Hearnsberger v. Gillespie, 20254.

Citation435 F.2d 926
Decision Date30 December 1970
Docket NumberNo. 20254.,20254.
PartiesBobby HEARNSBERGER, Appellant, v. L. E. "Cotton" GILLESPIE, d/b/a Eudora Livestock Auction Company, Inc., and Eudora Livestock Auction Company, Inc., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Silas H. Brewer, Jr., Youngdahl, Sizemore, Brewer, Forster & Uhlig, Little Rock, Ark., for appellant.

Sam Robinson, Little Rock, Ark., for appellees.

Peter G. Nash, Sol. of Labor, Bessie Margolin, Associate Sol., Carin Ann Clauss, Donald S. Shire, Anastasia T. Dunau, Attys., U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., for James D. Hodgson, Secretary of Labor, U. S. Dept. of Labor, as amicus curiae.

Before MATTHES, Chief Judge, LAY, Circuit Judge, and REGISTER, Chief District Judge.

REGISTER, Chief District Judge.

This action was brought by appellant Hearnsberger under Section 16(b) of the Fair Labor Standards Act1 to recover unpaid minimum wages, overtime compensation, liquidated damages and reasonable attorney's fees and costs.

Defendants denied that Hearnsberger was employed by each of them during the period in question, denied any liability to him under the Act, and asserted that during the time he had worked as alleged in the Complaint "he was an agricultural employee." Following trial the Court made certain findings which will be hereinafter referred to and entered judgment dismissing the complaint. From such judgment this appeal was taken. Pursuant to request of the Secretary of Labor (who is charged by statute with responsibility for the administration and enforcement of the Act), this Court permitted him to submit a brief as amicus curiae. We express our gratitude to the Secretary for his assistance.

During the period of time in question (March 3, 1967 until November 25, 1968) defendant L. E. "Cotton" Gillespie individually owned and operated a farm in Chicot County, Arkansas, where he primarily grazed his own cattle on an approximately 600-acre tract. The total area of the farm (or ranch) was 1677 acres. During the period in question Hearnsberger was the only permanent employee. Wheat was planted in the fall and this was grazed during the winter and early spring; in May or June, hay grazer or Sudan was planted and this was grazed into the summer. Hearnsberger supervised the planting of the wheat and Sudan grass, during which time he had the help of two or three "hands," and machinery. Otherwise he had the responsibility of looking after the cattle, "checking" them daily to see that they weren't sick, doctoring them if they were sick, and keeping up the fences. Gillespie furnished a truck, which he owned personally, to appellant for use in his employment. Appellant was paid a salary of $85 per week throughout the period of time in question.

During the same period of time Gillespie was the sole stockholder (except for single shares of stock owned by his wife, and bookkeeper, respectively) of defendant corporation, Eudora Livestock Auction Company, Inc., which owned and operated a cattle auction barn in Chicot County, Arkansas, in the vicinity of his farm. Some of the cattle sold at the auction barn were transported for sale from neighboring states, and some of the cattle sold there were transported out-of-state. Customers traveled from out-of-state to attend the sales conducted at the barn. The barn and equipment was substantial — the barn was 1000 feet long, was equipped with pens, scales, an auction ring, a loudspeaker system, a cafe, a business office, vehicles with shortwave radios, tractor and other necessary items. There were six to eight regular employees. Auctions were conducted Friday afternoon of each week, and continued into the evening if necessary to complete the sale.

The busiest workdays at the barn were Thursday, when cattle began to be received for sale, and Friday, the day of the auction. The regular employees at the barn cleaned up the barn on Monday, Tuesday and Wednesday of each week, and usually took some time off during those days. On Saturday there was work with some of the livestock that had been sold on Friday — such as hauling cattle out from the barn.

