Martinez v. Deaf Smith County Grain Processors, Inc., Civ. A. No. CA-2-81-228.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
Citation583 F. Supp. 1200
Docket NumberCiv. A. No. CA-2-81-228.
PartiesJose MARTINEZ, Plaintiff, v. DEAF SMITH COUNTY GRAIN PROCESSORS, INC., Cliff A. Skiles, Jr., and Cottonwood Cattle Co., Inc., Defendants.
Decision Date01 March 1984

583 F. Supp. 1200

Jose MARTINEZ, Plaintiff,
DEAF SMITH COUNTY GRAIN PROCESSORS, INC., Cliff A. Skiles, Jr., and Cottonwood Cattle Co., Inc., Defendants.

Civ. A. No. CA-2-81-228.

United States District Court, N.D. Texas, Amarillo Division.

March 1, 1984.

583 F. Supp. 1201
583 F. Supp. 1202
Carmen E. Rodriguez, El Paso, Tex., for plaintiff

James A. Besselman, Amarillo, Tex., for defendants.


MARY LOU ROBINSON, District Judge.

Plaintiff has brought this suit alleging violations of the Fair Labor Standards Act's minimum wage, overtime and anti-retaliation provisions, 29 U.S.C. § 201 et seq., and of the Farm Labor Contractor Registration Act, 7 U.S.C. § 2041 et seq. The case was tried to the Court on October 28, 1983, and the following constitutes this Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.


Plaintiff is an Hispanic farm worker who was hired by Defendant Cliff Skiles, Jr., on March 21, 1981. Skiles was the principal owner, manager and supervisor of the other two defendants: Deaf Smith County Grain Processors (DSCGP) and Cottonwood Cattle Company. Cottonwood's principal business activity was feeding, pasturing and raising cattle, primarily on the South Half of Section 37, K-4, in Deaf Smith County.

DSCGP was in the business of buying, cleaning and selling food corn. It leased a grain elevator and cleaning equipment from Cottonwood, which was located on the South Half of Section 37, K-4, in Deaf Smith County, to conduct its principal business activities. Corn grown on Skiles' land was processed together with corn purchased and trucked in from other farms. DSCGP had fully automated cleaning and sacking equipment which could be operated by one man. After cleaning and sacking, manual labor was needed to stack the sacks of corn as they came off the sacking machine. Corn for human consumption was shipped in interstate commerce while the cattle feed corn went to Cottonwood as part of DSCGP's lease payments. Only

583 F. Supp. 1203
5-7% of the corn was actually sacked, however. The majority of the corn, 93-95%, was sold in bulk after cleaning and grading. In 1981, DSCGP was processing one million pounds of corn monthly

During Plaintiff's first three weeks of employment, he performed general farm hand duties, including repairing and painting fences and water troughs and taking care of Cottonwood's cattle on a 70-acre farm in Deaf Smith County, partially owned by Skiles and leased by Cottonwood. During the remaining period of his employment, from approximately mid-April through August 28, 1981, Plaintiff worked and lived on the South Half of Section 37, K-4, in Deaf Smith County. He continued to perform some duties for Cottonwood and Skiles, and began working part-time at DSCGP. Jake Green, DSCGP's manager at this time, testified that Plaintiff worked at DSCGP 12-15 times per month, up to 15-20 hours per week.

Plaintiff was directly supervised by Skiles throughout his employment. Defendants admit that they did not maintain written records of the number of hours and days per week which Plaintiff worked and did not provide him with wage receipts.

FLSA Coverage

"The Fair Labor Standards Act is a Federal statute of general application which establishes minimum wage, overtime pay, equal pay and child labor requirements that apply as provided in the Act. These requirements are applicable, except where exemptions are provided, to employees in those workweeks when they are engaged in interstate or foreign commerce or in the production of goods for such commerce or are employed in enterprises so engaged within the meaning of definitions set forth in the Act. Employers having such employees are required to comply with the Act's provisions in this regard unless relieved therefrom by some exemption in the Act...." 29 CFR § 780.1 (1981). An employer who claims an exemption under the Act has the burden of showing that it applies. Mitchell v. Kentucky Finance Co., 359 U.S. 290, 291, 79 S.Ct. 756, 757, 3 L.Ed.2d 815 (1959).

As a threshold matter, the Court finds that the Defendants were joint employers of Plaintiff for purposes of the FLSA. See Falk v. Brennan, 414 U.S. 190, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973). This finding is based on the totality of the circumstances and the economic realities of Plaintiff's employment. Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir.1983). See 29 CFR § 791.2(a) (1981) ("If the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek"). Since Skiles owns all of Cottonwood Cattle Co. and 90% of DSCGP, and they are all located on the same piece of land, they also fit cleanly into 29 CFR § 791.2(b)(3) (1981) ("Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common contract with the other employer" a joint employment relationship will generally be considered to exist).

