Mitchell v. Jaffe, 17164.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRIVES, BROWN and WISDOM, Circuit
Citation261 F.2d 883
PartiesJames P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Harry JAFFE, Appellee.
Docket NumberNo. 17164.,17164.
Decision Date02 December 1958

261 F.2d 883 (1958)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant,
v.
Harry JAFFE, Appellee.

No. 17164.

United States Court of Appeals Fifth Circuit.

December 2, 1958.


261 F.2d 884

Bessie Margolin, Office of the Solicitor, Dept. of Labor, Washington, D. C., Sylvia S. Ellison, Atty., Dept. of Labor, Washington, D. C., Stuart Rothman, Sol., United States Department of Labor, Washington, D. C., Beate Bloch, Atty., Washington, D. C., Beverley R. Worrell, Regional Atty., Birmingham, Ala., for appellant.

Albert A. Rosenthal, George S. Brown, Birmingham, Ala., for appellee. Rosenthal & Rosenthal, Birmingham, Ala., of counsel.

Before RIVES, BROWN and WISDOM, Circuit Judges.

BROWN, Circuit Judge.

The Secretary of Labor appeals from a denial of Section 17 injunctive relief, 29 U.S.C.A. § 217, in a case which Employer's counsel, in his strong advocacy, describes as "another example of the Secretary's persistent effort to bring all the local businesses of the nation under the Fair Labor Standards Act." Speaking for this Employer and all local businesses, he then sounds the awesome note: "If this Employer is subject to the Act then every local intrastate enterprise is covered."

These deeply disturbed feelings arise out of the Secretary's efforts to compel compliance in connection with the operation of the Employer's business carried on in Birmingham, Alabama, in the production, sale and distribution of used automobile and truck parts, tires and scrap metal obtained from wrecked automobiles.

It comes to us as a sterile question of law uninfected by factual controversy here or below, on findings which all accept and which we repeat verbatim or paraphrase without significant change.

In the course of his business, the Employer purchases wrecked or burned late model automobiles which are brought to his yard by his employees. His employees then remove from them such salable parts as generators and motors. Used parts are removed by his employees shortly after the arrival of the wrecks on the yard, and are then sold immediately to a customer or stocked for sale.1 After

261 F.2d 885
such parts have been removed, the residue of the wrecked automobiles is classified as junk and regularly, at seven-day intervals, moved by his employees to the yard of Jaffe-Wohl Iron and Metal Company2 located on premises adjoining Employer's yard. During the year July 1, 1955, through June 30, 1956, which Employer testified was typical, something less than 100 tons of such scrap metal, the proceeds of which comprised but 1.67% of total gross receipts, was sold

Four employees are engaged in working in the Employer's yard. Their duties largely consist in the stripping of parts from wrecked cars and trucks. In the typical week they remove parts from three or four cars and trucks. At the end of the week the scrap metal remaining after the stripping operation is carried over to the Jaffe-Wohl Iron and Metal Company yard. A driver is employed whose duty it is to drive a wrecker to pick up the wrecked or burned automobiles and bring them to Employer's yard. With rare exception these wrecked automobiles are picked up within the State of Alabama. When not engaged in driving the wrecker, he assists with the stripping of parts from the wrecked cars. A night watchman is employed whose duty it is to watch the whole establishment including the piles of motors and scrap.

The scrap metal going to make up the 100-ton annual delivery is placed on, or delivered to, a common stockpile on the yard of Jaffe-Wohl Iron and Metal Company. That scrap, along with similar scrap delivered to Jaffe-Wohl from other sources, is prepared by them for shipment as scrap metal. Producers located within the City of Birmingham regularly purchase scrap metal from Jaffe-Wohl Iron and Metal Company and use it as an ingredient in the manufacture of their products, substantial percentages of which are shipped outside the State of Alabama.3

In its successful defense below, two things were pressed hard by the Employer. First, the amount of scrap metal sold to Jaffe-Wohl was too insignificant; and second, the activities of the employees with respect to it were not "* * * in any closely related process or occupation directly essential to the production * * *" of the mill products as set forth in the 1949 Amendments to the Act.4 The vigorous partisan statements by members of the Congress reflected in the history of these amendments may have cast a spell. The District Court seemed preoccupied with this

261 F.2d 886
amendment to the definition of "produced." His conclusions rested entirely on the "closely related to directly essential" amendment.5

Without a doubt, we agree with the District Court that this 1949 Amendment represented a purposeful effort of Congress to prescribe a standard more restrictive than the former "necessary to the production" test. See note 4, supra, and Mitchell v. Moore, 8 Cir., 1957, 241 F.2d 249; Maneja v. Waialua Agricultural Co., 1955, 349 U.S. 254, 271, 75 S.Ct. 719, 728, 99 L.Ed. 1040, 1057, and Powell v. United States Cartridge Co., 1950, 339 U.S. 497, 499, 522, 70 S.Ct. 755, 768, 94 L.Ed. 1017, 1040 (dissenting opinion per Frankfurter, J.). But no matter how purposeful Congress was we should not become so transfixed by the nature and extent of these objectives that we are mesmerized into ignoring the plain terms of the Act which were not affected by the Amendments. For the fact is that except as to a single employee, the watchman, the 1949 Amendment has nothing to do with this case.

