James P. Mitchell, Secretary of Labor, United States Department of Labor, Appellant, v. Huntsville Wholesale Nurseries, Inc., and John Fraser, Iii, Appellees, 267 F.2d 286 (5th Cir. 1959)

The only question presented by this appeal is whether the district judge correctly found and held that the agricultural exemption of the Wage and Hour Act provided by Sec. 13(a) (6) thereof, 29 U.S.C.A. § 213(a) (6), applies to the employees at the Canal Street warehouse of defendant-appellee, Huntsville Wholesale Nurseries, Inc., and as correctly denied the injunction sought by plaintiff-appellant.

The action was brought by the Secretary of Labor under Section 17 of the Fair Labor Standards Act of 1938, as amended,¹  to enjoin Huntsville Wholesale Nurseries, Inc. (herein referred to as Huntsville), and its vice-president and active manager, John Fraser, III, from violating the Act's minimum wage, overtime and record-keeping provisions with respect to employees employed at a packing and storage warehouse (hereinafter referred to as the Canal Street warehouse), located on Canal Street in downtown Huntsville, Alabama, and from shipping in interstate commerce goods produced by such employees.

In their answer and again at the pretrial hearing, appellees admitted that the employees in question were within the Act's general coverage. During the trial, they admitted non-compliance with the Act's requirements and stipulated that appellant would be entitled to injunctive relief unless, as appellees claimed, the exemption contained in Sec. 13(a) (6) of the Act is applicable to the Canal Street warehouse employees.

Section 13(a) (6), 29 U.S.C.A. § 213 (a) (6), exempts employees employed in "agriculture", which under 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, 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, including preparation for market, delivery to storage or to market or to carriers for transportation to market."

On the issues thus joined, there was a trial to the court without a jury and a record made up of, answers of both plaintiff and defendant to requests for admission, depositions, and oral testimony which, though comparatively voluminous, presented no substantial conflict with respect to any material fact. The trial concluded, the district judge, on findings of fact and conclusions of law, which sustained Huntsville's defense and rejected plaintiff's theory, entered judgment denying the injunction sought.

Appealing therefrom, plaintiff-appellant correctly, we think, summarizing the material facts²  established and found and the legal effect given them by the district judge, and, citing and discussing the cases on which it relies, is here insisting that the judgment denying the injunction was wrongly entered and that it must be reversed with directions to grant the relief sought.

The appellees, in their turn, relying strongly on the breadth and scope of the findings in their favor and the sweeping nature of the agricultural exemption, and exhaustively citing and discussing many cases dealing with and applying the exemption, are here insisting that on this record there is no basis for the holding that the findings and conclusions are clearly erroneous and must be set aside, and urging upon us that the judgment was right and must be affirmed.

A full and careful consideration of the record, the briefs and the arguments in the light of the principles as set down and applied in the controlling cases, convinces us that the appellant is right that the judgment must be reversed with directions to grant the injunction.

Since in this, as in other instances of statutory construction, Captain Cuttle's famous dictum, "The bearings of that obserwation lies in the application of it", applies with full force, and the bearing, that is the force and effect of what is said in each of the many cases cited and discussed by appellant and appellees, lies in each case in its application to the facts of that case, we shall not undertake a review and analysis of the many cases appellant and appellees cite. Confining ourselves to the authoritative cases, we shall draw therefrom and apply to the facts of this case the principles controlling here. In doing so, we shall not undertake to determine whether, as appellees claim, the exemption in the breadth of its withdrawal from the act, like Aaron's rod, swallows up the statute or, as appellant claims, the statute in the sweep of its comprehensive coverage swallows up the exemption. It will, we think, be sufficient for our purpose to cite the controlling cases. Farmers Reservoir & Irr. Co. v. McComb, 337 U.S. 755, 69 S. Ct. 1274, 93 L. Ed. 1672; Maneja v. Waialua, 349 U.S. 254, 75 S. Ct. 719, 99 L. Ed. 1040; Mitchell v. Budd, 350 U.S. 473, 76 S. Ct. 527, 100 L. Ed. 565; Mitchell v. Hertzke, 10 Cir., 234 F.2d 183; Mitchell v. Hunt, 5 Cir., 263 F.2d 913; Chapman v. Durkin, 5 Cir., 214 F.2d 360; and to say that under their holdings and teachings the judgment may not stand.

