Ochoa v. Weisensee Ranch, Inc.

• Citation: 93 Or.App. 520,763 P.2d 173
• Parties: , 29 Wage & Hour Cas. (BNA) 59, 110 Lab.Cas. P 35,147 Miguel OCHOA, Appellant, v. The WEISENSEE RANCH, INC., an Oregon Corporation, Respondent. C11-078; CA A43902.
• Decision Date: 26 October 1988
• Court: Oregon Court of Appeals

Page 173

763 P.2d 173

93 Or.App. 520, 29 Wage & Hour Cas. (BNA) 59,

110 Lab.Cas. P 35,147

Miguel OCHOA, Appellant, v. The WEISENSEE RANCH, INC., an Oregon Corporation, Respondent.

C11-078; CA A43902.

Court of Appeals of Oregon.

Argued and Submitted Dec. 9, 1987.

Decided Oct. 26, 1988.

Nargess Shadbeh, Woodburn, argued the cause and filed the brief for appellant.

Barry L. Adamson, Portland, argued the cause for respondent. With him on the brief was Williams, Fredrickson, Stark & Weisensee, P.C., Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Plaintiff appeals from the decision of the trial court holding that his work on defendant's Christmas tree farm constitutes agricultural employment under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq, and that, therefore, he is not entitled to overtime pay for those weeks in which he worked more than 40 hours.

Defendant moved to dismiss the appeal on the ground that the amount in controversy is less than $250. ORS 19.010(3) provides:

"No appeal to the Court of Appeals shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings that the amount in controversy exceeds $250."

Plaintiff alleged, and defendant denied, that he is entitled to $5,663.31. The "amount in controversy" is determined by the pleadings, Libby v. Southern Pac. Co., 109 Or. 449, 219 P. 604, 220 P. 1017 (1923), not by the result of the controversy. Lowe v. Brown, 114 Or. 426, 233 P. 272, 235 P. 395 (1925).

Defendant asserts that the amount in controversy is less than $250 because the parties have stipulated that, if plaintiff is entitled to recover, he is entitled to $120.82 in unpaid overtime wages and to the same amount in liquidated damages under FLSA. Plaintiff has also alleged that he is entitled to a civil penalty under ORS 652.150, the amount of which is agreed to be $2,969; however, defendant contends that plaintiff is not entitled to the state-provided civil penalty as a matter of law. Therefore, it argues that the only amount in controversy is less than $250. The trial court, given its decision that plaintiff's work was exempt from FLSA, did not decide whether plaintiff is entitled to invoke ORS 652.150.

We believe that it is clear that the "amount in controversy" exceeds $250, given the pleadings and also the stipulation. It is agreed that the only issue on appeal is whether the trial court erred in holding that plaintiff's work was agricultural. The motion to dismiss is denied.

The parties stipulated to the facts. Plaintiff worked for defendant at various times from 1983 to 1985, engaging in the cultivation and harvesting of Christmas trees. He sometimes worked more than 40 hours per week; he always received only his regular hourly wage, without any overtime pay. Defendant's only enterprise is the cultivation of Christmas trees. If plaintiff was not employed in agriculture as defined in FLSA, then he is entitled to recover unpaid overtime wages. As indicated above, FLSA provides for the same amount in liquidated damages, and the state provides for a civil penalty, the applicability of which has not been decided.

The only question is one of law: Is defendant's Christmas tree operation "agriculture" under FLSA? The federal law requires that an employer pay overtime wages to any employe who works more than 40 hours in a week. 29 U.S.C. § 207(a)(1). That provision does not cover several types of workers, including persons employed in agriculture. 29 U.S.C. § 213(b)(12). "Agriculture" is defined in 29 U.S.C. § 203(f):

" 'Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market."

The statutory definition does not clearly include or exclude Christmas tree cultivation. The Department of Labor has issued "interpretive bulletins" which set out the department's construction of FLSA. Although the bulletins are not regulations promulgated in accordance with the federal Administrative Procedures Act, they are the department's official interpretation of the act. 29 CFR § 780.5 to § 780.7. They contain a comprehensive definition of agriculture. 29 CFR § 780.0 et seq. Employes who are involved in the cultivation of Christmas trees are not considered to be engaged in agriculture and are, therefore, not exempt from the provisions of FLSA requiring payment for overtime.

"Trees grown in forests and the lumber derived therefrom are not 'agricultural or horticultural commodities.' Christmas trees, whether wild or planted, are also not so considered. It follows that employment in the production, cultivation, growing, and harvesting of such trees or timber products is not sufficient to bring an employee within section 3(f) unless the operation is performed by a farmer or on a farm as an incident to or in conjunction with his or its farming operations." 29 CFR § 780.115 (1987).

That definition excludes Christmas tree cultivation, unless it is performed "as an incident to or in conjunction with a farming operation." Because defendant's sole operation was the cultivation of Christmas trees, that activity was not incident to, or in conjunction with, any other pursuit. Therefore, if we accept the department's interpretation of agriculture, plaintiff is correct in his argument that his employment was not in agriculture.

Defendant argues that the interpretive bulletins are not regulations and that this court is free to fashion its own interpretation of FLSA. Unlike other federal laws, such as the National Labor Relations Act or the Interstate Commerce Act, which place the responsibility for applying and interpreting the particular act on an agency or department, the courts have the responsibility for interpreting and applying FLSA to particular facts. Kirschbaum v. Walling, 316 U.S. 517, 523, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638 (1942). The United States Supreme Court discussed the appropriate deference that courts should give to the department's interpretive bulletins in Skidmore v. Swift & Co., 323 U.S. 134, 139, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944):

"There is no statutory provision as to what, if any, deference courts should pay to the Administrator's conclusions. * * * The rulings of this Administrator are not reached as a result of hearing adversary proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. They are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district court's processes, as an authoritative pronouncement of a higher court might do. But the Administrator's policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. * * * Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons.

"We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason...