Skipper v. Superior Dairies, Inc., 74-1729

• Decision Date: 05 May 1975
• Docket Number: No. 74-1729,74-1729
• Citation: 512 F.2d 409
• Parties: 22 Wage & Hour Cas. (BN 272, 76 Lab.Cas. P 33,244, 78 Lab.Cas. P 33,368 Richard D. SKIPPER, Plaintiff-Appellant, v. SUPERIOR DAIRIES, INC., a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 409

512 F.2d 409

22 Wage & Hour Cas. (BN 272, 76 Lab.Cas. P 33,244,

78 Lab.Cas. P 33,368

Richard D. SKIPPER, Plaintiff-Appellant, v. SUPERIOR DAIRIES, INC., a corporation, et al., Defendants-Appellees.

No. 74-1729.

United States Court of Appeals, Fifth Circuit.

May 5, 1975.

Jere D. McWinn, Jacksonville, Fla., for plaintiff-appellant.

Luke G. Galant, Jacksonville, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from the judgment of the district court in favor of the corporate and individual defendants after a bench trial following a complaint by Skipper to recover back overtime wages during the entire period of his employment as a route man from December, 1969 to February, 1973. The complaint was filed pursuant to § 16(b) of the Fair Labor Standards Act of 1938 as amended 29 U.S.C. § 201 et seq. The trial court ruled that his employment was such as to exempt him from the protection of the Act under §§ 13(b)(12) (the agricultural exemption) and 13(a)(1) (the outside salesman exemption). The court further found that the plaintiff failed to prove that he worked in excess of 40 hours per week at any time during the period of his employment.

The following brief statement deals with undisputed facts. Richard Skipper was employed at Superior Dairies, Inc. as a route man from November 29, 1969 through June 1973. His claim for overtime pay relates to the period, November 29, 1969 to February 1973. He regularly arrived at the plant on the mornings on which he made deliveries, Mondays, Wednesdays, Fridays and Saturdays at around 4:30 o'clock; he would report to the office to get his load sheet and check his load prior to leaving the plant in Jacksonville, Florida. The truck was refrigerated and it had been loaded after his previous return trip. He went out on his route that extended to Gainesville, Ocala and Silver Springs, Florida where he left dairy products and other products at some 20 or more stores. He arrived back at the plant on Monday, Wednesday and Friday late in the afternoon or early evening and "checked up" and loaded for the next delivery, a performance which consumed approximately 45 minutes. On Saturdays he had a helper part of the time and he usually returned earlier.

The route run by the plaintiff was composed, except for two or three small stores, of Mini Mart stores. Superior Dairy products were the only dairy products handled by these stores, an arrangement which had been made by the management and not by Skipper. He kept a book by which he estimated how much milk would be taken each day to build up the supply of each Mini Mart Store to its capacity. The milk had to be placed in the window (presumably a glass front refrigerator) in accordance with a picture furnished by the store. Most of the milk was left on the floor. Inside the store his duties included stamping, displaying, rotating and cleaning the milk which he had delivered or was delivering on the current trip. The managers of the stores which he served bought only such products from Superior as were authorized by their home office. Upon completion of his duties in each store the manager signed a ticket and he left. Skipper did not undertake to make sales to new Mini Marts, but he serviced them by leaving Superior Dairies products when instructed to do so by the managers of the plant.

Superior Dairies own no cows. In the words of its president, it is "classified in the industry" as "a packaging and processing plant of dairy products" and further "well, in the trade there is-we're considered as a distributor of milk products." It buys its raw milk from the Upper Florida Milk Producers Association and it cools the milk, separates it, resulting in skim and cream, pasteurizes it, clarifies it, homogenizes it, cultures and churns buttermilk, standardizing it as to contents, packages it in cartons and distributes it to retail outlets for sale.

Superior Dairies also purchased cottage cheese and orange juice which were processed elsewhere, as well as a variety of fruit drinks which were delivered and sold by it to the same customers served by the route man.

