The court found that all the above testimony was credible because, inter alia, defendant did not rebut the testimony with proof that there was an organized and consistent acclimatization process at MAG whereby plants were pulled for resale only after the acclimatization process had been completed. Indeed, all the facts and circumstances indicate that while some of the work performed was calculated to produce growth to maturity or substantial maturity or to acclimate the plants, some work was simply designed to care for or preserve the plants while at MAG until they were resold. Although Joe Cerri, the grower primarily responsible for the Florida foliage, testified that only 10 to 15 floor plants leave the facility within two weeks of arriving at MAG, there was ample testimony that the Florida foliage left the facility in much shorter periods of time and, more important, that there was no system in place to guarantee that this did not occur. Moreover, that the Florida foliage is inspected for damage, disease, and insects when it arrives is inconsequential since not only is this activity not necessarily primary agriculture but some of these plants are immediately resold anyway.
At bottom, all the evidence leads to the conclusion that, while acclimatization of the Florida foliage may have been the goal at MAG, the practice was different. Some plants went out as soon as they were loaded, there was no method of monitoring how long plants stayed, and there is credible testimony that not all the foliage was subject to acclimatization. Although the proposition that a systematic program of acclimatization constitutes primary or secondary agriculture is compelling, this Court does not decide that today because it finds that no such program existed at MAG.
The court is therefore compelled to conclude that defendant has failed to establish that the employees's work performed with respect to the Florida foliage is not exempt under the FLSA.
Defendant responds that between 1986 and 1991 the Florida foliage constituted on average two percent (2%) of its total sales. Moreover, defendant claims that the plants occupy a relatively insignificant portion of the greenhouse. These arguments form the basis of defendant's contention that, under the de minimis doctrine, the nonexempt work made plain by the evidence, does not defeat the exemption.
To be sure, some Florida foliage underwent the proper acclimatization process and were not resold immediately upon arrival or soon thereafter. However, it was defendant's burden to establish entitlement to the exemption by demonstrating that all of its employees' work constitutes either primary or secondary agriculture. The evidence is clear, however, that a significant, though not substantial, portion of their activity is neither. Moreover, as this court determined earlier, the doctrine of de minimis has little if any application in the context of the FLSA exemptions.
Furthermore, the court finds that, if applied, the de minimis doctrine would not preserve the availability of the exemption since defendant has failed to convincingly demonstrate that the percentage of work on the Florida foliage and other nonexempt work, when aggregated, is so minuscule as to be de minimis. Accordingly, plaintiffs are entitled to overtime compensation for any workweeks in which they performed work on or relating to plants purchased from independent growers.
2. Work performed relating to "hard goods"
Defendant claims that work performed relating to hard goods is exempt as secondary agriculture. Specifically, defendant contends that, when "all the facts surrounding [the] operation" are considered, it is apparent that the small irregular sales of hard goods are merely incidental to the overall farming operations at MAG. Indeed, defendant concedes that it sometimes sells hard goods to smaller neighboring greenhouses and to its customers as a courtesy. From 1986 to 1991, defendant sold between $ 3,000 to $ 9,000 worth of hard goods. These sales totaled approximately eight one-hundredths of one percent (.08%) of defendants' total sales during that period. The hard goods were sometimes sold at cost.
As established above, in order for the broader secondary agricultural activity to fall within the scope of the exemption, it must be (1) performed either by a farmer or on a farm and (2) incidental to or in conjunction with such farming operations. There is no dispute that the relevant activity meets the first criterion. Rather the question is whether the sale of hard goods is incidental to or in conjunction with defendant's farming operations.
In Farmers Reservoir, the Court concluded that work performed by employees of a water supply company cooperatively owned by a group of farmers was not exempt as secondary agricultural work even though the work was incidental to agriculture because it was not performed either by farmers or on a farm. Farmers Reservoir & Irrigation Co., 337 U.S. at 767, 69 S. Ct. at 1281. The Court reasoned that the employees' work was not performed by farmers, although the company that employed them was wholly owned by farmers, because the company had been established as an independent entity to supply water to farmers--an activity that the court characterized as self-contained and separate from the farmers' farming activities. The Court considered that whether the farming operations were "separately organized as an independent productive activity." Id. at 760-61, 69 S. Ct. at 1278. The Court also reasoned that the employees' work was not exempt as work performed on a farm because the employees worked only on waterways owned by the company and never worked on the farms to which the company supplied water. Id. at 767-768, 69 S. Ct. at 1281.
