Silgaro v. Port Compress Co.
Citation | 45 F. Supp. 88 |
Decision Date | 16 April 1942 |
Docket Number | Civ. A. No. 117. |
Parties | SILGARO v. PORT COMPRESS CO. |
Court | U.S. District Court — Southern District of Texas |
Pichinson & Alsup, of Corpus Christi, Tex., for plaintiff.
Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, Tex., for defendant.
Plaintiff, a former employee of defendant, in his complaint filed February 5, 1941, sues defendant under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201 to 219, for overtime between July 1, 1939, and September 6, 1940, and damages and attorney's fees, as provided in such Act. Defendant, owner and operator of a compress for the compressing of cotton for others for hire, in its amended answer, filed January 26, 1942, denies that either it or plaintiff, its employee, were, during such period, engaged in commerce or in the production of goods for commerce, and claims that neither of them came within the Act. Further, that they did not come within the Act, because, as defendant says, they were exempt under Subsection (c) of Section 7 and under Paragraph 10 of Subsection (a) of Section 13 of the Act.
The case has been submitted upon two stipulations, which are referred to and are quoted from as necessary.
1. Plaintiff's case is bottomed on that portion of Subsection (a) of Section 7 of the Act, 29 U.S.C.A. § 207, reading as follows:
The nature of defendant's business is set forth in the stipulation, a portion of which I quote:
The nature of plaintiff's work for defendant is set forth in the stipulation, a portion of which I quote:
The details of plaintiff's employment are set forth in the margin.1
Under these circumstances, I conclude that both plaintiff and defendant were engaged, during the period of employment, in the production of goods for commerce within the meaning of the Act as to that part of the cotton compressed by defendant which moved in commerce. Warren-Bradshaw Drilling Co. v. Hall, 5 Cir., 124 F.2d 42.
2. The working hours of plaintiff are stipulated: "It is stipulated by the parties that from July 1, 1939, to September 6, 1940, plaintiff worked sixty hours per week, at thirty cents per hour, straight time, and during said period of time he worked fourteen Sundays additionally, ten hours per day, at straight time of thirty cents per hour."
But it may I think be regarded as settled in this Circuit and District that where, as here, an employee works both in intrastate and interstate commerce, he must, in order to recover under the Act, prove and point out what part of his work was in intrastate and what part in interstate commerce. Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90, 91, and cases there cited. This, plaintiff has not done. It has been stipulated that more than 75%, but not all, of the cotton compressed by defendant moved in interstate commerce, and plaintiff does not show the time he was employed on the 75% and the time employed on the other.
3. The first exemption claimed by defendant is under Subsection (c) of Section 7 of the Act, 29 U.S.C.A. § 207, the pertinent portion of which reads as follows (italics supplied): "In the case of an employer engaged in the first processing of milk, whey, skimmed milk, or cream into dairy products, or in the ginning and compressing of cotton, or in the processing of cottonseed, or in the processing of sugar beets, sugar beet molasses, sugarcane, or maple sap, into sugar (but not refined sugar) or into syrup, the provisions of subsection (a) shall not apply to his employees in any place of employment where he is so engaged; and in the case of an employer engaged in the first processing of, or in canning or packing, perishable or seasonal fresh fruits or vegetables, or in the first processing, within the area of production (as defined by the Administrator), of any agricultural or horticultural commodity during seasonal operations, or in handling, slaughtering, or dressing poultry or livestock, the provisions of subsection (a), during a period or periods of not more than fourteen workweeks in the aggregate in any calendar year, shall not apply to his employees in any place of employment where he is so engaged."
It is perfectly plain that under the stipulation, defendant was not, during the employment period, engaged "in the ginning and compressing of cotton." So that under the language used by Congress in Subsection (c), the parties are not exempt from the provisions of Subsection (a).
But defendant says that it is a matter of common knowledge2 that there is no such thing in the cotton industry in the United States as a plant in which the cotton is both ginned and compressed. If this be correct, will the Courts then say that Subsection (c) exempts those engaged in ginning cotton or those engaged in compressing cotton? It would seem more logical to say that it exempts those engaged in ginning cotton, because the wording respecting ginning and compressing is found in the same Subsection with and in the company of exemptions which relate to first...
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