In Re the Claim of Lazarus

*616 Lewis, J. The thirteen employees who by this proceeding would enforce their claims for unemployment benefits under article 18 of the Labor Law (commonly known as the Unemployment Insurance Law) were employed in 1941 by the respondent as “ bean pickers.” The operation of bean picking, as that phrase is used in this proceeding, is not descriptive of the removal of beans from the vines. It is a culling process by which dirt and waste are removed manually by employees who Are stationed at a moving belt upon which the mass of beans passes for inspection. The claimants ’ right to unemployment benefits which they now assert for a period of unemployment commencing in June, 1942, depends upon whether their prior employment by the respondent in 1941 was ‘ ‘ agricultural labor ’ ’ which is expressly excluded from the coverage of Labor Law, section 502, subdivisions 1 and 11. (L. 1941, ch. 669.) * The material provisions of the statute are as follows: Section 502, subdivision 1 “ * * * for the purposes of this article, ‘ employment ’ shall not include: (1) agricultural labor; * * * Section 502, subdivision 11 “ The term ‘ agricultural labor ’ includes all service performed * * * “ (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 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 * * * commodity after its delivery to a terminal market for distribution for consumption.” (Italics supplied.) The Unemployment Insurance Appeal Board, upon its affirmance of the referee’s decision, determined that the claimants *617 were not engaged in “ agricultural labor ” and accordingly awarded them unemployment insurance benefits based upon their earnings in such employment. The Appellate Division (one member dissenting) reversed the decision of the appeal board and ruled that the claimants were engaged in “ agricultural labor ” within the definition of the statute which denied them the unemployment insurance benefits previously awarded. We are to determine whether within the language of the statute the “ service ” rendered by the claimants as bean pickers was performed “ as an incident to the preparation of such ” beans “ for market.” The facts are undisputed and may be taken from the decision of the appeal board. The respondent corporation, to which reference will be made as the employer, deals in farm produce. In its employ were more than sixty bean pickers among whom were the thirteen claimants. On April 22, 1941, the employer discontinued its former practice of including bean pickers in its quarterly payroll reports upon which were based its contributions to the State unemployment insurance fund. Those employees were omitted upon the theory that the service performed by them as “ bean pickers ” comprised “ agricultural labor ” as defined by section 502, subdivision 11, paragraph (4) of the Unemployment Insurance Law (effective April 22, 1941) which service was excluded from unemployment insurance coverage, The employer neither owns nor operates a farm. It buys beans in bulle from various growers. When the beans have been cleaned and graded they are packed in one hundred pound bags on which appear the employer’s name. They are then sold by the employer at wholesale to canners and jobbers. In the operation of its business the employer owns or leases a number of “ bean elevators ” equipped with machinery to remove culls and waste material from the dried beans as received by the employer from the growers. To perform that service, as described in the decision of the appeal board, “ Claimants and the other bean pickers similarly employed are furnished by the employer with separate bean-picking belts. Each bean *618 picker sits alongside of her belt and, as the beans pass in front of her, picks out by hand the culls or offal.” The evidence is not disputed that on every sale of beans by a grower to the respondent employer there is deducted from the price paid the grower the cost of cleaning the beans, viz., the cost of the service performed by claimants and the other “ bean pickers.” Unless the beans are cleaned and graded — as found by the appeal board — ‘ ‘ the employer would be unable to sell the choice hand-picked beans to its customers.” It is important to note that there is no evidence of record that there was any market for the beans in the condition in which they were when received by the employer from the grower. To say — as does the appellant — that the grower sold unpicked or uncleaned beans to the employer and that such sale created a “ market ” within the language of the statute is to disregard the actual transaction between the grower and employer. The sale by grower to employer was of beans after they were cleaned. That conclusion follows from the undisputed evidence that the cost of cleaning the beans was deducted from the price paid by the employer to the grower. The beans were not marketable until after the service rendered by the claimants had been performed, the cost of which was borne by the grower. The State enactment with which we are concerned was adopted in strict conformity with earlier Federal legislation (Federal Insurance Contributions Act, U. S. Code, tit. 26, § 1400 et seq., and the Federal Unemployment Tax Act, U. S. Code, tit. 26, § 1600 et seq.). The history of the legislation shows an intent to exclude from the operation of the statute all “ agricultural labor,” whether the service is performed directly by the farmer who has machinery adapted to that operation, or by a third party in behalf of the farmer who lacks machinery essential to prepare the product for market. If, as the appellant contends, the term “ market ” as employed in the statute is to be restricted to the initial sale by the grower to the employer, the market thus created would relate to the sale of picked or cleaned beans, — not the product delivered by the grower to *619 the employer before the bean-picking service has been performed. Borrowing from the language of the statute to phrase our conclusion — the claimants were engaged in “ agricultural labor ” inasmuch as the “ service ” they performed was rendered “ as an incident to the preparation of such ” beans “ for market.” The order should be affirmed, with costs. Footnotes [*] The statute is now Labor Law, section 511, subdivision 6, paragraph (a), clause (4) (L. 1944, ch. 705).