Hodgson v. Griffin and Brand of McAllen, Inc.

• Decision Date: 09 March 1973
• Docket Number: No. 72-2441. Summary Calendar.,72-2441. Summary Calendar.
• Citation: 471 F.2d 235
• Parties: James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. GRIFFIN AND BRAND OF McALLEN, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

471 F.2d 235 (1973)

James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. GRIFFIN AND BRAND OF McALLEN, INC., Defendant-Appellant.

No. 72-2441. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 4, 1973.

Rehearing and Rehearing Denied March 9, 1973.

H. Hollis Rankin, III, H.H. Rankin, Jr., McAllen, Tex., for defendant-appellant.

Richard F. Schubert, Sol., U. S. Dept. of Labor, Washington, D. C., M.J. Parmenter, Regional Sol., U. S. Dept. of Labor, Dallas, Tex., Truett Bean, Carin Ann Clauss, Donald S. Shire, Attys., U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 9, 1973.

THORNBERRY, Circuit Judge:

The Secretary of Labor brought this suit under 29 U.S.C.A. § 217 to enjoin Griffin and Brand of McAllen, Inc. from violating the minimum wage, record keeping, and child labor provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The district court after trial without a jury found that Griffin and Brand had violated the Act and issued an appropriate injunction. Griffin and Brand appeals and we affirm.

The district court described appellant's method of doing business and relationship to the harvest workers in part as follows:

"Defendant Griffin and Brand of McAllen, Inc. is engaged in the cultivation, harvesting, handling, packaging and marketing of fruit and vegetables in various counties of South Texas, including Hidalgo County. Defendant owns and operates a large fruit and vegetable warehouse and packing establishment in McAllen, Texas, and conducts farming operations. There is no question, and defendant admits, that the farm produce handled by defendant is transported, offered for sale, and shipped in interstate commerce.

"Defendant Griffin and Brand engages in harvesting operations for onions, carrots, tomatoes, peppers and other crops. An efficient harvest naturally necessitates a great amount of manual labor, and the required labor force is drawn in large measure from both resident and migrant Mexican-American farm workers. Griffin and Brand, as do all others similarly engaged, obtains the services of these farm workers by dealing with so-called `crew leaders.' `Crew leaders' are aware of various locations at which these workers congregate or reside, and hence are able to secure them in substantial numbers on short notice. After a `crew leader' contacts the laborers, he then transports them to the work site. A `crew leader' usually only furnishes his truck or trucks, and he uses his truck or trucks not only to take the farm hands to the fields and back to their homes, but also uses the same to haul the harvest from the field to the shed.

"Griffin and Brand secures its necessary labor as follows: `Crew leaders' in search of jobs contact an agent of Griffin and Brand. If there is work available on a certain day, Griffin and Brand's agent will tell the `crew leaders' when and where the labor is needed. When the `crew leaders' arrive at the job site with the harvesting crew, an agent of Griffin and Brand will tell each particular `crew leader' in what area he is to deploy his crew.

"The `crew leaders' are usually paid by defendant for the labor supplied with a weekly lump sum, often paid in advance. The `crew leader' himself, not defendant, is responsible for meting out the earnings of the individual laborers. The `crew leaders' are paid by what is known as a `piece rate,' which means that they are paid so much per basket picked. The `piece rate' varies with the size of the particular vegetable or fruit being harvested. The `crew leader,' who is paid on this unit basis, in turn pays the laborers on a lower . . . basis, keeping the difference for himself.

* * * * *

"The evidence shows that Griffin and Brand, at the suggestion of the Government, kept social security records on behalf of the harvest hands employed to harvest crops. Before the pay check was given to the `crew leaders,' Griffin and Brand deducted the social security due from it. Forms were provided the `crew leaders' by Griffin and Brand, on which they were to keep track of the number of baskets picked. The forms were used by defendant's bookkeeper to determine the amount of social security for each worker. This money, which included both the share of the harvest hand and the `crew leader,' was then deducted and placed in an escrow account. Weekly reports were sent by Griffin and Brand's bookkeeper to an outside bookkeeper, who was retained to do the `crew leader's' social security computations. This arrangement was found to be necessary, as the average `crew leader' has little or no formal education and is totally incapable of seeing that social security is paid in behalf of the harvesting crews. At year's end, defendant's bookkeeper, on the basis of the outside bookkeeper's computations, paid the Government that requisite social security monies from the escrow account, paid the outside bookkeeper, and then refunded any remaining balance to the people designated by the bookkeeper as due a refund. The check paying the social security to the Internal Revenue Service was a check drawn on defendant, with a separate check for each `crew leader.' The `crew leaders' signed the social security return, not the check."

Further, testimony indicated that appellant, through its field supervisors, exercises considerable control over the crew leaders and the harvest workers. Red Martin, the head field supervisor tells the crew leaders at what hour to begin work and assigns them a certain number of rows or patches to harvest each day according to the number of members in the crew. Martin tells the crew leaders the rate at which they should pay the harvest workers and whether to pay an hourly wage or a piece rate. Martin and other field supervisors oversee the harvest work in the fields each day and give instructions to the crew leaders, who pass them on to the harvest workers.

On these facts the district court concluded appellant Griffin and Brand was an employer, or a joint employer, of the harvest crews within the meaning of the Fair Labor Standards Act, and enjoined it from violating the child labor, minimum wage, and record keeping provisions of the Act in the future. Appellant does not dispute that the...