Budd v. Mitchell
Decision Date | 15 April 1955 |
Docket Number | 15071.,No. 15016,15016 |
Citation | 221 F.2d 406 |
Parties | Joseph T. BUDD, Jr., and Florence W. Budd, co-partners, doing business as J. T. Budd, Jr. and Company, Appellants, v. James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellee. KING EDWARD TOBACCO COMPANY OF FLORIDA and May Tobacco Company, Intervenor, Appellants, v. James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Julius F. Parker, Caldwell, Parker, Foster & Wigginton, Tallahassee, Fla., for appellants Joseph T. Budd, Jr., and Florence W. Budd.
Harold C. Nystrom, Acting Asst. Solicitor Dept. of Labor, Bessie Margolin, Asst. Solicitor, Washington, D. C., Stuart Rothman, Solicitor, Joseph M. Stone, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Atty., Birmingham, Ala., for appellee.
Edw. McCarthy, Jacksonville, Fla., Richard J. Gardner, Quincy, Fla., Mc- Carthy, Lane & Adams, Jacksonville, Fla., Gardner and Lines, Quincy, Fla., of counsel, for King Edward Tobacco Co. of Florida.
Poole, Shroyer & Denbo, Milton C. Denbo and Richard O. Michael, Washington, D. C., for May Tobacco Co.
Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.
The opinion of the district Court in these cases is reported at 114 F.Supp. 865. The Budd case was the action first brought by the Secretary of Labor under Section 17 of the Fair Labor Standards Act1 to enjoin the Budds from violating the minimum wage and record keeping provisions of the Act. At the conclusion of a pre-trial conference on that case, the district court was of the opinion that the Budd company operation was in violation of the Act, but, in order to avoid putting the small farmers, whose tobacco was processed by the Budds, at an economic disadvantage to the operators who processed their own tobacco exclusively, the court insisted that before decision in the Budd case, the issues be broadened to include such large operations. Accordingly, suit was brought against the King Edward Company and the May Company intervened.
The cases involve the definition of "Agriculture" under Title 29 U.S.C.A. § 203(f),2 the agricultural exemptions under Section 213(a), clauses 6 and 10,3 and incidentally the exemption from the maximum hours provision under Section 207(c).4
All of appellant's processing operations are in connection with U. S. Type 62 Sumatra tobacco, which is a leaf tobacco grown and used entirely for cigar wrappers. This type of tobacco is grown exclusively in three counties in North Florida, and two counties in South Georgia contiguous to two of said Florida counties. Most of such tobacco is grown within an airline radius of thirty miles of Quincy, the County Seat of Gadsden County, Florida.
We quote from the opinion of the district court:
Durkin v. Budd, D.C., 114 F.Supp. 865, 866-867.
After such processing, this type tobacco falls into eight main classifications, and none of those classifications can be determined prior to the processing. Primarily, because it cannot be graded until it has been processed, there is no market at an earlier stage for this type tobacco. The market variation dependent upon grading is considerable, ranging from a high of approximately $2.40 per pound down to as low as $.40 per pound.
Some 300 farmers in the Quincy area grow this type of tobacco with about 80% growing and harvesting less than 25 acres per year, and a majority producing only 1½ to 10 acres per year. As has been noted, the natural heating, fermentation, and curing of this tobacco requires bulks of more than 3000 lbs. of tobacco. The small farmers do not grow the tobacco in such quantities, and hence, cannot process their own tobacco. For the year 1950, some 52 of such small farmers cultivating a total of 263 acres had their tobacco processed by the Budd Company. That company grows no tobacco of its own but processes tobacco grown by others.
During 1950, the King Edward Tobacco Company cultivated 206 acres, and the May Company 90 acres of this type tobacco, and those two companies processed their own tobacco, and did not handle the tobacco of any other person at the packing houses here involved. Those packing houses are located in the town of Quincy, which, according to the 1950 census had a population of 6,586, and the Budds' packing house is also in that town. At the height of the packing season, May employs approximately 70 employees in its packing plant, King Edward some 120 employees, and Budd approximately 108 employees. The majority of all such employees work also on the farms when not engaged in work at the packing plants. Other pertinent facts appear in the opinion of the district court.
King Edward and May claim that their employees are exempt from the provisions of the Act under Section 213(a) (6) because they are employed in agriculture. As to King Edward and May, the appellee concedes that:
5
The district court held "that upon the record in this case the farming exemption ends when the tobacco reaches the receiving platform of the packing house * * *." 114 F.Supp. 868. We cannot agree. It seems clear to us that a farmer cannot function without a market, that everything done by these farmers was essential for the marketing of their crops, and that the work of their packing house employees, in the preparation for market of the leaf grown exclusively on their farms, constitutes "practices performed by a farmer as an incident to or in conjunction with such farming operations, including preparation for market," within the meaning of Section 203(f)6
All of the appellants claim that their employees are exempt from the Act by virtue of Section 213(a) (10) see footnote 3, supra, because their operations are one of those enumerated in that section and necessary for the marketing of their crops, and because the Administrator exceeded his authority in excluding from the "area of production", "any city, town or urban place of 2,500 or greater population." Appellee concedes, as it must, that this Circuit has already held that the Administrator did so exceed his authority.7 Appellee insists, however, that after it reached the packing house, the tobacco was no longer an "agricultural or horticultural commodity", and that the processing operation was not one of those enumerated in the section. The legislative history of Section 213(a) (10) makes clear that its primary purpose was to prevent discrimination against the small farmer.8 When it is considered that admittedly the processing was essential for the marketing of the tobacco, again it seems clear to us that the employees of all of the appellants are exempt under Section 213(a) (10). Since we are of the opinion that the employees are exempt under Section 213(a) (10), we do not feel called upon to discuss the respective fields of operation of the total exemption in that section and of the partial exemption in Section 207(c) further than to say that we agree with the Ninth Circuit that such exemptions overlap and are not alternative or mutually exclusive. Waialua Agricultural Co. v. Maneja, 9 Cir., 178 F.2d 603, 609.9
Appellee insists, however, that Section 213(a) (10) is inoperative until the Administrator makes a valid definition of the area of production. That much may be granted, but in a case like this, otherwise within the exemption, and which might likely fall with a valid definition of the area of production, the appellee is in no position to...
To continue reading
Request your trial-
Borden Company v. Freeman
...from the source of 95% of its commodities." Id. at 476, 76 S.Ct. at 530. The United States Court of Appeals for the Fifth Circuit, 221 F.2d 406, had declared this definition invalid on the grounds that "area" contemplated mileage boundaries only and did not provide for "any qualification by......
-
Mitchell v. Budd
...these employees are exempt from the Act. The District Court ruled against the respondents. 114 F.Supp. 865. The Court of Appeals reversed. 221 F.2d 406. We granted certiorari 350 U.S. 859, 76 S.Ct. 103, because of the importance of the problems presented and of the apparent conflicts betwee......
-
Dionne v. Blier
...to the preparation of potatoes for market. Under the Federal Minimum Wage Law, the U.S. Court of Appeals, 5th Circuit, in Budd v. Mitchell (1955), 221 F.2d 406, held that the processing by the employees of the employer's tobacco in his packing house was incident to farming. See Anno.Workmen......