Mitchell v. Hornbuckle, Civ. A. No. 413.

• Decision Date: 24 June 1957
• Docket Number: Civ. A. No. 413.
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, v. Harry A. HORNBUCKLE, Defendant.
• Court: U.S. District Court — Middle District of Georgia

155 F. Supp. 205

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, v. Harry A. HORNBUCKLE, Defendant.

Civ. A. No. 413.

United States District Court M. D. Georgia, Valdosta Division.

June 24, 1957.

Beverley R. Worrell, Regional Counsel, Sanford Palmer, U. S. Dept. of Labor, Birmingham, Ala., for plaintiff.

Homer C. Eberhardt, Franklin, Eberhardt, Barham & Coleman, Valdosta, Ga., R. R. Forrester, Tifton, Ga., for defendant.

BOOTLE, District Judge.

Suing under Section 17 of the Fair Labor Standards Act, 29 U.S.C.A. § 217, the plaintiff seeks to enjoin the defendant from a repetition of alleged violations of the child labor minimum wage, overtime, record keeping and shipment provisions of the Act.

The scene of the alleged violations is a plant packing shed located in Omega, Georgia, a village with about 1,000 inhabitants, the shed being owned by the defendant's wife, but leased and operated by him. This plant packing shed is a portion of a warehouse owned and maintained by defendant's wife for the storage of cotton. The warehouse has a total area of about 27,000 square feet. The area known and referred to as the plant packing shed consists of a space of approximately 70' × 100', separated from the remainder of the warehouse space by a wire field fence.

The defendant, under the name of Service Plant Company, started growing agricultural plants about 1930. This operation has continuously increased until now he is planting approximately 800 acres to plants in Georgia (600 acres in tomato plants), and from 200 to 250 acres in Florida (all in tomatoes). In addition to tomato plants, he grows some cabbage, pepper, onion and other types, his total annual production being around one hundred million plants, about 60 million of which are tomato plants.

The Florida plants are pulled and sold from the middle of March until about April 20th of each year, and are, for the most part, marketed in Georgia, North Florida, South Carolina and Alabama. These Florida plants are brought by truck to the defendant's packing shed at Omega, Georgia, for packing. The Georgia grown plants are gathered, packed and shipped from about April 25th until June 1st, each year, being grown, for the most part, in the vicinity of Omega, Georgia and marketed in Virginia, Maryland, Pennsylvania, Ohio, Indiana and New Jersey. They are packed in the packing shed at Omega and shipped largely by truck to the places where sold. Some customers send their own trucks to the packing shed for their purchases of plants. Other customers use leased trucks, and occasionally shipments are made in defendant's trucks.

In addition to plant growing, the defendant engages in general farming, growing tobacco, corn, peanuts, cotton and other farm products, devoting some 1,200 acres to this. He owns none of the land on which he grows plants or farms, but leases or rents it all.

Hornbuckle Farms, Inc., was organized about 1940 and received title to all lands then owned by the defendant. The defendant owns 98% of the capital stock in this corporation. His wife owns 1% and the bookkeeper the other 1%. They constitute the Board of Directors and Officers of the company. Ever since its formation it has leased all of its real estate and farm equipment to the defendant. It has no income other than rentals except occasional capital gains from sales of properties. Its rental income has amounted to $20,000 or more each year and has been regularly returned on its income tax returns, the defendant having charged out such rental as business expense on his personal returns. The land is rented on an annual basis, while the trucks, tractors and other farm equipment belonging to the corporation are rented or leased on a monthly rental basis.

In the packing shed are two simply constructed conveyor belts on which plants are placed and carried down a line where employees stand engaged in packing the plants. These employees throw out foreign matters, broken and faulty plants, place peat or sphagnum moss about the roots of the plants and wrap them in paper. The plants are then placed in crates or hampers and labeled for shipment. In the packing shed there are also some chain-like conveyors for moving the filled crates and hampers from the packing line to the trucks on which they are loaded.

It is tomato plants, for the most part, that must thus be packed. Cabbage and some other plants are gathered and put directly into hampers in the field. They are not as perishable as tomato plants and can be shipped without having the protective moss and wrapping.

