*1 prove America, go of North conditions standard aboard vessels as the continues its purposes bargaining, certain rise.” of collective presentation griev- discussion and basis statements have no ances, protec- and for other mutual aid and record. The matters are not known stated tion employees represented by the and, true, are, judicially present pur- Unions, including the collection dues and poses, irrelevant. As to their truth or fal- papers of trade mem- union sity, express opinion. I bers, provided, however, petitioner that the required passes is not to issue for the solic- itation of membership; (b) immediately conspicuous Post vessels, on its for a least of at sixty (60) days consecutive from date of posting, notices to the unlicensed deck and engine personnel, peti- stating: (1) that the engage tioner will the conduct from ordered, which pargaraph to cease and desist in REYNOLDS RIVER VAL et al. v. SALT 1(a); petitioner LEY WATER USERS ASS’N. will take the affirmative action set forth in No. 10618. hereof;
paragraph 2(a) (c) Regional Notify the Director Appeals, Circuit Court of Ninth Circuit. Twenty-first Region writing within ten June 1944. days from the-date of this decree what Opinion steps Concurring July 19, petitioner comply has taken to herewith. Judge (concurring result). result, I concur but do not concur my (Judges DEN- STEPHENS) say opin- MAN and in their My ion. “Their vessel is at once the residence place and residence there of work of the sailors. As their gradual has been a evolu- dimly from the lit and unventilated bunks, with its forecastle lack tiers
privacy disease-communicating crowd- trailing approximation into a of the ris- ing standards of workmen ashore. Like- trailing rise wise towards onshore fare ships’ preparation food and its from the infrequently weevily horse and not salt hardtack, accompanying scurvy, with the a more diversified diet with cooks of better training competition and skill. The carriage keen, in sea vessels has been so profits absent, so slender often managers many have not had the means voluntary improvement of the sailors’ quarters pressure or food. The of the sail- particularly ors’ unions and the Sailors of the Pacific under historic Union
leadership of Andrew Furuseth has been a
major provement. gradual factor in this evolving im- vigilance pres- Constant prevent
sure a falling below any established standard or failure to im- *2 Cox, Sol., Archibald Douglas Maggs, B. Sol., Asst. Sol., Margolin, Bessie
Associate C., Labor, Washington, D. Dept, Atty. Williams, Regional Dorothy M. and Atty., Dept, of Johnston, Willard S. Cal., Ad- Francisco, Labor, for both San Division, Wage Hour ministrator of Labor, Dept, curiae. U. S. as amicus DENMAN, Before Judges. STEPHENS, Circuit DENMAN, Judge. below, Appellants, plaintiffs one corporation, in by appellee
in Arizona conducting capacities or another of the ditches, which de- maintain, distributing and they also irrigation of livering unproductive shareholders’ otherwise lee’s lands for vegetables shipped largely agricultural products pumping interstate commerce irrigation. for such of the water mini- than the paid less claimed were max- more than wage and worked mum 6 and 7 Sections imum hours the Fair Labor Standards 1938, 29 Act of 206, 207, hereinafter called U.S.C.A. §§ com- Act, for the additional sued below liquidated equal pensation amount They ap- Act. damages provided in that judgment upon the fol- peal based from a' lowing law: conclusions of by plain- “1. That in tiffs, them, each of of the services Association, mentioned in their defendant herein, evi- shown complaint and as plaintiffs, said during said dence, none of commerce, time, were commerce, goods production of or the pro- occupation necessary to or in said thereof, within the duction Act. carrying said That on of its “2. aforesaid, de- operations, as business and estab- Association was a service iendant greater part
lishment, of whose service reason in intrastate them, are ex- plaintiffs, and each of thereof empted benefits of provisions said Act. employed by de- plaintiffs “3. That the capacity zan- fendant Association jeros outside salesmen within the mean- Langmade, Phoenix, & Langmade act, exempted pro- of said
