Coleman v. Jiffy June Farms, Inc.

• Decision Date: 28 December 1970
• Docket Number: Civ. A. No. 5337-69-P,5342-69-P.
• Citation: 324 F. Supp. 664
• Parties: Arthur COLEMAN et al., Plaintiffs, v. JIFFY JUNE FARMS, INC., et al., Defendants. George P. SHULTZ, etc., Plaintiffs, v. JIFFY JUNE FARMS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

324 F. Supp. 664

Arthur COLEMAN et al., Plaintiffs, v. JIFFY JUNE FARMS, INC., et al., Defendants.

George P. SHULTZ, etc., Plaintiffs, v. JIFFY JUNE FARMS, INC., et al., Defendants.

Civ. A. Nos. 5337-69-P, 5342-69-P.

United States District Court, S. D. Alabama, S. D.

December 28, 1970.

Hayden Rector, Mobile, Ala., Beverley R. Worrell, Regional Sol., U.S. Dept. of Labor, Atlanta, Ga., for plaintiffs.

Willis C. Darby, Jr., Mobile, Ala., for defendants.

OPINION AND ORDER FINDINGS OF FACT

PITTMAN, District Judge.

This is a consolidation of actions, in one case by employees and former employees of the defendants, and in the other case, by the Department of Labor, each seeking overtime pay allegedly due for past services, and an injunction against future violation of Title 29 U.S. C.A. Section 207(a) (1). There is no issue presented with reference to the number of hours, the rates of pay, or that all persons claimed to be due overtime were employees of defendants during the relevant periods of time. The parties have informed the court that they can agree on the amount of overtime due should the court hold that any employees are entitled to overtime pay. The plaintiffs, Coleman, et al., have raised the additional question of liquidated damages and a reasonable attorney's fee. The issue before the court is whether or not the defendants, or either of them, are exempted from the provisions of the Fair Labor Standards Act by virtue of Title 29 U.S.C.A. Section 213(b) (1).

Defendants, in their pretrial response, incorporated within the court's pretrial order, have admitted that defendants, Jiffy June Farms, Inc. and Jiffy Poultry, Inc., are corporations having a place of business in Mobile County, Alabama, and the defendant, Robert A. Trainor, Jr., resides in Mobile County, Alabama. All are within the Southern District of Alabama. The defendants have continuously, since September 1, 1966, engaged in ordering, receiving, processing, delivering, performing related clerical functions, and otherwise handling or working on poultry, eggs and oysters that have been moved in, or produced for, commerce.

At the trial of the case, plaintiffs offered the answers to requests for admissions and the interrogatories propounded by the plaintiffs, the answers thereto by the defendants, and rested. The defendants established that Jiffy June Farms, Inc. is a processing establishment whose principal business is processing chickens, turkeys and eggs. All Jiffy June Farms' sales of finished produce are made to the defendant Jiffy Poultry, Inc. Offal and wastes are sold elsewhere.

Jiffy Poultry, Inc. is a sales and distributing concern. In addition to selling and distributing products of Jiffy June Farms, they make additional purchases from other processors and sell and deliver those products. The ownership of both corporate defendants is substantially the same. The period of time relevant to this suit is April, 1966 to April, 1969 for those employees who have severed their employment with the defendants, and from April, 1966 to the present for those who have continued to be employed by the defendants.

All the processing by the defendant Jiffy June Farms is done in Alabama. The majority of the sales and deliveries by the defendant Jiffy Poultry are made in Alabama. However, during April, 1966, and until April, 1969, the defendant Jiffy Poultry regularly, sometimes two or three times a week, and in most weeks of each month, made small sales and deliveries to South Flomaton, Florida, a rural community on the Alabama-Florida line.

On those deliveries which included the Florida deliveries, the truck usually had deliveries in Alabama before reaching Florida, and/or deliveries again in Alabama after reaching Florida. On occasion, a truck might take a full load to Florida, but, generally, the delivery was a small portion of a truckload. From the evidence, it appears that all, or substantially all, deliveries in the State of Florida were made to South Flomaton, Florida. The deliveries in Florida constitute .23% of all deliveries in the course of defendants' business. It should be noted at this time that defendant employs 67 driver-loaders among whom this infinitesimal interstate traffic is allegedly divided.