Hearnsberger testified that he worked an average of twelve hours a day, six days a week, throughout this period. His testimony was the only evidence submitted on behalf of the plaintiff. Gilmore Whittington, the supervisor and person in charge of the sale operations at the barn, testified that Hearnsberger often worked several hours (from two or three, to five hours) on Thursdays, helping pair cows and calves. He testified that on some Thursdays Hearnsberger's help was not needed "and he went about his business." Hearnsberger also testified that he would come to the barn "Usually about Friday at noon or a little after, and we would help sort cattle and help pen cattle and until the sale was over, and then we would check cattle and load cattle." Whittington testified that Hearnsberger worked at the barn two or three Fridays a month, and hauled some cattle from the barn two or three Saturdays a month. He testified that usually the work on Saturdays was completed by noon. During one six-week period of time, when there was nothing to do at the farm, Hearnsberger worked full-time at the barn on Thursdays and Fridays. His work at the barn during this time included unloading, sorting, penning, checking, branding, feeding, vaccinating, de-horning, tagging and loading cattle. However, his work was found to be unsatisfactory, and was discontinued. In substance, Mr. Whittington's testimony was corroborated by Mr. Gillespie.

During the first three days of each week Mr. Gillespie was away from the farm and barn a great deal, on matters incidental to the auction business. During those days, Hearnsberger was pretty much his own boss and during much of the year his duties did not require full-time service. He had quite a bit of free time, had the use of the truck for his own purposes, and did some work for himself.

During the period involved, Hearnsberger's $85 per week salary was paid by check from the auction company, and then charged to Gillespie personally. Many of the farm expenses were paid in similar manner, for purposes of convenience.

The trial court's judgment of dismissal was based in part upon its finding and ruling that "plaintiff was a regular employee on the cattle farm * * *" and that "plaintiff has failed to establish by a preponderance of the evidence that he was an employee of Eudora Livestock Auction Company." Appellant contends that such finding and ruling is a "fundamental error of law," compelling reversal, and asserts that "identification of plaintiff's `regular' employer, rather than analysis of plaintiff's work duties, was the court's erroneous touchstone for determining whether plaintiff was employed in agriculture."

Section 13 of the Act (29 U.S.C.A., Sec. 213, captioned "Exemptions") provides, in part:

"(a) The provisions of sections 206 and 207 (the minimum wage and overtime provisions) shall not apply with respect to * * * (6) any employee employed in agriculture * * *."

In Section 3(f) of the Act (29 U.S.C.A., Sec. 203(f)), "agriculture" is defined as follows:

"(f) `Agriculture\' 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 (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), 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."

While the trial court made no specific finding that appellant was within the exemption, it did find that he "was a regular employee on the cattle farm and was paid as such."

It is well established that the burden of proving an exemption from the Act rests upon the defendants. Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694; Mitchell v. Kroger Co., 248 F.2d 935 (8th Cir. 1957). Exemptions are to be narrowly construed against employers seeking to assert them. Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815; Gilreath v. Daniel Funeral Home, 421 F.2d 504, 508 (8th Cir. 1970). Exempt status will be limited to those situations that "plainly and unmistakably" come within the terms and spirit of Section 13 exemption provisions. Arnold v. Ben Kanowsky, 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393. While the record discloses that the major part of Hearnsberger's work involved his duties at the farm, defendant Gillespie's testimony establishes that appellant performed a significant and substantial amount of work at the auction barn almost every week throughout the period involved. Virtually all of appellant's activities at the barn were unrelated to the defendant's farm operations, and were clearly nonexempt. "The only activity as to livestock listed within the `primary' meaning of agriculture is `the raising of livestock.'" In Walling v. Friend, 156 F.2d 429, 432 (8th Cir. 1946), this Court stated, "Clearly defendants' (livestock auction) employees are not engaged in the raising of livestock, * *." Neither did such activities constitute agriculture in its secondary sense, in that they were not "practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." See Mitchell v. Hunt, 263 F.2d 913 (5th Cir. 1959); and Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762 and 763, 69 S.Ct. 1274, 93 L.Ed. 1672. In the latter case the Supreme Court specifically pointed out, 337 U.S., at page 762 et seq., 69 S.Ct., at page 1278, that the definition of agriculture in Sec. 3(f)...

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