Ariz., appellants. Act.” and benefits of said visions Scott, do not with- of these con- Sloan, Greig & We Scott Green and adduced, Phoenix, Ariz., up- law from the facts clusions of all of With federal assistance further- conflict. substantial on which there is augment- ance purposes, appellee of its (A) Appellee corporation is not a service has and, ed its work 13(a) power, to harness the water within establishment ; hydroelectric constructed (B) appel- plants for the Act, 29 U.S.C.A. § pro- electricity. lant were *3 water, use however, ap- in remains products for interstate commerce duction of within sections and of pellee’s Act; (C) shareholders—the farmers in the the and Salt Valley require River and are zanjeros, requisition acting the under the law it irrigation entitled to for the their in of appellee’s shareholders the distribu- of appellee charged lands—and is the ob- delivery to the latter of water and ligation for, to lands, hold this water and their are not “outside sales- serving it proportion to them in interests exemption to their men” within thé of section subject only their paying to assessments no sales of water of the Act and delivery advance defray ap- of in order to made or aided them. pellee’s expenses. costs and Appellee service establish- A. is a therefore, The flow is to allowed ment. only in accordance the with the demands of Appellee operates a water and electric appellee shareholders, and makes no inde- system irrigation water pendent disposition of it. As water is Arizona, power con- and central which shareholders, called for appellee dams, two diver- large sists of five guides its flow from the and rivers reser- plants, dams, hydroelectric sion one eight hydroelectric plants voirs plant, plant, steam Diesel 1400miles one (thereby generating electricity) and laterals, hundreds miles canals, down the network lat- lines, power deep pumps, hundred well two erals and ditches to the Thus necessary equipment for, of, water demand operation of water a and electric also determines the ity; electric- utility. great These works extend over a words, in other electricity gen- is area; by appellee’s water the lands served hydroelectric erated plants only at the 250,000 comprise approximately themselves appellee delivers water to its shareholders. Appellee’s power acres. investment Appellee’s system water and con- electric plants approximates $23,000,000. During single stitutes enterprise coordinated based the case this twelve months’ involved primarily upon the ttse of water of the appellee generated power plants at its Salt and Verde Rivers. 408,779,430 electricity. kilowatt-hours of however, supply, augment this To supplied per- The Forty water to farms. pellee underground pumps into its water supplied cent of copper min- laterals, canals and and distributes it to the companies for use in their mines. irrigation. Appellee obtains the bulk of its water pumps operated by electricity, portion irrigation both for and for the state, of which it receives from out of of power from Salt Rivers. Verde generates. and the remainder of which it Its shareholders are farmers the Salt . Appellee claims and the district Valley. They River predecessors their held above appropriated interest so became en- appellee functions is a “service establish- titled to the use water in Salt ment” 13(a) (2) within section the Act Verde Rivers for the of their exempting wage minimum lands which would otherwise be arid organization provisions (sections 7) hours 6 and unproductive. Prior to “(2) any employee Act retail appellee, this water was distributed to the service greater establishment the farmers by companies. a number of canal servicing whose selling is in intrastate Appellee organized purpose was commerce.” of unifying projects con- and thus possible serving This court considered water distributing legislative history exemption. effectively farmers this more be- than purpose exempt neighborhood fore. One share of mer stock was is- sued serving consuming public for each acre land in chants project. might The appurtenant stock is otherwise be covered lo due their land and passes Block, Walling therewith. cation near state line. grow restraint, clog the without Walling v. would Cir., 139 F.2d Cf. Jackson stop the 564, 571, 63 ditches Paper Co., laterals ville op- vital flow American of water. In their work Walling v. 87 L.Ed. dozers, Fleming draglines, dredges, v. erate shov- bull 133 F.2d Stores els, mowers, burners and