Martin v. Tiller Helicopter Services, Inc., Civ. A. No. C-88-357.

• Decision Date: 30 September 1991
• Docket Number: Civ. A. No. C-88-357.
• Citation: 778 F. Supp. 1395
• Parties: Lynn MARTIN, Secretary of Labor, United States Department of Labor v. TILLER HELICOPTER SERVICES, INC. and William J. Tiller, Sr.
• Court: U.S. District Court — Southern District of Texas

778 F. Supp. 1395

Lynn MARTIN, Secretary of Labor, United States Department of Labor v. TILLER HELICOPTER SERVICES, INC. and William J. Tiller, Sr.

Civ. A. No. C-88-357.

United States District Court, S.D. Texas, Corpus Christi Division.

September 30, 1991.

Michael H. Olvera, U.S. Dept. of Labor, Dallas, Tex., for plaintiff.

Ben F. Foster, Jr., Foster, Bettac, Heller, San Antonio, Tex., for defendants.

DECISION OF THE COURT

HEAD, District Judge.

This suit is brought by the Secretary of Labor, United States Department of Labor, to enjoin defendants from violating provisions of sections 6, 7, 11(c), 15(a)(2), and 15(a)(5) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206, 207, 211(c), 215(a)(2), and 215(a)(5); to restrain the withholding of payment of minimum wages and overtime compensation found by the Secretary to be due employees of defendants under the Act; and to collect back pay and liquidated damages. Trial was to the Court. Having considered the pleadings, evidence, and argument of the parties, the Court hereinafter renders its findings, conclusions, and decisions.

William J. Tiller, Sr. ("Tiller") farms and ranches approximately four thousand acres, through either leasehold or ownership, in South Texas. He also owns and operates Tiller Helicopter Services, Inc. ("Tiller Helicopter"), which is a large helicopter operation that provides cattle herding and aerial spraying services to Tiller's own as well as to other farmers' and ranchers' lands. Apparently, Tiller Helicopter grew out of Tiller's own use of helicopters on his lands, but the origin of the business is not important to this decision.

Tiller Helicopter owns and operates six or seven helicopters. Tiller Helicopter has a customer list of approximately 200, about 100 of whom were served the year before trial. Most of the customers are in the south Texas region, but Tiller Helicopter serves customers as distant as Beaumont, Texas, and Marfa, Texas, near the Big Bend in west Texas. With respect to ranching, Tiller Helicopter uses helicopters to round up cattle over large acreages, such as the King Ranch, or on very brushy acreages where this work by horseback would prove inefficient. With respect to farming, the helicopters spray the fields with herbicides, insecticides, and fertilizers. The employees at issue are Tiller Helicopter employees who have farming and ranching duties on Tiller's own properties, and who also leave Tiller's premises and travel to other farms and ranches for Tiller Helicopter.

The daily activities of the employees begin at the headquarters of Tiller Helicopter on Tiller's farm. A helicopter is loaded onto a trailer, apparently by the pilot but not these employees. Fuel tanks and water tanks on trailers are filled. Chemicals (unmixed) are loaded onto the trailers, and the caravan of two to three vehicles is off to an independent grower's farm with trailers in tow. There the chemicals are mixed with the water from the tanks and loaded into the helicopter. Either the employees who filled the helicopter or other crew members begin to serve as flagmen, that is, markers at rows' ends to guide the helicopter pilot. After each spray pass, the flagmen move forty feet until the field is done. Then the crew either returns to Tiller Helicopter or goes directly to another farm. At the end of the day, the crew returns to Tiller Helicopter and flushes the tanks and cleans the helicopter. The crew members' other duties include cleaning the hangar and maintaining the trailers and, in certain instances, the helicopters. The Court is satisfied that no true mechanic's work is done by them on the helicopters.

Defendants contend that the employees are exempt from the overtime provisions of the FLSA as agricultural workers.¹ The burden of proving the applicability of such exemptions lies on the employer. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 749, 15 L.Ed.2d 694 (1966). The agricultural exemption applies to

any employee employed in agriculture or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways not owned or operated for profit or operated on a share crop basis which are exclusively for supplies or storing of water for agricultural purposes.

29 U.S.C. § 213(b)(12). Agriculture is defined by statute as follows:

Agriculture includes farming and all its branches and among other things includes the cultivation and tillage of the soil during the production, cultivation, growing, and harvesting of agricultural or horticultural commodities ..., the raising of livestock ... and any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations including preparations for market, delivery to storage or to market, or to carriers for transportation to market.

