*2 farm on which is located during used farming him all his week in Margolin, Solicitor, Bessie Assistant raising operations. and cattle L., Street, Washington, C., D. of D. Earl ' Regional L., Attorney, Dallas, Tex., D. of barn, “4. In addition to the auction Sylvia Rothman, Solicitor, El- Stuart S. large there are two barns on this 24 acre Horn, Attorneys, lison, Albert M. United tract, hay in which feed and are stored Washing- Department Labor, States Troy for distribution to Lee Hunt’s vari- ton, C., appellant. D. for ous farms. Williams, Jr., Waco, Tex., Peeler Troy “5. Lee Hunt’s officefor his en- Sleeper, Boynton, Williams, Burleson & Johnston, Waco, farming operation tire is located in said Waco, Tex., Tex., P. M. barn, equip- various his counsel, appellee. kept prem- ment and trucks are on said RIVES, Before CAMERON and ises, employees and his meet there each Judges. WISDOM, Circuit morning instructions, go then
work on the various farms. Judge. RIVES, “6. Some who work Troy during Lee Hunt’s farms sought enjoin ap- week then work at the auction violating barn in pellee connection with the auction sale which the Fair Labor Standards Act.1 After Saturday. held on All issues, trial the district court paid single payroll. from a entered its of fact and conclu- law as follows: sions of Troy “7. Lee Hunt makes a firm bid buy each offers to head of cattle “Findings through passing barn, of Fact said auction large buy does fact numbers of cattle Troy Defendant, Hunt, Lee “1. dba each week as a result of said offers. Company, Commission owns Gatesville Approximately operates ranches, “8. various farms and one-third of operates sold said cattle and leases farms and auction barn during period operates ranches, he owns were Gates- indi- vidually Company, defendant, Troy a cattle owned ville Commission auc- Lee Hunt. tion barn.
1. Act June c. amended c. Stat. Stat. seq. U.S.C.A. 201 et
gJ5 agricul- of said Act, Hunt “9. started ture, his ation of an aid defined in said Act.” business, market in order to Judgment Final was entered: *3 through advantage “ his to better * * defendant, that said buyers many barn, own where auction Troy Hunt, operation Lee in the of against each other. would come and bid said Gatesville Commission Com- engaged Troy in “10. Lee Hunt is pany, agriculture in farming operations, his and substantial that term is in defined the Fair La- merely are not bor Act, Standards and the em- facade industrial ven- otherwise ployees thereof are within the ex- ture. emption agricultural employees of manufacturing 13(a)(6) under Section Act, or of “11. There is no said injunction and the op- processing operation and the all other re- involved in prayed lief plaintiff barn, and herein is eration change said auction of denied.” in the condition or form of Upon appeal therein, passing sold and none of the challenged of therethrough. last, fact are except the 15, supra. Appellant numbered insists Many em- “12. Lee of Hunt’s finding district court in erred ployees work at all on his various times appellee’s operation of the auction farms; employees all work of barn was “as an incident weekdays farms, as- various and on the conjunction farming or in op- with such operation sale, in sist auction (emphasis added). erations” The attack Saturdays. barn, the auction at centers around the word “such” which in “13. farms and equivalent insists “appel- single operated opera- are as a lee’s,” inapplicable and since tion, payroll, employees re- with one all about through one-third of the cattle sold porting centrally, many same said auction barn were owned doing employees helping farm work and appellee. hand, On appel- the other with auction sale. points lee out that he also made a firm who assist at “14. The bid on each passing head of cattle general Saturdays are auction sale on and, auction barn, fact, in hands, bought large is no ranch and there numbers of cattle each involved, said em- industrialization week as a result of said offers. ployees mill hands. or Act, Section 13 of the 29 U.S.C.A. § 213, captioned “Exemptions,” provides That barn is “15. said auction pertinent part: “(a) in integral as an the defendant ated (that is, farming sections and 7 operation, both the in overall of his wage minimum provi- and the op- overtime conjunction Defendant’s therewith. sions) apply respect farming shall not with erations and his * * * (6) any employee employed operation auction said barn in the performed * * agriculture “Agriculture” by farmer, farm, on a as an 3(f) is defined in conjunction Act, Section or in such incident 203(f), U.S.C.A. farming follows: operations. ‘Agriculture’ “(f) includes farm- “Conclusions of Law ing among its branches and Defendant, Troy Hunt, in the “1. things includes the cultiva- barn, operation auction is within tillage soil, tion and dairying, coverage general Fair Labor production, cultivation, growing, Act. Standards harvesting any agricultural en- (in- Defendant and or horticultural “2. commodities cluding operation gaged commodities of said defined exempt 13(a)(6) under Section cultural commodities section 1141j(g) raising 12), narrowing of Title issue, farmer livestock, fur-bearing animals, bees, farm, and his auction barn is on a poultry, any practices (in- question performed cluding lumbering any forestry “as an incident to or in operations) operations” a farmer such ? or on a farm an proving The burden its farming op- with such fall within the rests erations, including preparation for market, delivery to appellee. Walling Gen See storage eral Co., 1947, Industries market, transpor- *4 or to carriers for 548, 883, 1088; 67 S.Ct. 91 L.Ed. Fore to tation market.” Dairies, 1953, most Ivey, Cir., Inc. v. 5 Commenting on that definition in 186, 188. Irrigation Farmers Reservoir v. Mc Co. proof two- The showed that Comb, 1949, 755, 762, 763, 69 appellee’s thirds of livestock sold at 1274, 1278, S.Ct. L.Ed. Su belonged to farmers.2 other preme Court said: finding buying end, that On was readily “As can be seen this defi- appellee of cat makes a bid each head on has nition two distinct branches. large numbers, buys but tle and that he First, primary meaning. there is the large. as there is evidence to how no Agriculture farming includes in all asked, customary op “Is it for When specific prac- its branches. Certain an erator opening an auction barn to make tillage tices such cultivation offered?”, ap on bid cattle soil, dairying, etc., are listed pellee replied: “The does auction barns primary included in this boys ways. do. it various There few meaning. Second, there is the always my mostly I have made —that’s meaning. Agriculture broader I the custom. barns, understand that things defined include to than other get if someone doesn’t on farming as so It illustrated. bid, they up bid—I mean raise this back any practices, cludes whether or not telling you bid, done, how that is farming practices, themselves which say I I I don’t. have never—whatever performed are either farmer or a cow, twenty high, on too what a if it’s or farm, incidently on a con- to is; cheap, ever it if it’s too the bidders junction farming oper- with ‘such’ cow; voluntarily if too raise this it’s ations.” get my high, I the cow bid. I have always practice livestock listed The to made a that.” meaning “primary” making proof appellee, within that a shows raising doing cattle, is “the culture livestock.” bid on each head was Walling Friend, 1946, 156 many operators In F.2d auc more than what Eighth noted, customarily tion barns do. means lit It “Clearly (livestock auction) nothing that, defendants’ tle or as a result of his bid raising buys sold, appellee on each head cattle question here, then, “large of livestock.” numbers” of them. He on all bids appellee’s including cattle, own, do is: own agriculture “large ations constitute its sec- are included in the num ondary they is, “prac- accepted. sense? That are which bers” his bid is opinion, a is, farmer or a farm our tices There a total failure appellee’s proof incident that livestock auction farming operations” Further, operations ? such are “incidental to ‘such’ farm- 5, 1955, farmers; January 1, those sold from March from Of head to other 10,892 April 1957, 6,144 1957, through December head head be- belonged appellee, 18,830 11,645 longed head to other head to other farmers; during year 1956, 13,- other farmers. belonged appellee, 33,793 head “agriculture” farming as to is, tion 3 defines so ing operations,” to the practices performed a farmer appellee include as distin- operations of the operations or in con- or on a farm as an incident to guished farming oper- junction with farmer’s farmers. bring ex- To himself within the ations. inception Act From the prove ception, appellee must requisite of essential that has been an merely substantially all of some but interpre exemption. In his earliest to which subject dealing with bulletin tative practices operations incident were para. [Interpretative No. Bulletin farmer himself. 