Brennan v. Sugar Cane Growers Cooperative of Florida

• Decision Date: 11 January 1974
• Docket Number: No. 72-3409.,72-3409.
• Citation: 486 F.2d 1006
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. SUGAR CANE GROWERS COOPERATIVE OF FLORIDA and Robert Lee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

486 F.2d 1006 (1973)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. SUGAR CANE GROWERS COOPERATIVE OF FLORIDA and Robert Lee, Defendants-Appellees.

No. 72-3409.

United States Court of Appeals, Fifth Circuit.

October 25, 1973.

Rehearing Denied January 11, 1974.

Richard F. Schubert, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., U. S. Dept. of Labor, Edwin G. Salyers, Atty., Atlanta, Ga., Carin Ann Clauss, Associate Sol., Donald S. Shire, Atty., Anastasia T. Dunau, Dept. of Labor, Washington, D. C., for plaintiff-appellant.

John R. Beranek, West Palm Beach, Fla., for defendants-appellees.

Before BELL, GOLDBERG and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The Secretary of Labor appeals from an adverse decision in the district court, 346 F.Supp. 132, as to the applicability of the overtime provisions of the Fair Labor Standards Act, Title 29 U.S.C. Sec. 201 et seq. (FLSA), to certain of defendant's employees. The facts of the case are not in dispute.

The appellee Sugar Cane Growers Cooperative of Florida (Sugar Cane) employs West Indian field laborers for the harvesting of its sugar cane. The laborers enter this country under a joint program supervised by the Departments of Labor and Agriculture and the Jamaican government. Their residence in this country is temporary and is at all times confined to the labor camps which Sugar Cane is required to provide. Additional West Indians, admitted to the United States under the same program, are employed as camp cooks and attendants. Their jobs are limited to preparing the meals for the field laborers and maintaining the barracks and appurtenant facilities used by the workers. Sugar Cane operates four labor camps in Palm Beach County, Florida. One labor camp is adjacent to the sugar mill while the other three are strategically situated throughout the growing area.

Sugar Cane processes sugar cane at its own mill. Steam power, produced in the generating plant, or boiler room, is used in the processing. Forty percent of the steam so produced goes to the mill turbines, which do the processing, and sixty percent goes to three turbo-generators which produce electricity for the entire camp. After passing through the turbo-generators, the remaining "exhaust steam" from two generators is returned to the boiler room, but the exhaust steam from the third is piped to an adjacent plant, operated by Quaker Oats Company in the manufacture of furfural (a plastic base product). After using this steam in its production process, Quaker Oats then returns all but five to ten percent of it to Sugar Cane's boiler room through return pipes for further use. Quaker Oats is under contract to reimburse Sugar Cane for the amount of steam ultimately lost. Sugar Cane purchases a manufacturing by-product from Quaker Oats which is used as fuel for creating steam. Some bagasse generated by the processing of cane is carried from Sugar Cane's mill by conveyor to the Quaker Oats plant where it is processed into various chemical products. There is no physical connection between the two plants except for the system of steam pipes and conveyors. The steam diversion operation in no way affects the duties or hours worked of the boiler room employees. Their duties and hours would necessarily remain the same if the Quaker Oats plant ceased production.

The parties have stipulated that all the above mentioned employees are engaged "in the production of goods for commerce" and thus within the purview of Title 29 U.S.C. Sec. 207, which provides for the payment of wages to covered employees at time and one-half for hours worked beyond forty in one week, except for such employees as are within a specific exception to the FLSA. The parties stipulated also that the field laborers are exempt under § 13(b) (12),¹ and thus not subject to the overtime provisions.

What the Secretary questioned in the lower court and again challenges on appeal is exemption from overtime pay for the camp cooks and attendants and the boiler room employees. Specifically, the following findings of the district court are alleged as error: (1) that the cooks and attendants are exempt under § 13(b) (12), the agricultural exemption; (2) that the cooks are also exempt under § 13(b) (18),² the food service exemption; and (3) that the boiler room employees are exempt under Sec. 13(b) (15),³ the sugar cane processing exemption.

The Camp Cooks and Attendants

The Secretary first challenges the finding by the district court that the cooks and attendants, whose work is done exclusively at the labor camp facilities and never in the fields, are exempt from the overtime provision as "agricultural" workers. The term agriculture for purposes of the FLSA:

"includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities ... the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." Title 29 U.S.C. Sec. 203(f).

This statutory definition as construed by the Supreme Court embraces both a primary and secondary concept of agriculture:

"As can be readily seen this definition has two distinct branches. First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently (sic) to or in conjunction with `such\' farming operations." Farmers Reservoir & Irrigation Co. v. McComb, 1948, 337 U.S. 755, 762-763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1680.

If the duties of the camp cooks and attendants fall within the latter meaning of the term agriculture, the district court's finding that they fall within the agricultural exemption is due to be sustained.

The memorandum opinion of the lower court discussed the applicability to Sugar Cane's operations of a secondary meaning of agriculture, and concluded that the instant dispute was controlled by Wirtz v. Osceola Farms Co., 5 Cir. 1967, 372 F.2d 584. Both parties to this appeal concede that Osceola Farms is controlling, and cite it as support for their respective (and contrary) positions. There are substantial similarities between Osceola Farms and the present case which are helpful in—but do not entirely control—our consideration of the issues presented here.

Osceola Farms contracted individually with independent growers and employed laborers to harvest sugar cane from the fields of the growers. The cut cane was transported by Osceola to its mill, where it was processed into raw sugar. The distance to the mill from the fields where its employees harvested the sugar cane was in some instances as much as 20 miles but was generally less. Germane to this appeal is the Osceola Farms court's discussion of the agricultural exemption as applied to: (1) tractor drivers who moved the cane from the fields to the mill; (2) tractor drivers who transported the laborers from the mill to the fields and brought a midday meal to them in the fields; and (3) repairmen who worked on the agricultural equipment used in the fields, doing their work for the most part at the mill. The Secretary analogizes the position of Sugar Cane's cooks and attendants to that of the equipment repairmen in Osceola Farms, i. e. functioning in a supportive capacity to the actual farm laborers but located at an independent, removed facility. Osceola Farms held that the repairmen were not exempt as they did not satisfy the requirement in the secondary meaning of agriculture that incidental work be performed "on a farm". Sugar Cane argues to the contrary that its cooks and attendants are most similar to the drivers in Osceola Farms who transported first the workers, and later a midday meal, to the fields where the harvesting took place. These drivers were held to be exempt because the function they performed was necessary to the farming operation and terminated on the physical property constituting the "farm".

The court below determined that both the camp cooks and the attendants were exempt as within the secondary meaning of agriculture. With respect to their activity being "incident to" farming, the court said that "the preparation of food and maintenance of barracks must be viewed as incident to the total sugar processing and agricultural operation and a necessary adjunct to it, ..." On the question of whether or not the work of the cooks and attendants was also "on a farm", the lower court observed that the facilities were "located adjacent to and near the farmlands ..." and further pointed out that it considered as "most significant" the classification by the Secretary of Labor of all West Indian workers as "agricultural workers" for purposes of entry into this country.⁴

We first observe that activities such as those in question have never been classified as within the primary meaning of agriculture. Although Sugar Cane argues to the contrary such a classification has uniformally been rejected by the courts considering identical or similar support operations. Maneja v. Waialua Agricultural Co., 1955, 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040; Hodgson v. Ewing, 5 Cir. 1971, 451 F.2d 526; Wirtz v. Osceola Farms Co., supra. The Secretary does not dispute that the cooks' and attendants' work is "incident to or in...