29 U.S.C. § 203(f). Also pertinent to the case is the regulatory definition of cultivation:

Cultivation and tillage of the soil includes all the operations necessary to prepare a suitable seedbed, eliminate weed growth, and improve the physical condition of the soil. Thus, grading or leveling of land or removing of rocks or other matter to prepare the ground for a proper seedbed or building terraces on farmland to check soil erosion are included. The application of water, fertilizer or limestone to farmland is included.

29 C.F.R. § 780.110.

The issues of exemption dominated trial of the case, and the exemption potential applies to various activities of the crew members. The Secretary does not challenge that flaggers can be exempt, Boyls v. Wirtz, 352 F.2d 63 (5th Cir.1965), but does challenge defendants' assertion that travel times and other activities occurring off the farm of the independent grower are also exempt. The Secretary pursues a strict situs argument, and the defendants pursue a functional argument. See Farmers Reservoir & Irr. Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949), and Maneja v. Waialua Agric. Co., 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040 (1955). In resolving this dispute, the Court considers the function of the employees, their activities, the locations of their work, and compares them with case law and regulation.

In applying fertilizer, pesticides, and insecticides at farms of independent growers, the central task of each employee is to go to a farm and there to conduct primary agricultural operations, Farmers Reservoir & Irr. Co. v. McComb, 69 S.Ct. at 1274, and specifically, they conduct cultivation activities. As noted earlier, cultivation includes all the operations necessary to eliminate weed growth and improve the physical condition of the soil. The application of herbicide is included to kill weed growth. The application of fertilizer is specifically included by regulation.

The Secretary takes the position that all work, to be exempt, must be accomplished on the farm site of the independent grower and that any activity occurring off the farm site is not exempt. This position excludes travel to and from Tiller Helicopter and excludes loading the trailers and fueling the tanks at Tiller Helicopter. In the Court's view, the Secretary's position would make the exemption meaningless and does not realistically honor the Congressional desire for an agricultural exemption.

The Court has found no cases directly in point. In interpreting another agricultural exemption, 29 U.S.C. § 213(a)(6), the Fifth Circuit held drivers of an independent contractor harvester transporting its employees to the fields of independent growers and taking them lunch were exempt during travel. Wirtz v. Osceola Farms Co., 372 F.2d 584 (5th Cir. 1967). In Brennan v. Sugar Cane Growers Co-op. of Fla., 486 F.2d 1006 (5th Cir. 1973), cooks and camp attendants who never went to the productive farms were exempt. 29 U.S.C. § 213(b)(12). In Boyls v. Wirtz, the Fifth Circuit held that the agricultural exemption of 29 U.S.C. § 213(b)(12) did not apply to employees of a crop dusting service who "never" went to the fields, but did apply to those who did. In Farmers Reservoir & Irr. Co. v. McComb, the non-exempt employees never went to the fields.

Each of these cases stands for the proposition that while exemptions are to be narrowly construed, the court will not allow an unnecessarily technical definition to destroy the exemption. Brennan at 1011. In our case, Tiller employees are the functional equivalent to a farmer's own employees. They perform on-hands on-site work and could be working side by side with the farmer's own employees. It is obvious that facilities like Tiller's cannot be located next to every farm that its employees serve. To impose wage requirements as if they were so located is unrealistic and renders the interpretation of the Secretary also unrealistic.

The Court therefore rejects the Secretary's interpretation and concludes that Tiller Helicopter employees' travel time from Tiller Helicopter headquarters to its customers' farms is exempt from overtime wages. This same holding applies to the activities of the employees as they load trailers and tanks with the necessary implements and commodities that they take to the fields to perform their daily activities.

Other activities at the hangar, however, fall short of the exemption. Activities of repair and maintenance of the trailers and helicopters are not exempt. While a farmer's employee repairing a farmer's equipment on his farm or on another farm incident to that work would be exempt, work at the repair shop on equipment used in the fields of independent growers is not exempt. Wirtz v. Osceola, 372 F.2d at 584. Into this category of maintenance and repair the Court would include any type of trailer maintenance or changing out of any type of equipment on the helicopter or its devices, together with any servicing of the helicopter. The Court does not include in the non-exempt status simple flushing of the tanks on the trailers. Cleaning of the helicopter, however, would be...