Gordon v. Paducah Ice Mfg. Co.

• Decision Date: 15 November 1941
• Docket Number: No. 78.,78.
• Citation: 41 F. Supp. 980
• Parties: GORDON v. PADUCAH ICE MFG. CO.
• Court: U.S. District Court — Western District of Kentucky

41 F. Supp. 980

GORDON v. PADUCAH ICE MFG. CO.

No. 78.

District Court, W. D. Kentucky, Paducah Division.

November 15, 1941.

COPYRIGHT MATERIAL OMITTED

John D. Driskill and Albert Karnes, both of Paducah, Ky., for plaintiffs.

Wheeler & Shelbourne, of Paducah, Ky., for defendant.

Gerard D. Reilly, Sol., and Irving J. Levy, Asst. Sol., both of Washington, D. C., and Charles H. Livengood, Jr., Regional Atty., of Nashville, Tenn., for administrator as amicus curiae.

MILLER, District Judge.

This action was filed by the plaintiff Cecil Gordon as an employee of the defendant Paducah Ice Manufacturing Company to recover for himself and for other employees of the defendant alleged to be similarly situated unpaid wages alleged to be due them under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., together with liquidated damages and a reasonable attorney's fee. The defendant denies that the plaintiffs were engaged in the production of goods for commerce, and further claims that if they were engaged in the production of goods for commerce they were nevertheless exempt from the provisions of the Act by Section 13 thereof, and that even if they were not exempt they were nevertheless paid the full amount required by Sections 6 and 7 of the Act. The case was heard by the Court without a jury on the single question of liability on the part of the defendant, it being agreed the the question of the amount of liability with respect to each employee, if it was found that liability did exist, would be determined later by supplemental proceedings. The Administrator of the Wage and Hour Division of the United States Department of Labor requested permission to file a brief as amicus curiae which permission was granted, and such brief has been filed.

Findings of Fact.

The defendant Paducah Ice Manufacturing Company is a Kentucky corporation with its principal place of business in Paducah, McCracken County, Kentucky, and is engaged in the manufacture and sale of ice, both wholesale and retail. During the strawberry picking season in Western Kentucky it sold large quantities of ice to Fruit Growers Express Company, Railway Express Company and Illinois Central Railroad Company, for the icing of refrigerator cars which carried strawberries from Paducah, Kentucky, to many and distant points in other states. The plaintiffs were employees of the defendant and performed the necessary labor in icing the refrigerator cars, which was a part of defendant's duty, pursuant to its contract with said companies, in connection with its sale of the ice to these companies.

Prior to 1915 there was but a relatively small amount of strawberries grown in McCracken County. In 1915 berry growers organized a co-operative association known as McCracken County Strawberry Growers' Association. Thereafter the growing and shipping of strawberries in McCracken County and nearby counties in Western Kentucky materially increased until it has reached the point where during one season approximately 900 cars were marketed. The chief contributing factor in this development was the investment by the defendant company in the construction of an ice plant and a loading ramp near the Union Station in Paducah on a spur track that connected with the Illinois Central Railroad. This location was not a suitable place for the retail distribution of ice, but was so located for the purpose of facilitating the delivery of strawberries by the growers and the shipment of them in the refrigerator cars referred to. The general practice was to place a refrigerator car on the spur track beside the platform and loading ramp of the defendant. The platform was at a proximate level with the floor of the refrigerator car, while the loading ramp was at a proximate level with the top of the refrigerator car. Several hours before the delivery of the strawberries to the platform the car would be pre-cooled by the icing operation hereinafter described, which would reduce its inside temperature from approximately 80 degrees to approximately 42 degrees. Strawberries would be trucked by the grower from the field to the platform and placed on the platform in crates containing 24 small wooden boxes. After being inspected by the Federal Government the crates of strawberries would be stored in the refrigerator car through the side door. The refrigerator car had compartments at each end known as bumpers which were filled with ice through an opening in the top. This ice was supplied by the defendant by being placed upon the ramp and moved by an employee along the ramp to the position of the bumper to which point the employee would put the ice in the bumper. The ice was in blocks of 300 pounds and after these large blocks had largely filled the bumper compartment other blocks of ice would be broken into small parts and poured into the bumper so as to complete the filling. The defendant employed more than ten employees in the performance of these icing operations but its employees did not in any way handle the loading of the strawberries into the car, which work was performed by employees of the cooperative association. After a car was loaded it would be removed by the Railroad Company to a point nearby where it would be allowed to remain for approximately twelve hours, sometimes longer, during which time the field heat would be removed from the strawberries therein by means of a fan which blew the cold air from the ice over the berries and throughout the car. The car would then be re-iced and transported to its point of destination. In most instances it was necessary for the car to be again iced in another State before it reached its final destination. There were no other cold storage facilities or such icing facilities as were furnished by the defendant, in Western Kentucky, and such car icing facilities so furnished by the defendant were essential to the development of strawberry growing in Western Kentucky. Strawberries could not be successfully shipped by truck except for short distances from the point where picked. The strawberries shipped in the refrigerator cars would be successfully delivered to points as far West as Oregon and as far North as Canada.