The 67 drivers for Jiffy Poultry also served as loaders. All drivers participated in the loading of all trucks. While a particular driver might be ordered to drive a particular truck, that same driver would have assisted in the loading of other trucks. Jiffy Poultry employed no full-time loaders without driving duties. The usual procedure was for invoices representing a load for a particular truck to be given to a driver who would arrange the invoices in a reverse order of consecutive deliveries. The trucks would be loaded with poultry being loaded from the back forward. If the load was mixed, eggs would be loaded to the rear of the truck. The loading was done in such a manner as to minimize shifting and harmful effects on the produce.

The defendant did not operate regular daily or weekly route deliveries, but routes would be organized to minimize travel and according to the most economical make-up of truck loads as dictated by the flow of sales orders. Over a period of time customer orders developed in such a manner that a pattern was discernable. However, no regular truck routes such as those operated by buses or trains were established. The drivers were not assigned a particular truck, nor to particular routes, but would receive their truck and route assignment on the day the trucks left Jiffy Poultry.

Both defendants made out-of-state purchases, but deliveries to Alabama from other states were made by other carriers. Jiffy June Farms purchased fiberboard boxes from International Paper Company which they shipped from South Carolina and Florida to a warehouse in Mobile, Alabama. At that point the defendants' drivers would pick up the boxes and deliver them to the defendants.

The defendant Jiffy Poultry purchased chickens and turkeys from outof-state. These were delivered by the sellers, in most instances, to cold storage facilities leased by Jiffy Poultry at the Alabama State Docks. On occasion, Jiffy Poultry would also deliver other products for storage in these facilities, and would pick up products stored there for delivery to other places. Jiffy Poultry has made regular, dockside sales to ships in Mobile for use aboard ship while at sea, and, possibly, for delivery in foreign countries. The evidence is insufficient to determine the quantities of these commodities.

The defendants' employees in 1966, and for the period of time in question, voted in a proper election to be represented by a union. Subsequently, during bargaining with the defendants, the union representative expressed the opinion to the defendants that the employees in question, truck drivers, were not within Section 207(a) (1) of the Fair Labor Standards Act (FLSA) requiring overtime pay. The bargaining agreement (Defendants' Exhibit 10) provided that these employees were not to receive overtime. Thereafter, the employee-union members became dissatisfied with their failure to receive overtime pay. A grievance hearing was had, and it was agreed with the defendants that senior employees would be given all time possible over forty hours per week in order to increase their earnings.

Some of the employees were still dissatisfied and took their problems to the Department of Labor. The Department found that some employees were exempt and some were not. The Department of Labor was put on notice by these employees on or shortly before June, 1967. These two suits were filed in January, 1969. The defendants have raised the defense of laches to the Department's suit. The plaintiffs, in rebuttal, called one of the plaintiffs, Arthur Coleman, as a witness. Coleman's testimony was, in substance, similar to that offered by the defendants except that his testimony tended to indicate greater regularity in the various routes operated by the defendants.

CONCLUSIONS OF LAW

There is no dispute as to the applicable law except as to its pertinency to the facts in the case at bar. Jiffy Poultry, Inc. admits that it employed the employees for whom overtime compensation is sought, and that each employee was subject to the Fair Labor Standards Act. Jiffy Poultry contends, however, that each employee for whom overtime compensation is sought is exempt from the overtime provisions of FLSA.

"Under the Motor Carriers Act of 1935 the Interstate Commerce Commission was accorded the power to `establish reasonable requirements with respect to * * * qualifications and maximum hours of service of employees, and safety of operation and equipment' of common carriers by motor vehicle. 49 U.S.C.A. § 304(a) (1)1

1 These functions of the I.C.C. were transferred to the Secretary of Transportation. Title 49 U.S.C.A. 1655(e) (6) (C).

Three years later, when the Fair Labor Standards Act (FLSA) was adopted, Congress expressly provided that overtime provisions of the Act2

2 The pertinent section of the FLSA is 29 U.S.C.A. § 207(a) (1): `Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.'

`shall not apply with respect to * * * any employee with respect to whom the Interstate Commerce Commission (now the Secretary of Transportation) has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 304 of Title 49' 29 U.S.C.A. § 213(b) (1) (1965).

In defining the interrelation between these statutory provisions, the Supreme

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