The defendants considered Skipper not to be covered by the provisions of the Wage and Hour Law and they thus kept no time records showing his hours of employment. The evidence dealing with the length of the work week will be dealt with later.

I. THE AGRICULTURAL EXEMPTION.

Neither the trial court nor the appellee in its brief undertakes to answer the contention of the appellant that, regardless of whether Skipper would be an exempt employee because of his work related to "dairying" activity, his admitted delivery and handling of completed processed products from other manufacturers, such as cream cheese, bottled fruit juices, dips and the like, prevented his employer from claiming the exemption based upon his "dairying" activities. As stated, it is without dispute that this company bought completely processed articles which Skipper daily placed on his truck and delivered to the stores on his route as a regular part of his duties for Superior Dairies.

The simplest answer to Superior's claimed exemption here was that given by this Court in Hodgson v. Wittenburg, 464 F.2d 1219 (5th Cir. 1972):

"The answer to that lies partly in the rule that an employee's performance of both exempt and non-exempt activities during the same work week defeats any exemption that would otherwise apply."

This Court also said in Brennan v. Six Flags Over Georgia Ltd., 474 F.2d 18 (5th Cir. 1973):

"Nor does it make any difference that the employee is doing mixed work. In any week that any particular employee does some non-exempt work he is covered fully, not pro rata."

Citing Hodgson, supra, and Mitchell v. Hunt, 263 F.2d 913 (5th Cir. 1959).

Moreover, we conclude that the agricultural exemption does not apply to the activities performed by Skipper relative to his delivery and disposition of the dairy products. It is hardly necessary to invoke the principle that an exemption from this ameliorating statute is to be strictly limited, Phillips v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095, to conclude that under the precise language of the Act no exemption applies to one who plays no part in the actual production of the agricultural product unless such part as is being played takes place "on a farm." The language of the section is as follows:

29 U.S.C. § 203-Definitions.

"As used in this chapter- ...(f) '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 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, and including preparation for market, delivery to storage or to market or to carriers for transportation to market." (Emphasis added.)

The officers of this defendant do not themselves consider that they are in the business of "dairying." They recognize that they are in the business of "a packaging and processing plant of dairy products." The activities that take place with respect to raw milk purchased from producers, place them in the same situation as the rancher and stock man in Hodgson v. Wittenburg, supra, who sought to exempt his employees who operated his feed lot and corrals before selling the cattle that were shipped in by others for the purpose of sale.

As discussed in this Court's opinions in Wirtz v. Osceola Farms Co., 372 F.2d 584 (5th Cir. 1967) and as reiterated in Brennan v. Sugar Cane Growers Cooperative of Florida, 486 F.2d 1006 (5th Cir. 1973) the defendants here must prevail, if at all, on the provisions of § 13(b)(12) of the Act ¹ as construed in connection with § 3(f) of the Act, Title 29 U.S.C. § 203(f) which is quoted above. In other words, Skipper is an exempt employee only if he is "employed in agriculture" as contemplated by § 3(f), the definition section dealing with agriculture. In both Osceola and Sugar Cane, this Court stated that this statutory definition of agriculture as construed by the Supreme Court embraces both a primary and secondary concept of agriculture:

"As can be readily seen this definition has two distinct branches. First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently (sic) to or in conjunction with 'such' farming operations." Farmers Reservoir & Irrigation Co. v. McComb, 1948, 337 U.S. 755, 762-763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672, 1680.

It is clear that if Skipper was "employed in agriculture," it would be only under the secondary meaning of the section. To ask whether Skipper, in picking up from Superior Dairies, a company that buys its raw milk from the original farmers, and located nowhere near a farm, and delivering products to the stores on his route was performing acts "either by a farmer or on a farm" is, it seems to us, to answer the question. The outer limits of activities that might be said to qualify under this secondary meaning would, it seems to us, be those involved in the Sugar Cane case, supra. There the Sugar Cane company had its mill complex in the middle of an area occupied by sugar...