The strawberries so shipped were grown on farms in the general vicinity of the defendant's plant in McCracken County, Kentucky, and in adjoining counties in Western Kentucky. Only about a third of the berries were grown within a radius of ten miles of Paducah. After the berries were picked in the field it was important because of the heat and their perishable nature that they be transported to the defendant's platform as quickly as possible and placed in a pre-cooled refrigerator car. The strawberry season in Western Kentucky extends over a period of about three weeks, beginning sometime between the latter part of April and the latter part of May. It was impossible to determine in advance the exact date when the season would begin and the berries could be picked or when the peak of the season would be reached, as this depended upon weather conditions during the Spring. Because of their perishable nature strawberries must be picked on the day when they mature into ripeness, which day can not be accurately determined in advance. In the year 1940 the strawberry picking season in Western Kentucky opened about May 20, 1940 and extended through about June 8, 1940.

The plaintiff Cecil Gordon was employed by the defendant on May 22, 1940, for the purpose of icing the refrigerator cars. He worked in this capacity through June 6, 1940. Other plaintiffs were likewise employed by the defendant during approximately the same period of time. Other men, who are not made parties to this action, were also employed by the defendant for this same purpose during the continuance of the strawberry picking season. At the start of the season the defendant gave out the information that it would employ men for the purpose of icing refrigerator cars. Many men applied for the employment. The defendant was not able to use all of the applicants and adopted the system of dividing the work, as there became need for such employment, among those men who were present and available. The work over a 24-hour period was divided into two shifts, one beginning at 6:00 a. m. and running through 6:00 p. m. and the other beginning at 6:00 p. m. and running through 6:00 a. m. If a refrigerator car was in the process of being iced when the shift would ordinarily terminate the men so employed at the time would continue with their work until the particular car was completely serviced. The foreman of the respective shifts would go on the job at 6:00 a. m. and 6:00 p. m. respectively, and as refrigerator cars were "spotted" by the Railroad Company beside the platform for the purpose of being pre-cooled or iced the foreman would select from those men present and wanting to work the number of men required to perform the work. When any man was employed he was required to sign a Workmen's Compensation card. When the icing of any particular car was completed the men employed in doing that work were released from further immediate labor by the defendant, but they would remain in the immediate vicinity of the platform available for work when and if another refrigerator car was spotted by the Railroad Company. The interval between the time when one car would be removed after being completely iced and another car would be spotted to take its place varied from about 15 minutes to two hours or more. The defendant company was unable to tell how long this period would be and usually received information from the Railroad Company regarding the spotting of a car just shortly before its arrival. The foreman told the men applying for this work that if they wanted the work it would be necessary for them to be present and available when a refrigerator car was spotted, and if a man was not present when the work began he was of course not put upon that particular job and another man assigned to...