Plants are subject to various kinds of disease and insect infestation. Accordingly the trade generally demands that plants be certified so that a reasonable freedom from these troubles may be expected. The Department of Entomology of Georgia has a certification program. To qualify for certification of the plants it is necessary that a grower obtain his seed from a source where certification programs are in effect, and to have samples sent to said Department of Entomology where tests are made for bacteria and germination. If standards are met, the seed are approved. Thereafter the grower must have his land inspected and approved by the Department. Freedom from nematodas, grasses and other objectionable matter is required. To accomplish this, the Department must check the history of the use of the land and make certain tests. Actually, as a rule, it is not safe to plant the same land to tomato plants, or other plants, more than three or four years in succession. Accordingly, farmers who grow plants must either own large quantities of land, or must rent land from others. It is highly desirable to obtain "new ground" for planting. This is generally accomplished by an arrangement with the owner of the lands from which the trees have been cut, whereby the plant grower will have the land cleared of stumps, undergrowth, etc., and in consideration of this he will have the use of the land for three or four years. The cost of such land clearing runs from $35 to $55 per acre, depending upon the location, nature of clearing, et cetera.

Help in the fields for pulling the plants is obtained from the farms and from town where it is brought out on trucks. These employees pull at a stated price per 1,000 plants, and are paid at the end of each day. Pulling cannot be started until the dew has dried from the plants, or until rain water has evaporated from them. If pulled while wet the plants will wilt and die before they can be marketed.

As they are pulled they are assembled into packs of 100, each pack being tied with a string, and then placed in burlap bags for protection from the sun. As soon as a truck load has been pulled, it is sent immediately to the packing shed. Generally, it is about noon before plants reach the shed.

Employees at the shed—generally people from nearby farms and from the little town of Omega—number from 50 to 75, depending upon the volume of work. There is a heavy turnover of employees each week. When the plants have been unloaded the strings are cut from packs of 100 each and they are placed on the conveyor belts which take them on to people engaged in packing and wrapping. Most of the employees who pack the plants are women. Many are elderly and could not work out in the sun. Some of the employees are children of school age. During the two year period covered by the testimony in this case a total of 257 different employees were employed and 34 of them were minors. As above stated, only from 50 to 75 were employed at any one time. In perhaps two instances, young boys below school age came with their mothers when they worked at the shed, and the defendant allowed these boys to loosen crates or hampers and paid them small amounts for so doing. These boys accompanied their mothers because there was no one at home to care for them and because they welcomed the opportunity to earn a little money for themselves.

The children of school age, some girls and some boys, work at the packing of plants. Because of the sporadic nature of the work and its peak periods, the defendant considers it necessary that he employ children in the packing shed. He has given instructions to his key personnel that no child of school age be employed during school hours. These instructions, however have not been effective and there have been several, if not many, instances where school children have worked in the packing shed during school hours. One witness, for instance, Doris Shipman, who became 16 on December 18, 1956, testified that a lot of the school children worked in the packing shed missing an afternoon class, and named four besides herself and stated there could be others and that this had happened from one-half dozen to eleven times during a particular six week period and that she herself had once or twice been absent from school and worked all day. During a peak period of about two weeks in the packing of the Georgia grown plants the packing shed operates frequently past midnight and, occasionally, as late as three o'clock, A.M. During the spring of each year for many years past it has been the policy of the Board of Education in charge of the school at Omega to open school about thirty minutes early and to dismiss about thirty minutes early so that farm children might be available to help at home in getting crops planted, etc. Until spring, school opens at 8:25 A.M., closing at 3:05 P.M., but after the spring holidays the hours are moved up to 7:55 A.M. for opening and 2:35 P.M. for closing. In addition, it has been the policy to permit children who have no classes during the last period of the day to leave 45 minutes earlier, or about 1:50 P.M.

The work was by the hour. If all plants were packed, the employees were released and informed as to when additional plants were expected to arrive. They did not go back on the payroll until more plants came in and work started up again. Sometimes ten minute breaks...