(a) The statement of the Managers on the Part of the House in the
conference report on the Fair Labor Standards Amendments of 1961 (H.
Rept. No. 327, 87th Cong., first session, p. 16) refers to the fact that
the changes made in sections 13(a)(5) and 13(b)(4) originated in the
Senate amendment to the House bill and were not in the bill as passed by
the House. In describing the Senate provision which was retained in the
final legislation, the Managers stated that it ``changes the exemption
in the act for'' the operations transferred to section 13(b)(4) from
section 13(a)(5) ``from a minimum wage and overtime exemption to an
overtime only exemption.'' They further stated: ``The present complete
exemption is retained for employees employed in catching, propagating,
taking, harvesting, cultivating, or farming fish and certain other
marine products, or in the first processing, canning, or packing such
marine products at sea as an incident to, or in conjunction with, such
fishing operations, including the going to and returning from work and
loading and unloading when performed by such an employee.'' In the
report of the Senate committee on the provision included in the Senate
bill (S. Rept. No. 145, 87th Cong., first session, p. 33), the committee
stated: ``The bill would modify the minimum wage and overtime exemption
in section 13(a)(5) of the Act for employees engaged in fishing and in
specified activities on aquatic products.'' In further explanation, the
report states that the bill would amend this section ``to remove from
this exemption those so-called on-shore activities and leave the
exemption applicable to `offshore' activities connected with the
procurement of the aquatic products, including first processing,
canning, or packing at sea performed as an incident to fishing
operations, as well as employment in loading and unloading such products
for shipment when performed by any employee engaged in these procurement
operations.'' It is further stated in the report that ``persons who are
employed in the activities removed from the section 13(a)(5) exemption
will have minimum wage protection but will continue to be exempt from
the Act's overtime requirements under an amended section 13(b)(4). The
bill will thus have the effect of placing fish processing and fish
canning on the same basis under the Act. There is no logical reason for
treating them differently and their inclusion within the Act's
protection is desirable and consistent with its objectives.''
(b) The language of the Managers on the Part of the House in the
conference report and of the Senate committee in its report, as quoted
above, is consistent with the position supported by the earlier
legislative history and by the courts, that the exemption of an employee
under these provisions of the Act depends on what he does. The Senate
report speaks of the exemption ``for employees engaged in fishing and in
specified activities'' and of the ``activities now enumerated in this
section.'' While this language confirms the legislative intent to
continue to provide exemptions for employees employed in specified
activities rather than to grant exemption on an industry, employer, or
establishment basis (see Mitchell v. Trade Winds, Inc., 289 F. 2d 278),
the report also refers with apparent approval to certain prior judicial
interpretations indicating that the list of activities set out in the
exemption provisions is intended to be ``a complete catalog of the
activities involved in the fishery industry'' and that an employee to be
exempt, need not engage directly in the physical acts of catching,
processing, canning, etc. of aquatic products which are included in the
operation specifically named in the statute (McComb v. Consolidated
Fisheries Co., 174 F. 2d 74). It was stated that an interpretation of
section 13(a)(5) and section 13(b)(4) which would include within their
purview ``any employee who participates in activities which are
necessary to the conduct of the operations specifically described in the
exemptions'' is ``consistent with the congressional purpose'' of the
1961
amendments. (See Sen. Rep. No. 145, 87 Cong., first session, p. 33;
Statement of Representative Roosevelt, 107 Cong. Rec. (daily ed.) p.
6716, as corrected May 4, 1961.) From this legislative history the
intent is apparent that the application of these exemptions under the
Act as amended in 1961 is to be determined by the practical and
functional relationship of the employee's work to the performance of the
operations specifically named in section 13(a)(5) and section 13(b)(4).