These cases settle it that the definition of agriculture in the Act combines two distinct meanings. The primary meaning includes the specifically enumerated elemental farming operations such as the cultivation and tillage of the soil, growing and harvesting. The second and broader meaning, on the basis of which the exemption was allowed in this case, includes other incidental practices but "only if they are performed by a farmer or on a farm", as an incident to, or in conjunction with, such farming operations. Farmers Reservoir Irrigation Co. v. McComb, supra, 337 U.S. 763-766, 69 S. Ct. 1274, 1280. This means that the practices in question must relate to the farmer's own farming operations and not to the farming operations of others and must in addition be subordinate to such operations. Maneja v. Waialua and Mitchell v. Budd, supra.

Although Huntsville is a farmer to the extent that it operates Gladstone Farm and has nursery stock growing on the Fraser Place, this is not sufficient to exempt the employees at the Canal Street warehouse, employed in unloading, sorting, grading, trimming, storing, racking, and picking nursery stock received from other sources. This is so for the reason pointed out in the Farmers Irrigation case, that the Act's definition of agriculture requires that the practices be performed by a farmer or on a farm, and there is the additional requirement that the practices be incidental to such farming.

Thus processing on a farm of commodities produced by other farmers is incidental to, or in conjunction with, the farming operation of the other farmers and not incidental to, or in conjunction with, farming operations of the farmers on whose premises the processing is done. Such processing is therefore not within the definition of agriculture. 337 U.S. at page 766, 69 S. Ct. 1274.

It was and is, therefore, of the greatest importance to appellees' case that it be found and held that the rosebushes grown in Texas are grown by Huntsville, and it is here, we think, that the district judge's finding and decision, that they are, runs a good principle into the ground. It is not a question here, therefore, of giving a broad or a narrow interpretation to the agricultural exemption. It is a question of considering the undisputed facts as they are proven and established and determining whether what is claimed by Huntsville to be its own farming is in reality the farming of others. We think that, judged by every aspect and understanding of farming, it must be held that the Texas growers are the farmers as to the rosebushes grown there, and that Huntsville is not. The growers are not employees or agents of Huntsville. Mitchell v. Hertzke, 10 Cir., 234 F.2d 183. It is true enough that Fraser does contribute counsel and advice, does in some instances make advances, does furnish a farm market, and does in other ways, as the purchaser of the bushes, assist the growers. But these things are not farming in the sense of the statutory exemption. To permit this sort of arrangement to be called farming so as to include within it a warehousing business of the kind operated here, would be not to give a broad construction to the statutory exemption but to do away with it altogether and to substitute for it a rule that anything that aids farming such as furnishing a steady market, certain outlets, general aid and assistance to the farmer, is within the exemption. To hold this, however, would run directly in the teeth of the cases above cited. It is true that there is evidence that some farmers do warehouse their nursery stock and that the processing of nursery stock for storing in a warehouse, such as occurred here, does not change the nature of the agricultural product. This fact, while of some significance, is not sufficient, however, under the facts of this case to bring a city warehouse, constructed, located and maintained some 500 miles from the Texas operations, within the ambit of the agricultural exemption.

In view of our holding as to the Texas rosebushes, it is unnecessary for us to consider in detail the pecan trees, the berry bushes and the fill-ins. It is sufficient to say that upon the case as a whole the exemption should be denied. After all, what is in question here is neither earth shaking nor breathtaking. There is no purpose evidenced, no result occurring which prevents Huntsville from operating its real agricultural enterprises under the exemption. All that has occurred here is that under the facts of this particular case, it is held that Huntsville, as to the particular employees involved, is not entitled to bring within the shield of the agricultural protection a warehouse in a city where no primary agriculture is being performed merely on the theory that what is done there is incidental to farming activities of Huntsville elsewhere claimed to exist but not in fact existing.

The claim to the exemption is without adequate support in the evidence. The judgment is reversed and the cause is remanded with directions to grant the injunction.