Pearson v. Walling

• Decision Date: 10 November 1943
• Docket Number: No. 12584.,12584.
• Citation: 138 F.2d 655
• Parties: PEARSON et al. v. WALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F.2d 655 (1943)

PEARSON et al. v. WALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor.

No. 12584.

Circuit Court of Appeals, Eighth Circuit.

November 10, 1943.

Jay W. Dickey, of Pine Bluff, Ark., and A. F. House, of Little Rock, Ark. (Hendrix Rowell, of Pine Bluff, Ark., on the brief), for appellants.

George M. Szabad, Atty., U. S. Dept. of Labor, of Washington, D. C. (Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D.C., Llewllyn B. Duke, Reg. Atty., of Dallas, Tex., and Morton Liftin and Flora G. Chudson, Attys., U. S. Dept. of Labor, both of Washington, D. C., on the brief), for appellee.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The Administrator of the Wage and Hour Division brought suit in the district court, under § 17 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 217, to enjoin appellants from violating the provisions of 29 U.S.C.A. § 215(a) (1) and (2). The violations alleged were based upon appellants' failure to comply with the provisions of a wage order for the Lumber and Timber Products Industry, issued by the Administrator on October 17, 1941, under 29 U.S.C.A. § 208, and effective November 3, 1941, which established a minimum wage of 35 cents per hour for all employees in such industry, covered by the Act.¹

Appellants, as partners, operate a manufacturing plant in Pine Bluff, Arkansas, which produces, sells and distributes bows, arrows, targets and other miscellaneous items of archery equipment, in interstate commerce. They admit that their business is subject to the Fair Labor Standards Act. They raise no question as to the validity of the Administrator's wage order in relation to the Lumber and Timber Products Industry, but their contention is that they are not reasonably within the definition of the Lumber and Timber Products Industry² contained in the Administrator's order and so cannot properly be subjected to its prescription.

The district court held that those of appellants' employees who were engaged in the production and shipping of bows and arrows were under the Administrator's wage order for the Lumber and Timber Products Industry, and that appellants should be enjoined from thereafter paying to such employees wages at rates less than those prescribed by the Administrator's order for the Lumber and Timber Products Industry. There are other provisions in the decree which are consequents of this holding and which do not require mention here.

Appellants' general position can perhaps most easily be stated in the language of their reply brief: "The appellants have never contended that the Administrator could not have included them in a wage order made applicable to the Lumber and Timber Products Industry. They concede now that had they been included in the definition, their remedy would have been limited to an application to the Industry Committee to be excluded or to receive special classification and then judicial review as provided by section 10(a) of the Act.³ The appellants only contend that they are not within the definition and that the Administrator, by his ex parte interpretation, is trying to deprive them of the right to be notified and the privilege to be heard, both of which were granted by the Congress⁴ as a protection against an over-enthusiastic exercise of delegated powers."

As appellants properly concede, if an industry has been sufficiently clearly defined by the Administrator, and notice and opportunity for hearing have appropriately been given in accordance with the requirement of the Act, the question whether a particular product should have been included in such industry or in another, or in some special classification thereunder, is primarily a matter of administrative convenience and judgment;⁵ and, in any event, where there has been a sufficiently clear definition by the Administrator and notice and opportunity for hearing have been duly given, any question of unreasonableness or arbitrariness in connection with the issuance of a wage order is reachable judicially only by petition for review in the proper circuit court of appeals.⁶

Does the Administrator's definition of the Lumber and Timber Products Industry sufficiently clearly, by express language or reasonable implication, include the manufacturing of bows and arrows? More concretely, is the definition sufficiently specific, so that the notice based thereon, of the hearing before the Industry Committee,⁷ and of the hearing before the Administrator on the Industry Committee's recommendations, and of the final promulgation of the wage order, could fairly and reasonably be expected to advise appellants and other manufacturers of bows and arrows⁸ that they were in all reasonable certainty within the compass of the proceedings being had and of the final order made?⁹

We think the Administrator's definition, by its inclusion of "the manufacture of specialized timber products", was reasonably sufficient for this purpose; that appellants were thus legally advised by the published notices that, unless an express exclusion was subsequently made, their bow-and-arrow manufacturing operations were properly within the scope of the proceedings had; that they were accordingly afforded a fair legal opportunity to appear in the proceedings and to seek to have their product excluded or specially classified, if they were properly entitled thereto; that they were similarly duly put in a position to require them to have attacked the final wage order on petition for review, if any sound ground existed therefor; and that, in thereafter seeking to enforce the wage order against appellants' bow-and-arrow manufacturing operations, the Administrator cannot fairly be said to have failed to make an adequate definition under the Act, to have been guilty of arbitrariness or fundamental injustice in administration, or to have violated due process.

Section 8(f) of the Act, 29 U.S. C.A. § 208(f), requires, of course, that "Orders issued under this section shall define the industries and classifications therein to which they are to apply", but this does not mean that Congress intended to compel the Administrator to enumerate in his definition every specific product which the order was designed to cover. Such an attempted enumeration, as the Administrator points out in his brief, would certainly be a most difficult if not an impossible task. The power delegated to the Administrator to make definitions and classifications and to fix wage rates on the basis thereof manifestly was intended to assist in furthering the broad remedial purposes of the Act, and, in that light, we see no reason to suppose that Congress intended to require stricter or narrower standards of definition and classification on the part of the Administrator than it could itself have employed. Where the Administrator has acted within the general sphere of his delegated powers and has complied with the processes necessary for their exercise, his wage orders, for all civil purposes at least, have the force and effect of a legislative act,¹⁰ are subject to the same tests as to their validity,¹¹ and are governed by the same rules of interpretation and construction.¹² On the basis of these principles, we believe that the Administrator, in formulating a definition for wage-order purposes, is only required to outline with reasonable clarity and certainty the general limits or extent of the industry sought to be covered, and that, where this has been done and general opportunity for hearing, on notice, has been duly afforded, there is no legal injustice involved in administratively applying the order to any product which, by sound implication and natural interpretation, falls within the boundaries that have been set, and which has not been specifically excepted therefrom.¹³ Here, as in the general testing of any legislative remedial act, it is reasonable and practicable certainty, and not legalistic preciseness, that is the sound criterion in definition.

As we have previously indicated, the manufacture of bows and arrows, as the process is described in the record here, seems to us, reasonably and by sound implication, to fall within the limits or boundaries of "the manufacture of specialized timber products". The record shows that, in the manufacture of bows, appellants first saw and shape rough pieces of wood, until they have been reduced to the proper size, and then sand them by means of a pneumatic drum until they are ready for finishing. They are thereupon sent to the finishing department, where they are dipped in a vat of sanding sealer, are sprayed with varnish, and are duly strung. A leather grip or handle is also placed and glued upon each bow. In the manufacture of arrows, shaped wooden-shafts about 30 inches in length are purchased, and one end thereof is trimmed down to receive a plastic arrow-point, while the other end is shaped to hold a plastic nock for the drawn bow-string. The shafts are then sent to the finishing department, where they are lacquered and color-striped; the plastic point and nock are affixed with glue; and the tail of the arrow is fletched with turkey-feathers.

Wood is thus...