*1 112 v. loss. Stone bear a of his

to White, 851, 532, 534, 57 301 S.Ct. U.S. Hein- L.Ed. v. 81 inger, Commissioner 249, 467, 474, 64 S.Ct. U.S. L.Ed. 171. Finally certainly, stat- under the taxpayer

ute, deduction, the to authorize theft must establish not States, United

loss therefrom. Alison v. 167, 191, 170, L.Ed. U.S. S.Ct.

186.

I, therefore, respectfully dissent. DOMENICO, A. business as

John Vegetable Gardens, Denver Appellants,

v. Secretary MITCHELL, Labor, P.

James Department United States Labor, Appellee.

No. 5190. Appeals

United States Court Tenth Circuit. March 1956.

Rehearing April Denied *2 Arvada, (Pa- Roepnack, Colo.

Howard Maloy, Colo., Denver, H. tricia on brief), appellant. for Williams, Denver, (Stuart Reid Colo. Rothman, Margolin, Sol., Asst. Bessie Sylvia Sol., Harold S. S. Ellison and Labor, Saxe, Attys. Dept, U. S. Barnes, Washington, Harper C.,D. and Regional Atty., City, Mo., on the Kansas brief), appellee. BRATTON, Judge,

Before Chief HUXMAN, Judge, Circuit and MELLOTT, Judge. District HUXMAN, Judge. Circuit Secretary brought of Labor this against Domenico, action John A. Vegetable Gardens, business as Denver enjoin alleged violations of the Fair Labor Standards Act.1 The trial court findings made of fact and conclusions finding pro- of law Domenico had violated visions of the and Act based thereon judgment enjoining entered vio- future lations. engaged purchas- Domenico receiving, handling, production,

ing, packing, sale distribution of fresh engaged primarily He buying from farmers which have been raised the Denver area. brought produce premis- This onto his in bulk es Denver or crude containers sorted, graded, prepared pack- and is shipped ed is then in substantial quantities in interstate commerce. Do- average employs fifteen menico throughout year during workers vegetable peak of the season he em- thirty approximately ploys or more work- All of the whose com- ers. challenged pensation is worked in excess forty per pay- week without hours seq. 201 et § 29 U.S.C.A. ment of as re- overtime involved respect to the With quired exemp the Act. weeks claimed eleven Domenico for them under grown vege- In addition to these home *3 period of the the Act for weeks between July 24, 1952, during vege- peak tables Domenico the through work the and purchases table season for resale and 1952, ending 16, and claim October week vegetables grown distribution in the exemption of eleven ed additional an mountain areas one hundred miles some 7(c) the Act.2 of under weeks Section from Denver. Most of these have al- eight time, were weeks additional Of this ready sorted, packed graded, been and' August 14, beginning period for the cars, handling loaded in railroad and the through 30, 1952, Ad 1952. October by employees Domenico’s consists of a employees mittedly whose for all the produce transfer of some 'of this from exemption either work is claimed reicing one car another, to the cars and performed (3) 7(c) whatever or repacking of broken crates. The court regard to was to done without work be 1952, representative year, found during in that pro respect to local whether it was with peak season, the fourteen week grown produce. mountain duce or to the July 21 to November Domenico forty-five handled one hundred cars of some to be seems there While vegetables. fresh ty Of this number twen- and overlapping of Sections grown produce were shipped mountain 7 they identical. 7(c), are not in from outside the Denver area. Nine- scope is than in (b) (3) is broader produce teen of these mountain cars were first the 7(c) to relates opened; vegetables perish were unloaded from canning packing of processing, or eleven, produce added, other and the cars or fruits or seasonable able reshipped. eight then The contents of exemption of this the within To come goods cars were unloaded and the necessary sold on the work that provision it the local reshipped market. One car was ope employees to such be confined being opened. without Domenico’s The work rations.3 2. e or workweek ployer engaged try more than fourteen workweeks in the- ployee gregate pensation vided in this have longer one-half seasonal such subsection without gaged scribed ployed— employ of employment specified he as follows: “(3) “(c) “(b) (§ 207) “(a) Except goods $ found by employing any employee pertinent provisions violated employed. canning in than No therein for a receives any * * * nature, times the at a rate commerce or for commerce for by * * * for in excess of that any employer $ forty hours, in of his the Administrator subsection section, overtime period or calendar if such excess of in the case packing, perishable not regular employees ^[*] shall be deemed to first or employee no less in as otherwise year employment pre- paying unless such the (a) periods of the Act ar employer the processing of, rate at which than ^[*] in an indus- a workweek hours above of this sec- specified who is production to be of a is so em- the com- one and for his for a $ shall pro- em- em- not ag- en- or 3. (cid:127)ods v. Ciraco reversed 50 versed Cir., 204 F.2d Dairies, Supp. D.C., for which any Creamery scope Valle, effect weeks ployee. any, Supp. 825, year, * employer may any place engaged.” (a) In * Fleming F.Supp. work which does of this employee of 58 shall see Shain D.C., 938; during * not more Inc., F.Supp. 880; Maneja, D.C., part, & Produce F.2d. not the title, during fresh v. Swift Walling employment 907; D.C., exemption.” under sec. any not claim an aggregate exemption F.Supp. on other apply Waialua provisions v. Armour & the court 603 part fruits on other than fourteen work- 106 Walling to & v. Peacock not ; Ivey Co., McComb F.Supp. 793, his Agricultural Co., grounds, in 7(c) is claimed does where he is fall period or the workweek exemption of subsection To the same states: F.Supp. 480, any employees D.C., v. Foremost D.C., grounds, v. DeSoto vegetables, within the if the em Co., calendar or v. Del 5 Corp., 51 F. 41 D.C., peri- Cir., “An Co. for re F. so in purchases re- grown which a business man mountain did on the vegetables which proc- in carload lots vegetables first sale did constitute not originally purchased completed essing. have been first and processing was Such vegetables processed a busi- his vendor when the mountain buys crated, placed ness readied, in cars in which one such were proc- producers, them direct from the has shipment, Do- work which essed, crated, placed in then cars menico’s did on the sold trade. no relation in these bore reasonable cars processing.

