Hodgson v. Okada, 71-1381

• Decision Date: 07 February 1973
• Docket Number: 72-1043.,No. 71-1381,71-1381
• Citation: 472 F.2d 965
• Parties: James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. Paul OKADA, and Okada Farms, Inc., a corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

472 F.2d 965 (1973)

James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. Paul OKADA, and Okada Farms, Inc., a corporation, Defendants-Appellants.

Nos. 71-1381, 72-1043.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 11, 1972.

Decided February 7, 1973.

Ronald Whiting, U. S. Dept. of Labor, Washington, D. C. (Richard F. Schubert, Sol. of Labor, Carin Ann Clauss, Associate Sol., Harper Barnes, Regional Sol., Donald S. Shire and Judith Bleich Kahn, U. S. Dept. of Labor, Washington, D. C., on the brief), for plaintiff-appellee.

Eugene H. Tepley, Denver, Colo., for defendants-appellants.

Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

The Secretary of Labor brought this action under § 17 of the Fair Labor Standards Act as amended 29 U.S.C. § 201 et seq. to enjoin Paul Okada and Okada Farms Incorporated (Okadas) from violating the minimum wage, recordkeeping and shipping provisions, and restraining them from withholding $1,279.90 in unpaid wages. The Court, in a bifurcated trial, held that the Okadas and Ramon Medelez, the crew leader, were joint employers of the farm laborers and enjoined the Okadas from violating the Act, 326 F.Supp. 514. In the second trial the Court restrained the Okadas from withholding unpaid wages from July 21, 1970 through August 20, 1970.

The Okadas operate a farm in Adams County, Colorado on 52 acres of land owned by them and 200 acres leased by them. They grow cucumbers transported in interstate commerce under an agreement with the Henderson Pickle Company (HPC) which is owned and operated by an uncle of Paul Okada. HPC furnishes the Okadas with the seed and arranges for harvesting and hauling the cucumbers to its plant. The cost of the seed and harvesting is debited to the Okadas' account. HPC hired Ramon Medelez and his crew to harvest the cucumbers. Ramon received $1.25 per c. w. t. for the merchantable crop. He paid his crew 50¢ per sack or $1.00 per c. w. t. The amount paid to Ramon by HPC was debited to the Okadas' account.

The Okadas were investigated three times prior to February of 1967. Each investigation disclosed violations of the Act. Paul Okada was advised to keep proper records and to pay the minimum wages to the cucumber pickers as prescribed under the Act. Paul Okada relied on HPC to keep the records. The investigators gave the Okadas a copy of the Fair Labor Standards Act and a pamphlet entitled "Hired Farm Workers".

The migrant workers were recruited by Frank Pena, labor recruiter for HPC and Great Western Sugar Company. Pena assigned Ramon Medelez and his family crew to the Okadas. The crew lived in quarters on lands leased by the Okadas. The quarters were maintained by HPC. Frank Pena talked to Ramon only once during the month he worked for the Okadas. This conversation occurred on the first day of work. Pena instructed Ramon how to harvest the cucumbers. Felipe Guyton, an HPC employee, and Pena were required by HPC to visit the farms twice a week. However, they did not give Ramon any further instructions. Paul Okada's father, Eddie, worked in the cucumber fields almost daily. He instructed Ramon's crew how to perform their work. Eddie Okada directed Ramon not to rehire certain lazy workers and he told Pedro Medelez that if he didn't want to work he could leave. Pedro stayed on the job for a week and then left.

The Okadas contend that: (1) the trial court lacked jurisdiction to hear the case; (2) an injunction was not warranted; (3) they were not employers of the migrant workers and Ramon was an independent contractor; and (4) the Court made an arbitrary money award.

The Okadas allege that the trial court did not have jurisdiction to hear the case because of two statutory exemptions. Section 213(a) (6) (A) provides that the title does not apply to any employee employed in agriculture:

". . . if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor, . . ."

Section 203(e)(1) states that "employee" does not include:

"any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer\'s immediate family, . . ."

The Okadas allege that they met both exemptions.

At the pre-trial conference Paul Okada testified that a different crew worked at the farm in 1969, the year preceding the calendar quarter. The Court stated that the problem disposed of itself in that the parties had agreed in a Pre-trial Stipulation and Order that during 1969 crews worked on Okadas' crops and that if that time were included the Okadas would have used more than 500 man-days of agricultural labor. Not only did the Okadas fail to affirmatively plead these exemptions in their answer as required by Rule 8(c), Fed. R.Civ.P., but also they were not raised as issues for consideration in the pretrial order as required by Rule 16, Fed. R.Civ.P.

Section 203(e) (1) applies to workers related to the employer claiming the exemption. The Okadas are claiming the exemption. Ramon is not a party to this suit. Therefore the exemption does not apply because the crew members are not the Okadas' immediate family.

The Okadas contend that the trial court erred in granting an injunction because an injunction was not requested in the pre-trial conference. Also, the Pre-trial Stipulation and Order did not refer to injunctive relief. Accordingly, the Okadas contend that the injunction was beyond the scope of the issues to be tried, wholly unnecessary and an abuse of the Court's discretion. This argument has no merit. There was no agreement between the parties which would deprive the Court of its inherent power to issue an injunction if the Okadas were held to have violated the Act. The only effective future relief would be an injunction against further violations of the Act. Furthermore, the Secretary's complaint prayed for injunctive relief. The facts clearly warranted the trial court's grant of injunctive relief in view of repeated violations of the Act by the Okadas. Hodgson v. Humphries, 454 F.2d 1279 (10th Cir. 1972).

The Okadas allege that the evidence does not sustain the finding that they were employers of the farm workers. They contend that they did not exercise regular supervision over the workers constituting control and that the only employer of the workers was Ramon. They also allege that if Ramon was an employer, they cannot be employers too. Inasmuch as HPC hired Ramon, the Okadas allege that they did not have to comply with the Act. The Okadas rely on the facts that: (1) three crew members stated in depositions that Eddie Okada spoke to them only once or twice in four weeks; (2) Eddie did not speak to Ramon because Ramon did not speak English; (3) one crew worker said Pena gave him instructions; (4) Eddie Okada...