Wirtz v. Ti Ti Peat Humus Company, No. 10685.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: BOREMAN, BRYAN and CRAVEN, Circuit
• Citation: 373 F.2d 209
• Decision Date: 06 February 1967
• Docket Number: No. 10685.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. TI TI PEAT HUMUS COMPANY, Inc., a corporation, Appellee.

373 F.2d 209 (1967)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant,
v.
TI TI PEAT HUMUS COMPANY, Inc., a corporation, Appellee.

No. 10685.

United States Court of Appeals Fourth Circuit.

Argued December 6, 1966.

Decided February 6, 1967.

William Fauver, Attorney, United States Department of Labor (Charles Donahue, Sol. of Labor, Bessie Margolin, Associate Sol., Donald Shire, Attorney, and Beverley R. Worrell, Regional Attorney, United States Department of Labor, on brief), for appellant.

Charles H. Gibbs, Charleston, S. C. (G. Dana Sinkler and Sinkler, Gibbs & Simons, Charleston, S. C., on brief), for appellee.

Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.

BOREMAN, Circuit Judge:

The Secretary of Labor seeks, under section 17 of the Fair Labor Standards Act (hereinafter Act), to enjoin the defendant, Ti Ti Peat Humus Company, Inc., from future violations of the minimum wage, maximum hours, overtime, and record-keeping requirements of the Act. The defendant contends that it is excused from complying with these provisions of the Act by virtue of the agricultural exemption hereinafter noted. The District Court, in a trial without a jury, held that peat humus (the term

373 F.2d 210

apparently being used interchangeably with "peat moss") is an agricultural commodity within the meaning of the exemption provision of the Act and denied the Secretary's request for an injunction.¹ The Secretary appeals and we reverse the decision below

The defendant (hereafter "company") is a South Carolina corporation with its sole and principal place of business near Green Pond, Colleton County, South Carolina. Since 1956, the company has been actively engaged in extracting, processing, packing and selling peat humus and shipping it in interstate commerce. The peat deposit is located on forty acres of a 2,000-acre tract of land which the company leases from its president. The company has six employees who are employed on a full-time basis except when interruption of operations is occasionally necessitated by adverse weather conditions.

In 1961 the company, because its enterprise was proving unprofitable, decided that it would be unable to pay its employees the minimum rates established by a then recent amendment to the Act. It then began and continued to pay wages at rates less than those prescribed for both a regular forty-hour week and for overtime in excess of forty hours. In 1963 the Secretary instituted proceedings to enjoin future violations. The District Court, after hearing conflicting testimony of four experts, two of whom expressed the opinion that peat was an agricultural commodity and the other two expressing a contrary opinion, decided that peat was an "agricultural commodity" and that the business of harvesting and marketing the peat was exempt from the minimum wage, overtime and record-keeping requirements of the Act.

The Secretary urges that the legislative history, the administrative interpretation and subsequent congressional and administrative treatment of the Act in general and the agricultural exemption in particular indicate that Congress did not intend that the peat industry or those engaged therein should come within the exemption. Section 13 of the Act provides:

"(a) The provisions of Sections 6 and 7 minimum wage and maximum hours sections shall not apply with respect to * * * (6) any employee employed in agriculture * * * or (10) any individual employed within the area of production (as defined by the Secretary), engaged in handling, packing, storing, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, * * *." 52 Stat. 1067, 29 U.S.C. § 213(a) (6), (10).

"Agriculture" as defined by section 3(f) of the Act "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 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, furbearing 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, including preparation for market, delivery to storage or to market or to carriers for transportation to market." 52 Stat. 1060, 29 U.S.C. § 203(f).

Clearly, the company is not engaged in what is known as the "secondary meaning" of "agriculture" since the operation is not done by a farmer or on a farm.² If the exemption is to apply the company must prove that it comes within the "primary meaning" of agriculture which includes "among other things, the cultivation and tillage of the soil * * * the production, cultivation, growing and harvesting of agricultural commodities

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* * *." The question is thus reduced to a determination of whether the company's employees are engaged in any of these activities

The method of operation here followed is not complex. These peat deposits are found in a watery or marshy area or bog of some 40 acres located on the leased 2000-acre tract. The court below found that the deposits are "composed of decaying and decayed plants such as reeds, sedges, red root, baze, southern smilax, pine, pine straw, bay and laurel trees, and many other botanical specimens including various types of mosses, some of which have apparently been recently growing, and others which have been decayed, accumulated and preserved in the waterlogged area over a period of several hundred years."³ The court further found that the chemical property of the peat was 97% vegetable and organic matter and 3% mineral ash; that the company plants no seasonal crops, nor does it cultivate any...