively to the performance of
the operations named in section 13(b)(4), on the forms of aquatic life
there specified, any employee of the establishment who is employed there
during such workweek will be considered to be employed in such
operations and to come within the exemption if there are no other facts
pertinent to his employment that require a particular examination of the
functions which he performs in connection with the conduct of the named
operations. If, however, there are any facts (for example, the
employment of the same employee at the establishment or the engagement
by other employees in like duties there during periods when none of the
named operations are being carried on) which raise questions as to
whether he is actually engaged in the exempt activities, it will be
necessary to scrutinize what he is actually doing during the conduct of
the operations named in section 13(b)(4) in order to determine the
applicability of the exemption to him. This is necessary because an
employee who would not otherwise be within the exemption such as a
carpenter doing repair work during the dead season, does not become
exempt as ``employed in'' one of the named activities merely because the
establishment begins canning or processing fish.