to first upon placed a rul Reliance *4 7(b) “The ing is that stated, (3) Administrator Section the As handling, preparing in their scope packing, is than in broader perishable processing of or to first state of raw or natural It not restricted is vegetables fact, vegetables. is it In fresh fruits fruits or seasonable such vegetables industry but a and of sea of an fruits and is a branch limited to not meaning The of industries. Sec applies nature within the all seasonable sonal to (3) 7(b) define sea- to of Fair Labor Stand undertake tion the does not duty amended, of the of leaves Act and as but ards Part industries sonable Regulations In Sec- Administrator. issued thereunder.” so the the to part Fed.Reg. ruling (1) the (2) of first of the does not tions 3167. But that regulation industry. purport has defined he to define a seasonable Administrator's pursuant applica industry in one which That was to an as issued a seasonable “handling, hearing engaged respect ex- person tion for a with to the is in the tracting pur processing processors dur- of materials of or status first and all it occurring ports ing processing in a to state is that such a season or seasons recurring parts regularly, constitutes of in or a branch a seasonable annual dustry. year; (2) production, purport It does to state that of the apart Ceases not only operations respect such as maintenance with to from work such sea * * * vegetables year be- in the remainder of the fruits and con sonable shall that, owing industry. Indeed, of to cause the fact climate stitute a seasonable if ” * ** or other natural conditions it limited definition the of a seasonable processes industry vegetables respect such or materials are not avail- with to fresh Nothing processing able. is said first hand- be about to it would in direct ling, extracting processing. or contravention of mandate the of Section making (3) duty it the of the Ad may judicially note we thinkWe ministrator to define a seasonable indus vegetables growing of all is sea that the try. a definition Such must be rea growing the season and that sonal one and must sonable embrace all activi vegetables mountains west Den in the reasonably relate to ties the hand point sim of time with ver coincides ling of seasonable fruits and vegetables grown valley ad in the ilar promulgat the This Administrator did difference, jacent Denver. to general ing the definition of a seasonable might be, any the season for is that if industry as hereinbefore set out. growing is some mountain would, therefore, Wyatt It seem shorter. v. Holtville Alfalfa what In engaged 624, 631, purchasing, Inc., D.C., F.Supp. Mills, broker that one vege selling ing par fresh in carload lots “The test under this or court said: the grown operation area en not in this would be is the subsection tables ticular industry gaged employer, as such that of the in a seasonable individual the industry regulation. industry in the Such activ If the is defined as a whole. nature, to the same of such a seasonable extent the benefit ities are seasonal purchase finding every employer for the that activities extends as are producers though particular industry, the the em same even may fact, operations not, ployer’s is no difference thereof. There be Giorgio character of v. Di business in Hendricks Fruit seasonal. Act, D.C., Corp., F.Supp. prevailing opinion, 3 C.C.H. set out in the 25,250.” admittedly Reporter, par Finding And Labor difficult Law one. that my Giorgio Corp., in D.C., views Hendricks v. Fruit coincide Di with those of the tri- court, F.Supp. reluctantly my I al said that the court note dissent coming only requirement portion present opinion to the ifying the mod- 7(b) (3) finding by judgment was Adminis the below. industry trator that the of an or branch industry was of a seasonable nature. require think these We cases conclu parts industry sion all that that exemp is seasonable are entitled to 7(b) (3). tion of Section think it We dispute opera

without Domenico’s that respect tions with vegetables to the mountain spirit fall within Sec SEARS, CO., AND ROEBUCK as well as within the defi *5 Appellant, defining nition Administrator v. industry. It follows that employees since Domenico’s BISHOP AND on The BABCOCKMANU- work both COMPANY, processed FACTURING fruits and Appellee. grown vegetables on mountain he is en titled exemption fourteen weeks The BISHOP AND BABCOCKMANU payment from provision the overtime COMPANY, FACTURING Act, within (3), Appellant, entitled exemption to claim no v. SEARS, CO., AND ROEBUCK Appellee. portion judgment That of the alleged enjoins violations of Section Nos. por- aside is set and vacated. The Appeals United States Court of judgment restraining tion of the Do- Sixth Circuit. employing menico his April 19, 1956. processing oper- work either the first on ation or work the mountain period for a of fourteen weeks forty per in excess of hours week with- payment out overtime for work excess forty per hours week is vacated and portion set The aside. en- decree joining shipping Domenico from or sell- ing in interstate fruits and commerce vegetables upon which his forty

have worked for more than hours period week for fourteen week with- payment

out of overtime forty hours worked in excess of hours vacated set aside. modified, judgment

As so is af-

firmed. (concurring MELLOTT

dissenting part). question applicability, un- case,

der the facts this of Section

(b) (3) of the Fair Labor Standards