Defendants' principal contention is that they are exempted from the wage and hour provisions of the Act by Section 13(a)(6), 29 U.S.C. § 213(a)(6) (1981), which provides in relevant part:

The minimum wage and overtime pay requirements of this title shall not apply with respect to —
. . . . .
583 F. Supp. 1204
(6) Any employee employed in agriculture: (A) If such employee is employed by an employer who did not, during any calendar quarter during the preceding year, use more than 500 man-days of agricultural labor....

Since the conditions specified in the language of the Act are "explicit prerequisites to exemption", Arnold v. Kanowsky, 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960), the first inquiry is whether Plaintiff was employed in agriculture within the meaning of the Act. Section 3(f) of the Act, 29 U.S.C. § 203(f) (1981), defines "agriculture" as follows:

"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 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, furbearing animals, or poultry, and any practices ... 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 term "livestock" includes cattle, 29 CFR § 780.120, thus Plaintiff's work for Cottonwood appears to fall within the "raising of livestock" portion of the primary meaning of agriculture and does not defeat application of the exemption. Nor does the 500 man-day exception to the agricultural exemption apply in this case for the March 21, 1981, to mid-April, 1981, period. The maximum number of man-days used by the Defendants in any calendar quarter of 1980 was 426. Even assuming, as Plaintiff argues, that 29 CFR § 780.158(a) (1981) requires the bookkeepers employed by Skiles at Livestock Health Products, Inc., to be included in this total, the result is not changed. Skiles testified that Livestock Health Products employs one full-time bookkeeper and an occasional part-timer. For a 13-week quarter, the full-time bookkeeper would add 65 man-days, bringing the 1980 third quarter up to 491. No evidence was presented on how many man-days any part-timer worked in any of the quarters, thus the Defendant's evidence that no more than 500 man-days were used in any quarter stands unrefuted.

Plaintiff's work for DSCGP, however, is another matter. None of the activities listed under the primary meaning of agriculture covers DSCGP's corn processing operation, nor does this operation fit within the secondary meaning of agriculture.

"Practices ... performed by a farmer or on a farm" must be performed as an incident to or in conjunction with "such farming operations" in order to constitute "agriculture" within the secondary meaning of the term. 29 CFR § 780.137 (1981). As the Fifth Circuit has held, however:

Processing on a farm of commodities produced by other farmers is incidental to, or in conjunction with, the farming operation of the other farmers and not incidental to, or in conjunction with, farming operations of the farmers on whose premises the processing is done. Such processing is therefore not within the definition of agriculture.

Mitchell v. Huntsville Wholesale Nurseries, 267 F.2d 286, 290 (5th Cir.1959). The Department of Labor takes a similar view:

No practice performed with respect to farm commodities is within the language under discussion by reason of its performance on a farm unless all of such commodities are the products of that farm. Thus, the performance on a farm of any practice, such as packing or storing, which may be incidental to farming operations cannot constitute a basis for considering the employees engaged in agriculture if the practice is performed upon any commodities that have been produced elsewhere than on such farm.

29 CFR § 780.141 (1981). Thus while Plaintiff was working for DSCGP, he was not "employed in agriculture" within the meaning of the Act. This same result is

583 F. Supp. 1205
achieved if the Supreme Court's test for determining whether...

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    ...Iowa Select Farms, L.P., 6 F.Supp.2d 831, 836 (N.D.Iowa 1998) (hogs are livestock); Martinez v. Deaf Smith Cty. Grain Processors, Inc., 583 F.Supp. 1200, 1204 (N.D.Tex.1984) (cattle are livestock). The Department views livestock as essentially a mammalian category, including “[c]attle (both......
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    ...Select Farms, L.P., 6 F. Supp. 2d 831, 836 (N.D. Iowa 1998) (hogs are livestock); Martinez v. Deaf Smith Cty. Grain Processors, Inc., 583 F. Supp. 1200, 1204 (N.D. Tex. 1984) (cattle are livestock). The Department views livestock as essentially a mammalian category, including "[c]attle (bot......
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    ...basis in fact or law. Bill Johnson’s Restaurants, 461 U.S. at 748. The case of Martinez v. Deaf Smith County Grain Processors, Inc. , 583 F. Supp. 1200 (N.D. Tex. 1984), illustrates how an employer’s countersuit can give rise to a retaliation claim. In that case, the plaintiff left the empl......

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