Marshall v. Gulf & Western Industries, Inc., 76-3542
| Citation | 552 F.2d 124 |
| Decision Date | 12 May 1977 |
| Docket Number | No. 76-3542,76-3542 |
| Parties | 23 Wage & Hour Cas. (BN 248, 81 Lab.Cas. P 33,527 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. GULF & WESTERN INDUSTRIES, INC., Defendant-Appellant. Summary Calendar. * |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Theodore W. Herzog, Vero Beach, Fla., for defendant-appellant.
Carin Ann Clauss, Atty., Alfred G. Albert, Act. Solr. of Labor, Bobbye D. Spears, Reg. Solr., Jacob I. Karro, Rita L. Stotts, Attys., U. S. Dept. of Labor, Washington, D. C., for Secretary of Labor.
Appeal from the United States District Court for the Southern District of Florida.
Before GOLDBERG, CLARK and FAY, Circuit Judges.
Gulf & Western Industries, Inc., a Delaware corporation licensed to operate in Florida, appeals the district court's decision that it is liable for minimum and overtime wage deficiencies under the Fair Labor Standards Act. 29 U.S.C. § 201 et seq. The facts were not disputed and the case was decided on cross-motions for summary judgment. The trial court determined that Gulf & Western is not entitled to the "agriculture" exemption from minimum and overtime compensation requirements. 1 We affirm.
Gulf & Western operates two packing facilities in Broward County, Florida. In one its employees only process tomatoes, in the other, a broader range of vegetables. Gulf & Western does package some tomatoes in the former plant that are grown on its own farms, but it also handles tomatoes grown by other farming operations. The vegetable packing operation presents a more complex fact matrix. Commencing in 1959, Gulf & Western's wholly-owned subsidiary, Abaco Farms, Ltd., was engaged in farming in the Bahamas. According to Gulf & Western, a difficult political climate in the Bahamas following its receipt of limited autonomy from Great Britain in 1964, forced Abaco to abandon its farming operations. After a three year hiatus, Abaco entered into a contractual relation with a Bahamian corporation, Key & Sawyer Farms, Ltd. The contract provided that Abaco owned all crops planted, grown, and harvested on designated Bahamian property owned or leased by Key & Sawyer. Abaco agreed to market all produce with a "United States buyer," i. e., Gulf & Western, Abaco's parent corporation. Abaco as "owner" of the crop had control over the farming operations. However, the risk of price fluctuation on the United States market remained with Key & Sawyer.
The issue presented to this court is whether Gulf & Western's employees in its Broward County, Florida facilities are excluded from overtime and minimum wage mandates due to participation in "agriculture." 29 U.S.C. § 203(f) defines the breadth of this term's coverage:
"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.
The Supreme Court has compartmentalized this statutory definition into "primary agriculture" and "secondary." Activities that comprise primary agriculture are those that traditionally are considered agricultural: tillage, cultivation, growing, and harvesting. No argument is made that Gulf & Western is entitled to this type of exclusion from coverage. Secondary agriculture describes those practices "performed whether by a farmer or on a farm as an incident to or in conjunction with such (primary) farming operations." Farmers Res. & Irrig. Co. v. McComb, 337 U.S. 755, 762-63, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672 (1949).
We first turn to the claim that the Broward County facility in which only tomatoes are processed is entitled to the secondary agriculture exemption. If employees are engaged both in exempt and non-exempt work, the Fair Labor Standards Act applies to the entirety. Skipper v. Superior Dairies, Inc., 512 F.2d 409, 411 (5th Cir. 1975); Hodgson v. Wittenberg, 464 F.2d 1219, 1221 (5th Cir. 1972). The fact that tomatoes grown by independent farmers were processed by Gulf & Western prevents it from receiving the claimed exemption. Hodgson v. Wittenberg, supra at 1222.
In considering the other packing operations, we are...
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...1998), §41:4.E Marshall v. Eyemasters of Tex., Inc., 272 F.R.D. 447 (N.D. Tex. 2011), §9:1.C.4 Marshall v. Gulf & Western Indus. , Inc. , 552 F.2d 124, 126 (5th Cir. 1977), §9:1.B.5.c Marshall v. Partida , 613 F.2d 1360 (5th Cir. 1980), §9:1.F Marshall v. Rose , 616 F.2d 102, 104 (4th Cir. ......
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Wages, Hours, and Overtime
...Tex. 2008) (catfish cooperative failed to conclusively establish agricultural exemption), and Marshall v. Gulf & Western Indus., Inc. , 552 F.2d 124, 126 (5th Cir. 1977) (because a tomato packing plant packed tomatoes grown by other producers in addition to its own products, it could not cl......
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Table of cases
...1998), §41:4.E Marshall v. Eyemasters of Tex., Inc., 272 F.R.D. 447 (N.D. Tex. 2011), §9:1.C.4 Marshall v. Gulf & Western Indus. , Inc. , 552 F.2d 124, 126 (5th Cir. 1977), §9:1.B.5.c Marshall v. Partida , 613 F.2d 1360 (5th Cir. 1980), §9:1.F Marshall v. Rose , 616 F.2d 102, 104 (4th Cir. ......