Arkansas Valley Industries, Inc. v. Laney

J. Fred Jones, Justice. This is an appeal by Arkansas Valley Industries, Inc. from a decision of the Pulaski County Circuit Court affirming a ruling of the Board of Review of the Arkansas Employment Security Division holding that appellees, Louis L. Scott and Raymond Standridge, former employees of Arkansas Valley Industries, Inc., are entitled to unemployment benefits under the Arkansas Employment Security Act, and that Arkansas Valley Industries, Inc. is liable for contributions under the Act on wages paid to the appellees. This case and the case of Hanford Produce Co. v. C. A. Clemmons, Lucille K. Howard and Bill Laney, Commissioner of Labor, appear here at the same time. The appellant in the Hanford case claimed exemption under Ark. Stat. Ann. § 81-1103 subsection (i) (6) (B) (Repl. 1960), as well as § 81-1103 subsection (i) (6) (0), and the appellant in the case at bar claims exemption from coverage under § 81-1103 subsection (i) (6) (O) only. Appellant relies on two points for reversal, as follows: “1. The Arkansas Employment Security Act exempts from coverage any service exempt under the terms of the Federal Unemployment Tax Act, 26 U.S.C.A. 3306. ‘ ‘ 2. The services and work performed by Appellees, Scott and Standridge, constitute agricultural labor and, are, therefore, exempt from coverage under the Arkansas Employment Security Act. Acts 1941, No. 391.” The points relied on in this case were actually disposed of more in detail in the Hanford Produce Co. case, supra, so the legislative history of the Arkansas Employment Security Act will not be reitereated here. The facts of this case and the contention of the appellant are clearly set out in its brief, and we adopt them as onr own for the purposes of this opinion. “AVI is engaged, among other things, in the production of poultry. It owns a few farms on which poultry is raised. Most of the poultry it produces, however, is through the contract grower system. Under this system, the poultry is raised by independent growers under contract wtih AVI. To insure that the poultry will be of the highest grade, certain services are supplied to the growers by AVI. These services generally consist in checking the health, feed, and housing of the flock and in supplying managerial advice to the growers. AVI supplies these services through its employees who visit the contract growers’ farms where the necessary services are provided. “The Appellees were employed by AVI to supply these services. Their specific duties were as follows: 11 Louis L. Scott — Until April 15, 1964, Scott was a farm manager who supervised the raising of cattle, and the planting and harvesting of crops on AVI owned farms. After April 16, 1964, he was a broiler serviceman, whose duties included the checking of broilers each week, the vaccination of the chickens, the testing and treating of the chickens for any disease, and the overall management of the broilers. Scott, on occasion, provided water for the chickens and other services necessary for the successful raising of the chicken. Most of these services were performed on farms , other than those owned by AVI. The last day on which Mr. Scott worked for AVI was. February 5, 1965. “Raymond Standridge — From March 22,1964 to October 9, 1964, Standridge was employed as a member of a broiler service crew. He ran blood tests on chickens, transferred flocks from one farm to another, repaired chicken houses on the farms, did some cleanup work in the chicken houses., and caught and cooped chickens when they were to be transferred from one farm to another. Most of these services were performed on farms owned by persons other than AVI. “Appellant contends that Appellees were engaged in ‘ agricultural labor ’ which is exempted from coverage under Ark. Stat. Ann. § 81-1103 (i) (6) (0) (Eepl. 1960) by reference to the Federal Unemployment Tax Act, 26 U.S.C.A. § 3306 (c) (1) Int. Rev. Cpde of 1954 § 3306 (c) (1), and therefore, that appellant is not liable for contributions with respect to wages paid to the appellees.” We agree that appellees were engaged in “agricultural labor” under the decision of Maplewood Poultry Co. v. Maine Employment Security Commission, 151 Me. 467, 121 A. 2d 360, cited by the appellant. However, appellees are not precluded from receiving benefits under Ark. Stat. Ann. § 81-1103 (i) (6) (B) under the decision of C. M. T. Company v. Maine Employment Security Commission, 163 A. 2d 369, where the Supreme Court of Maine again construed its statute after it had been amended to conform substantially with our own. Appellant’s only contention here is that the employment or service in which the appellees were engaged was exempt under the Federal Unemployment Tax Act, 26 U.S.C.A. 3306 (c) (1) as referred to in the last one sentence paragraph of Ark. Stat. Ann. § 81-1103 (i) (6) (0) . Ark. Stat. Ann. § 81-1103 (5) (i) defines employment as follows: “ ‘Employment’ means any services performed * * and 81-1103 (i) (6) insofar as it relates to the problem here, is as follows: “(6)' Exempted Employment. The term ‘employment’ shall not include— (A) Domestic service in a private home. (B) Services performed in the employ of an owner or tenánt operating á farm, in connection with the cultivation of the soil, the harvesting of crops, or the raising, feeding, or management of livestock, bees or poultry, or in connection with the processing, packing or marketing of the produce of such farms as an incident to ordinary farming operations, and services performed in the ginning of cotton. # # * “(0) Service performed in the employ of a corporation, community chest, fund, ór foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of. any private shareholder or individual. “Also any service or employment now exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under F'ederal law.” Section 26 U. S. C. A. 3306 (8) (c) defines employment as follows: “For the purposes of this chapter, the term ‘employment’ means any services performed * • * except — * * * (1) Agriculture labor [as defined in subsection (k)].” Section 26 U.S.C.A. 3306 subsection (k) is as follows: “(k) Agricultural labor, — 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.’ ’ So the question here, reduced to its lowest denominator, is whether the appellees are entitled to unemployment benefits because their services in agricultural labor were not performed in the employ of an owner or tenant operating a farm under the State law, or whether they are not entitled to unemployment benefits because their services in agricultural labor were performed on a farm, in the employment of any person under the Federal law. Appellant seems to concede that the Federal Congress has not pre_-empted the State Legislature in the matter of coverage and exemptions in the field of employment security legislation. Through the legislative process, Arkansas has enacted its own statutory provisions for agricultural exemptions under its employment security laws as above . set out. The coverage is broader and the exemptions narrower under the State law than under the Federal law, 26 U.S.C.A. 3306 (8) (c) and (k), supra. When first enacted, both the Federal Statute, U. S. Stat. at Large 74th Cong. 1935-1936, Title IX, § 907 (c) (1), arid, State Statute, Acts of Arkansas 1937, Act 115, exempted all “agricultural labor”, but by legislative amendments only “services performed in the employ of an owner or tenant operating a farm” are now exempt from the term “employment” under the State law, Ark. Stat. Ann. § 81-1103 (i) (6) (B), supra, and “all services performed on a farm, in the employment of any person” constitute the “agricultural labor” now excepted from the term “employment” under the Fedral law, 26 U. S. C. A. 3306 (8) (c) (1) (k), supra. Appellant argues that by the last, one sentence paragraph, in § 81-1103 (i) (6) (0), supra, the Arkansas Legislature adopted the broader exemption provision of the Federal law, and the more narrow exemption specifically provided in the State law no longer applies. We do not agree that such was the intent of the Arkansas Legislature in amending the 1937 Act by Act 391 of 1941, and we are so holding in the case of Hanford Produce Co. v. C. A. Clemmons, et al, 242 Ark. 240, 412 S. W. 2d 828. The judgment of the trial court is affirmed. Affirmed. FoglemaN and Byed, JJ., dissent.