In Maneja v. Waialua Agricultural Co., 349 U.S. 254, 75 S. Ct. 719, 99 L. Ed. 1040 (1955), the Court concluded that certain employees of a corporate sugar plantation were exempt from the FLSA's wage and hour provisions while others were not exempt even though, unlike the Farmers Reservoir employees, all of the Waialua employees worked both for a farmer and on a farm. The Court held that employees who operated the farm's railroad to transport work crews, equipment, and supplies to and from the fields and sugar cane to the processing plant and those who repaired the mechanical implements used in farming were exempt because their tasks were incidental to the farm's primary agricultural activities. Employees who worked in the corporation's sugar processing plant and who maintained the company town were not exempt because their jobs were not incidental to the farm's primary agricultural activities. Waialua Agricultural Co., at 262-263, 75 S. Ct. at 724-725.
Waialua effectively narrowed the second prong of the test for secondary agricultural activity. For secondary agricultural activity to be exempt it had to be performed by a farmer or on a farm and it had to be incidental to the farming operations performed either by the farmer for whom it was done or on the farm where it was done. Wailalua also instructs courts to look at all the facts surrounding the operation. Id. at 264, 75 S. Ct. at 725. Further, Waialua sets forth an seven-factor test to determine whether the practices in question "relate to the farmer's own farming operations and not the farming operations of other and [are] subordinate to such operations." Id. at 263, 75 S. Ct. 725. The relevant factors are: (1) the size of the ordinary farming operations relative to the challenged activities; (2) the type of product resulting from the operation in question (are they agricultural commodities?); (3) the investment in the challenged operation relative the ordinary farming activities; (4) the time spent performing the challenged activity relative to ordinary farming; (5) the extent to which ordinary farmworkers engaged in the challenged activity; (6) the degree of separation by the employer between the various operations; and (7) the degree of industrialization. Id. at 264-65, 75 S. Ct. 725-26.
Here, defendant's sale of hard goods is not a separate operation but rather a service to its customers. Moreover, it constitutes a negligible portion of defendant's business and investment of defendant's resources relative to defendant's its farming operations. The products sold are either horticultural products or relate to horticulture. Finally, the same employees who perform agricultural work at the greenhouse perform work in relation to the hard goods. Accordingly, under the Waialua test, and the definition of agriculture set forth in Farmers Reservoir, the court concludes that work performed with respect to hard goods does not defeat the exemption.
3. Work Performed at the Van Wingerden Residence
Van Wingerden lives in a home located about 400 to 500 feet from the greenhouse. The house was built in 1977. Van Wingerden built an addition to the house in 1991 or early 1992. At various times, certain MAG employees would perform tasks at the Van Wingerden house or its perimeter. One employee in particular, Porfirio Ortiz ("Ortiz"), performed tasks at the house with relative frequency. Ortiz mowed the lawn and watered plants at the Van Wingerden house. On at least two occasions, Ortiz took chairs from around the swimming pool down into the basement of Wingerden's house. In addition, Ortiz cleaned up some of the construction after Van Wingerden built an addition to his house.
Although Van Wingerden alleges that part of mowing around the house was for pest control and to maintain the appearance of house where he sometimes entertained customers, the court finds that defendant did not establish a sufficient nexus between the upkeep of the Van Wingerden house and the defendant's farming operations. Nor did defendant establish that any farming operations took place at the Van Wingerden home except occasional meetings with clients and employees.
When asked whether employees other than Ortiz worked at the Van Wingerden house, Van Wingerden testified that John Zimmer would send laborers over. These laborers would sometimes wash Van Wingerden's car, in addition to performing other menial tasks. Van Wingerden kept three to four horses at the house from 1988 to 1991. These horses were not used in the greenhouse operation. Some employees helped bring in the hay for feeding the horses. Kevin Esker testified that he, along with another employee, would unload and store hay for the horses. In addition, the maintenance people from the greenhouse would perform mechanic work and/or routine maintenance on Van Wingerden's personal car and the personal car of his wife. Also, Van Wingerden's wife has a friend who works at the greenhouse who sometimes served as a babysitter for the Van Wingerdens in lieu of working at the greenhouse.
None of the activity above can be considered primary or secondary agriculture in its broadest definition within the meaning of the statute. Defendant offers little argument to justify why the exemption should apply to such activity except its assertion that "in a traditional view of farming operations, mowing the lawn at the farmhouse would  be an activity ordinarily expected to be performed by farmhands." The court agrees, however, under the FLSA, the farmhands would be entitled to overtime compensation for such activity if other overtime prerequisites were met. Moreover, the evidence in this case demonstrates that more than occasional lawnmowing was performed at the Van Wingerden home. The court thus finds that, because none of the activity described above qualifies as agriculture, by any definition, the plaintiffs performance of such tasks results in a loss of the exemption.
WHEREFORE, for the reasons stated in this memorandum opinion, plaintiffs are entitled to compensation at time and one-half for hours worked over forty during any workweek in which plaintiffs performed nonexempt work as defined herein. The parties are instructed to appear for a status hearing to discuss the issue of the determination of damages on May 15, 1997.
David H. Coar
United States District Judge
Dated: April 29, 1997