185], August 1939; 1940 (f), WHM determining way: the rule this A basic factor stated Administrator per are incident what emphasized re “It must be farmer’s formed in with a spect operations is whether the made farmer, a claim is for which among ordinarily, customarily, those they to or in con usually performed by or on farmer farming opera junction with his *5 Agricultural Maneja a farm. v. Waialua they tions, be that must Co., 1955, 254, 265-267, 349 75 S.Ct. U.S. agricultural only horti on the 719, 1040; Budd, 99 L.Ed. Mitchell v. dairy commodities, prod cultural ucts, 1956, 473, 481, 527, 350 U.S. 76 S.Ct. 100 fur-bearing livestock, bees, Only ordinarily L.Ed. animals, produced poultry performed by the farmer or on his farm by raised him.” underlying meet the rationale for that Irrigation Co. Farmers & In Reservoir part expressed the of as thus 766-767, McComb, 755, supra, v. 337 U.S. Irrigation in Farmers Reservoir & v.Co. 1274, 15, 1280, L.Ed. 69 S.Ct. 93 note McComb, supra, 760-762, 337 U.S. 1672, reads as follows: 69 S.Ct. 1277: “Although here, not relevant occupation, “Agriculture, as an requirement is there the additional includes more than elemental to be incidental growing process planting, of farming. processing, ‘such’ Thus harvesting crops. There are a host farm, produced by of commodities a of incidental activities which other conjunction incidental in farmers is to or necessary process. to Whether farming opera- with the agri- type activity particular of is a of the farmers not tion large measure, depends, in cultural conjunction incidental in with activity way in which that farming operation of farm- organized society. particular in a is premises process- whose er on cannot made The determination be ing processing is, done. is Such In less abstract. advanced therefore, not within the definition agricultural function societies the agriculture. Gonzalez, of Bowie v. activity many types of includes Cir., 1941, 1 11.” 117 F.2d agricultur- others, which, in Gonzalez, also, See, Cir., v. 1 Bowie fashioning tools, pro- of al. 11, 18; Gonzalez, v. 936; 117 F.2d Cir., 1942, Calaf fertilizer, processing vision of 127 F.2d N.L.R.B. product, few mention a Sugar Co., Cir., 1957, Olaa examples, which, functions 714, 718. societies, on the some by part repeat, farmers their of the Section 13 Somewhat agricultural exemptions Eco- provides from normal routine. Act for total however, wage progress, nomic is charac- the maxi- both the minimum by progressive a division terized mum hours the Act including separation many employees, of function. labor classes of by “agriculture.” tool manufac- employed are made Sec- Tools those specializes it ordi- turer, kind is true that a farmer who While narily raises, supplies sells the them to beef cattle that he of work and compost heap re- it is unusual for at his him to sell them farmer. produced by Ordinarily placed ferti- own auction farm- barn. er auc- Power is derived elec- uses the facilities a livestock lizers. tricity sup- company. gasoline tion rather than plied mules. farmer’s Wheat In close cases are various other there way ground In at the mill. tests, evidently con- of which were necessary functions which are reaching sidered the district court in process supplying total economic quoted supra, its for de- fact agricultural become, product, termining given practice whether a is- development process economic conjunction to or farm- separate specialization, ing. Maneja Agricultur- See v. Waialua op- dependent productive functions Co., supra, seq., al et agri- with the erated opinion, S.Ct. 719. In our this is not longer a function cultural such a close as calls for case consid- part Thus, it. eration of those various tests. To treat activity particular type whether purposeless, them would be abstract and agricultural is determined when at best there must remain fact necessity activity that a substantial physical nor culture simi- were incident to or in larity of the to that done not of the *6 in other The farmers situations. other farmers. The fact activity is whether most the cattle sold the auc- particular case is on as carried farmers, tion were owned agricultural function and that at least a substantial number separately organized as an bought of such other farmers’ cattle were dependent productive activity. The by persons other than is fatal farmhand who cares for the farm- appellee’s exemption. claim of prepares er’s mules his ferti- go The district court did not into agriculture. engaged lizer But question of whether the em- power the maintenance man in a ployed appellee’s livestock auction plant packer in a fertilizer and the paid had business been at substandard agricul- employed in judgment rates.3 is therefore re- ture, neces- if their even and the versed cause for fur- remanded replaces sary work farmers and proceedings ther not inconsistent farmers. previously done opinion. power and the manu- production of Reversed and remanded. independ- fertilizer facture Judge. CAMERON, Circuit functions, productive ent I dissent. culture.” (c), employer “of concedes 3. The * * * * * * handling the 14-workweek be entitled to would * * provided in overtime Act, (c) U.S.G.A. Section