Mitchell v. Hausman

• Decision Date: 23 December 1958
• Docket Number: No. 17198.,17198.
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Joseph HAUSMAN, d/b/a Alice Meat Company, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F.2d 778 (1958)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Joseph HAUSMAN, d/b/a Alice Meat Company, Appellee.

No. 17198.

United States Court of Appeals Fifth Circuit.

December 23, 1958.

Jacob I. Karro, Atty., Stuart Rothman, Sol., Miss Bessie Margolin, Asst. Sol., Earl Street, Regional Atty., Dept. of Labor, Washington, D. C., for appellant.

E. G. Lloyd, Jr., Alice, Tex., for appellee.

Before TUTTLE, JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

The appellee, Joseph Hausman, is in the business of slaughtering livestock at Alice, Texas. Slaughtering is done for farmers, butchers and others, for which Hausman receives the hide and other inedible portions of the animals as his compensation. He also slaughters for his brother, Sam Hausman, and for this he receives an agreed sum per head. The appellee and his brother sell their hides to the same purchaser who takes delivery at the appellee's place of business, and over ninety per cent. of the hides are shipped outside the State of Texas. In 1953, an investigator from the United States Department of Labor called upon Hausman and told him that the hides were being shipped out of the state and, this being so, he was subject to the wage and hour provisions of the Fair Labor Standards Act, 29 U.S.C.A. §§ 206-207. The investigator also found among Hausman's employees a fifteen-year-old boy. The investigator told Hausman that this employment was a violation of the child labor provisions of the Act, 29 U.S.C.A. § 212, and the pertinent regulations, 29 C.F.R. 1958 Supp. 61. Hausman discharged the boy, paid some back wages and, for a time, complied with the Act. Later, however, he rehired the boy because, he said, the boy had a widowed mother. In January of 1956 another investigation was made and it was found that Hausman was not in compliance with the wage and hour provisions. Hausman claimed that he didn't ship anything out of the state and was not covered by the Act. By June 1956 Hausman was meeting the requirements except as to two of his five or six employees. On June 28, 1956, the Secretary of Labor commenced a suit to enjoin the appellee from violating the Act. At that time Hausman was not in full compliance. The case was tried on July 15, 1957, and the court found that Hausman had been in compliance with the Act for more than a year. The court found that while Hausman did not actually know or concern himself with the ultimate destination of the hides, the circumstances would justify the conclusion that he had reason to believe that they would be shipped out of the state.

The district court decided that Hausman's employees were engaged in the production of goods for commerce and hence subject to the provisions of the Act, but "that, on the whole picture, no injunction will issue at the present time." The district court states in summary its reasons for refusing an injunction in this language:

"Here there is no contention that defendant has violated the Act or regulations for more than one year prior to trial. While there is room for the assertion that his coming into compliance was after a second investigation, it is clear that at all times he contended, and believed, in good faith that his business was purely local as, indeed it is as to its slaughtering activities. The fact that the hides enter into commerce after local delivery is not due to collusion or subterfuge on defendant\'s part. While the investigator did tell defendant that the hides were in commerce and expressed the usual investigator\'s opinion that he was covered by the Act, defendant hardly can be blamed for contending to the contrary. His attitude upon the trial was that if this court should hold that his business comes under the Act, he gladly will comply in all respects. I believe he is in good faith in this attitude."

It was held in 1942 that the removing as a part of a slaughtering process, of non-edible meat products including hides, which were shipped in interstate commerce, was a production of goods for commerce. Walling v. Peoples Packing Co., 10 Cir., 1942, 132 F.2d 236, certiorari denied 318 U.S. 774, 63 S.Ct. 831, 87 L. Ed. 1144. A similar conclusion was reached by the District Court for the Western District of Louisiana in 1954. Tilbury v. Rogers, 123 F.Supp. 109. This decision was affirmed by this court in 1955, Tilbury v. Mitchell, 220 F.2d 757. Certiorari was denied on October 10, 1955. Tilbury v. Rogers, 350 U.S. 839, 76 S.Ct. 77, 100 L.Ed. 748. Cf. National Labor Relations Board v. Dallas City Packing Co., 5...