The Act applies to those engaged in the production of goods for commerce. The Act supplies its own definitions6 for both "Goods" and "Produced." Clearly, this 100 tons of scrap metal comes within the literal definition of "goods." For while it is not the wares, product or commodity which is the subject of the eventual interstate movement, it most certainly is "any part or ingredient thereof." The three large mills, see note 3, supra, cannot produce their output of iron and steel products without scrap metal. It is "necessary," it is "indispensable," and as a practical matter it is an essential ingredient.

As the interstate mill product encompasses all of its ingredients as "goods," it is then a question whether the activities are a "production of goods." Here the test of Section 3(j), note 6, supra, is sweeping. It clarifies it if we separate it into its two major parts:

"* * * for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in
1 producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or
2 in any closely related process or occupation directly essential to the production thereof * * *."

All of the employees, save for the watchman, meet the initial portion 1.

261 F.2d 887
The scrap results from stripping the wrecked car of usable and salable parts, burning or removing unusable portions, temporarily storing, stacking, and then moving and delivering the...

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27 practice notes
  • Montalvo v. Tower Life Building, No. 27501.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 15, 1970
    ...denied, Independent Ice & Cold Storage Co. v. Goldberg, 368 U.S. 952, 82 S.Ct. 394, 7 L.Ed.2d 386; Mitchell v. Jaffe, 5 Cir. 1958, 261 F.2d 883, 887; Mitchell v. Royal Baking Co., 5 Cir. 1955, 219 F.2d 532, 534; McComb v. W. E. Wright Co., 6 Cir. 1948, 168 F.2d 40, 42, cert. denied, W. ......
  • Wirtz v. Ray Smith Transport Company, No. 26478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 15, 1969
    ...Cola Bottling Co., 342 F. 2d 820 (5th Cir. 1965); Mitchell v. Hooper Equip. Co., 279 F.2d 893, 898-99 (5th Cir. 1960); Mitchell v. Jaffe, 261 F.2d 883, 887-888 (5th Cir. 1958); see Wirtz v. Intravaia, 375 F.2d 62, 65-66 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 90, 19 L.Ed.2d 110 (19......
  • Adkins v. Mid-American Growers, Inc., No. 88 C 980.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 2, 1997
    ...exemptions. See, e.g., Mabee v. White Plains Publ'g Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); Mitchell v. Jaffe, 261 F.2d 883 (5th Cir.1958); Tilbury v. Mitchell, 220 F.2d 757 (5th Cir. 1955), aff'g per curiam, 123 F.Supp. 109 However, at least one case has applied the de minimi......
  • Brennan v. Parnham, Civ. A. No. 72-674.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 20, 1973
    ...and after the removal of the parts the remaining car bodies were crushed and then sold to steel mills for recycling. Mitchell v. Jaffe, 261 F.2d 883 (5th Cir. 1958). Thus, Arthur Stout was also engaged in B. EXEMPTIONS NOT ESTABLISHED As noted in Footnote 1, 29 U.S.C. § 213(a)(2) exempting ......
  • Request a trial to view additional results
27 cases
  • Montalvo v. Tower Life Building, No. 27501.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 15, 1970
    ...denied, Independent Ice & Cold Storage Co. v. Goldberg, 368 U.S. 952, 82 S.Ct. 394, 7 L.Ed.2d 386; Mitchell v. Jaffe, 5 Cir. 1958, 261 F.2d 883, 887; Mitchell v. Royal Baking Co., 5 Cir. 1955, 219 F.2d 532, 534; McComb v. W. E. Wright Co., 6 Cir. 1948, 168 F.2d 40, 42, cert. denied, W. ......
  • Wirtz v. Ray Smith Transport Company, No. 26478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 15, 1969
    ...Cola Bottling Co., 342 F. 2d 820 (5th Cir. 1965); Mitchell v. Hooper Equip. Co., 279 F.2d 893, 898-99 (5th Cir. 1960); Mitchell v. Jaffe, 261 F.2d 883, 887-888 (5th Cir. 1958); see Wirtz v. Intravaia, 375 F.2d 62, 65-66 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 90, 19 L.Ed.2d 110 (19......
  • Adkins v. Mid-American Growers, Inc., No. 88 C 980.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 2, 1997
    ...exemptions. See, e.g., Mabee v. White Plains Publ'g Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); Mitchell v. Jaffe, 261 F.2d 883 (5th Cir.1958); Tilbury v. Mitchell, 220 F.2d 757 (5th Cir. 1955), aff'g per curiam, 123 F.Supp. 109 However, at least one case has applied the de minimi......
  • Brennan v. Parnham, Civ. A. No. 72-674.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 20, 1973
    ...and after the removal of the parts the remaining car bodies were crushed and then sold to steel mills for recycling. Mitchell v. Jaffe, 261 F.2d 883 (5th Cir. 1958). Thus, Arthur Stout was also engaged in B. EXEMPTIONS NOT ESTABLISHED As noted in Footnote 1, 29 U.S.C. § 213(a)(2) exempting ......
  • Request a trial to view additional results

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