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Wirtz v. Jackson and Perkins Co.

January 7, 1963

W. WILLARD WIRTZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF-APPELLANT AND CROSS-APPELLEE
v.
JACKSON AND PERKINS COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Author: Waterman

Before SWAN, WATERMAN and FRIENDLY, Circuit Judges.

Pursuant to 29 U.S.C. § 217, the U.S. Secretary of Labor sought to obtain an injunction from the United States District Court for the Western District of New York, HENDERSON, J., enjoining defendant from violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq ., with respect to the hours of employment of, and the wages paid to, employees employed at the storage facilities in defendant's nursery business. The Secretary of Labor appeals from the limitation of the injunction resulting from the trial court's determination that more than 97% of the services so performed are within the Act's agriculture exemption. Defendant below cross-appeals from the injunction order requiring compliance with respect to the remaining 3% of the services. Affirmed.

WATERMAN, C. J.:

This appeal presents several questions concerning the coverage of the agriculture exemption of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq .

The defendant below, Jackson & Perkins Company, operates a large nursery business. From its main establishment near Newark, New York, it sells rosebushes and other nursery stock, both at wholesale and retail, throughout the United States.

As a part of its operations, Jackson & Perkins maintains several "storages" at its Newark establishment. Nursery stock is received there from a variety of sources: (1) defendant's adjoining Newark farms, (2) its farms in Arizona, (3) farms of defendant's wholly-owned subsidiaries in Indiana, California, and New Jersey, (4) farms of wholly independent producers, and (5) farms of independent "contract growers" having continuing supply arrangements with defendant. Once received at the storages, the nursery stock is commingled, checked, trimmed, graded, labeled, and stored. As orders are received, the individual plants are dipped, waxed, wrapped, boxed, and turned over to a carrier for delivery to the customer.

The U.S. Secretary of Labor brought this action to enjoin Jackson & Perkins from violating the minimum wage and overtime provisions of the Act with respect to the employees working in these storages. The district court concluded that the agricultural exemption was applicable to work performed upon stock originating from all but the last of the above five sources. Therefore the court limited the injunction it issued to work performed upon stock grown by independent contract growers. The Secretary of Labor appeals from the limitation of the injunction; defendant cross-appeals from the issuance of any injunction at all. We find no merit in either appeal and affirm the judgment of the court below.

Section 13(a)(6), 29 U.S.C. § 213(a)(6), exempts from the operation of the Fair Labor Standards Act "any employee employed in agriculture." Under Section 3(f), "agriculture" is defined to include

"* * * 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 * * * 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."

The Secretary of Labor has conceded in his brief that in any workweek in which an employee in defendant's storages worked upon stock grown solely upon Jackson & Perkins' farms in the Newark area, the agriculture exemption would apply. Defendant is not to be denied the exemption, therefore, because of the type of work performed by its storage employees. The only question to be determined is whether the work on stock originating from sources other than defendant's Newark farms is work "performed by a farmer or on a farm as an incident to" defendant's farming operations.

If it is clear, as the Secretary concedes, that the exemption applies to work performed in relation to stock from defendant's Newark farms, it is equally clear, we believe, that the exemption must be granted for work on stock from defendant's branch farms in Arizona. Only physical distance separates the Arizona operations from defendant's main establishment in New York. Congress has made clear, however, that the exemption is not limited to practices performed on a farm, but extends to practices performed "by a farmer * * * in conjunction with * * * farming operations." Thus, in Walling v. Rocklin, 132 F.2d 3 (8 Cir. 1942), the agriculture exemption was held applicable to employees at a shop where flowers were arranged and sold, despite the fact that the store was located several miles from the employer's greenhouses. And see Mitchell v. Hornbuckle, 155 F. Supp. 205, 211 (D.C.M.D. Ga. 1957).The Secretary has cited no persuasive authority to support his claim that the exemption is not similarly applicable to farm operations spread across several thousand miles.

Nursery stock from the defendant's Newark and Arizona sources constituted the bulk of the products handled by defendant's storage workers during the years here at issue: 73.9% in 1955-56, 75.4% in 1956-57, and 78.2% in 1957-58. Most of the remainder of the stock so handled came from the farms of defendant's subsidiaries in Indiana, New Jersey, and California: 22.1% in 1955-56, 17% in 1956-57, and 17.7% in 1957-58. The court below ruled that work performed by defendant's employees with respect to these products was within the "agricultural exemption" of § 13(a)(6). We agree.

Defendant's farming operations in New Jersey, California, and Indiana are conducted, respectively, through three subsidiary corporations wholly owned by Jackson & Perkins. The officers and directors of both parent and subsidiaries are the same. All advertising is done in the name of Jackson & Perkins. All orders for products are received and invoiced in defendant's name. Although some stock is shipped directly to customers by the subsidiary corporations, most of it is sent to the Newark storages where it is commingled and prepared for shipment.

We find nothing in the language or history of the Fair Labor Standards Act to suggest that Congress intended the availability of the agricultural exemption to turn upon the technicalities of corporate organization within which farming operations or practices performed incidental thereto were conducted. In explaining the ...


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