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Ralph Space v. Division of Employment Security

Decided: March 22, 1960.

RALPH SPACE, PETITIONER-APPELLANT,
v.
DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, AND CARL HOLDERMAN, COMMISSIONER OF LABOR AND INDUSTRY, DEFENDANTS-RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.

Price

Appellant challenges the legal propriety of the determination of the Commissioner of Labor and Industry, affirming the decision of the Director of the Division of Employment Security, that appellant is subject to the provisions of the Unemployment Compensation Law (N.J.S.A. 43:21-19(h)(1)). The specific issue is the correctness of the Commissioner's determination that services performed by appellant's employees on his farm "in the raising and breeding of mink constitute employment as defined by the Unemployment Compensation Law and do not fall within the exception of 'agricultural labor,'" (N.J.S.A. 43:21-19(i)(7)(A)). The result of such determination is to impose on petitioner the obligation of contributing to the State Unemployment Compensation Fund and the Disability Benefits Fund (hereinafter designated Funds).

The record before us reveals that initially, by letter dated December 17, 1956, the Chief of Contributors' Service of the State Department of Labor and Industry, Division of Employment Security, advised petitioner that he was obliged to make such contributions. The letter stated that petitioner "attained subject status on May 11, 1952, and would be liable for reports and employer contributions for all periods

beginning with January 1, 1952." Petitioner, requesting a hearing before the Director of the Division, contended that all of his employees were engaged in "agricultural labor" and that by virtue of N.J.S.A. 43:21-19(i)(7)(A) he was exempt from any obligation to contribute to the Funds. Following a hearing on March 29, 1957 the Director made "Findings of Fact," and on June 23, 1958 issued an "Opinion and Decision" upholding the earlier determination. Petitioner appealed to the Commissioner of Labor and Industry who, as above noted, ruled that petitioner was a "subject employer."

There is no factual dispute. Petitioner owns approximately 450 acres of farm land in Sussex County, of which 175 to 200 acres are tillable. He there conducts general farming, including the raising of corn, alfalfa, hay and fruit; has horses which he uses in farm work; has a dairy operation with approximately 60 milk cows producing approximately 216,000 quarts of milk annually. The milk is taken daily in cans to a creamery. On a three-acre section of his farm are located pens in which mink are housed. He conducts an operation involving the breeding, raising and slaughtering of approximately 8,000 mink annually and the removing, drying and grading of their pelts. The pelts are then sent to a New York auction market conducted by a corporation which grades the pelts as to quality, catalogues them and sells them on a commission basis. The mink raised by appellant are mutations or hybrids. They are bred in March, have their young in May, are weaned in July and killed by humane methods and pelted in December. Appellant testified that the breeding stock is carried from year to year.

Appellant has the usual farm equipment consisting of a four-wheel tractor, a caterpillar tractor, planters and plows. The farm buildings include the necessary and usual barns, silo and outbuildings. Between six and eight full-time farm hands are engaged throughout each year. There are seasonal additions to that number. All of the employees are engaged

indiscriminately in all of the activities: general farming, planting, raising and harvesting of crops; in the dairy operation and in the work incident to the breeding, raising and slaughtering of the mink. The length of time in each activity varies with the seasons. No employee devotes his time exclusively to any one endeavor. They work seven days a week, with every third Sunday off on a rotating basis. They have no fixed hours of daily employment. Their wages range from $165 to $250 per month. As part of the compensation for their employment appellant's employees receive rent-free housing in tenant houses on the farm; they are supplied with oil or wood for fuel and some of them receive milk.

The proofs show that products of the farm are used for the feeding and bedding of the cows and the mink. Certain meats, fish, grain and cereals for the feeding of the mink and similar grain for the cattle are procured from outside suppliers. A large amount of the alfalfa raised on the farm is mixed with vegetable matter and fed to the mink, and apples raised on the farm are also fed to them. Many tons of hay are annually used for the "bedding" and "nesting" of the mink. The remainder of the hay is stored and "used for the feeding of the cattle in the winter months." The corn is "put into silage" and likewise fed to the cattle. Both mink and cow manure are spread on the fields "as fertilizer for the crops."

It is recognized that the New Jersey Unemployment Compensation Law from its inception excepted "agricultural labor" from its coverage. However, no definition of the term has ever been incorporated in the statute.

Appellant relies on the decision of the court in Pioneer Potato Co. v. Div. of Employment Security , 17 N.J. 543 (1955), in which the significance to be accorded by our courts to comparable federal legislation in this field was determined. He contends that the Pioneer decision "when applied to the instant case compels the conclusion that mink farming is an agricultural pursuit." He takes the position that (a) "fur

farming is per se an agricultural pursuit falling within the general class of animal husbandry," and (b) that during the years under scrutiny the uncontradicted evidence conclusively shows that the "operation of the Space farm involves 'agricultural labor' whether fur farming normally does or not." He stresses the fact that "in 1939 Congress amended both the Federal Insurance Contributions Act (now 26 U.S.C.A. 3121(g)) and the Federal Unemployment Tax Act (now 26 U.S.C.A. 3306(k)) in identical fashion * * *," in the following pertinent particulars:

"For purposes of this chapter, the term ' agricultural labor ' includes all service performed --

(1) on a farm , in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;

(2) in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;

(4) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.

As used in this subsection, the term 'farm' includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards." (Emphasis supplied.)

Appellant further emphasizes that his farm operation is a unit operation involving the breeding, raising and slaughtering

of mink and the maintenance of a dairy, and not two separate and distinct operations as claimed by respondent; that although the proofs show that he makes more money from the sale of mink pelts than he derives from the sale of milk, attention should be focused on the fact that the evidence definitely established that by a wide margin the greater number of hours of labor by his employees was devoted to work which beyond controversy was agricultural; that in the tilling of the fields and the harvesting of ...


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