other Kirschbaum A. B. repair uniformly perform machines. work also held The courts have upon weirs, gates, phys- the head and other establishments exemption applies only to equipment ical selling which controls the flow a retail character stores, through appellee's both, works. grocery such as services or beauty stations, shops, filling barber t-he pump operate and service men inap parlors; exemption and that pumps electric under- draw companies plicable electric ground -the water delivered *4 A. B. Kirsch Walling such v. as lee’s to in addition shareholders 567; Bracey Cir., v. Co., F.2d 3 124 baum obtained from the Verde Rivers. Salt and 8; Mon Cir., 4 138 F.2d Guess Luray, employees Whenever on these switch 500; Kidd tague, Collins v. Cir., 4 pumps including electricity, elec- cause 79; Sun 132 & 5 F.2d Dairy Ice Ari- tricity of originating the State ouside Walling, 140 6 F.2d Publishing Co. v. zona, appellee’s lines. Thus to flow Telephone 445; Union Peoples Schmidt supplying employees, these in addition to Cir., 138 Wall 8 Marysville, of appellee’s shareholders, en- to are Cir., 132 F. 10 Peoples Packing ing v. gaged in bringing electricity into state. & Gravel Sand v. Central 2d Wood Co., D.C.Tenn., F.Supp. 33 of judicial notice takes This irri fact that the rainfall in the area 1400 miles of Appellee its with gated by supplied so is so scant the water 2 laterals, dams, diversion 5 that, irrigation, pro would absent that area plant, hydroelectric plants, dams, 8 steam very present but a of its duce small fraction miles plant, of of Diesel hundreds products. These are such as are admitted plants lines, and other deep pumps, well appel appellee’s of answer below to one equipment establish- is not “service a produced interrogatories lants’ to have been ment.” year its 1941. It shareholders employees engaged B. questioned large part not products that in directing of water pumping in the flow shipment intended were lands stockholders’ of its shipped They were in interstate commerce. production goods” in “engaged are were supply since for interstate “Citrus 112,259,520 ........... lbs. “occupa “process” and an of water ‘ spring Lettuce, 1,763,365 crates production” of such necessary to the tion goods Lettuce, 1,087,125 fall .... crates Act, 3(j) in defined section as sugar Beets, 5,869,892 .... lbs. Cantaloupes particularly, (j).1 More 29 U.S.C.A. § 925,600 .... crates employees en appellee’s are maintenance Broccoli Crop On 1941 Cabbage repair cleaning, and gaged maintaining, in Report Carrots as Truck laterals, and ditches ing the Cauliflower 69,993,600 Miscellaneous.... Lbs. irrigate the farms. water flows to which the Watermelons noxious burn employees mow and 30,980 Cotton, short lbs. which, permitted to grasses and weeds 8,145.45 Cotton, long bales' exemption agriculture” produced, 1“(j) man within the moans ‘Produced’ n (a) mined, any handled, ufactured, That other Act: any State; question was raised here and for not on in worked manner question employee purposes It is a court below. may well this Act an practice rulings engaged affect the have been be to shall deemed employee Wages goods Division the De production and Hours if such partment producing, of Labor manufactur was transporting, handling, mining, ing, its under the Act. “Our de functions prejudice working goods, is without dis manner cision position other question ap occupation any process wherever neces or in presented.” propriately production thereof, sary Blair v. Oester to the lein, State.” Appellee L.Ed. 249. did make the affirmative not “employed employees plea were sug- are regarded occupa- engaged with be We are unable as in an gestion persons supplying ‘necessary if the production “occupation for plainly “process” so and an commerce’.” prod- necessary production” of such appellee’s We hold maintenance ucts, Act so deemed within then are pumpmen production persons included would goods for interstate commerce. step prior manu- but zanjeros en C. The likewise were ploughshares and harness facture gaged in goods. of such plow farmers. horses or tractors sold to the not within “outside salesmen” sec statutory As enactments in all such broad tion 13(a) the Act. processes conduct, regulating there a borderline between remote and immediate zanjeros in- day day receive participation. irrigating water Here the structions only qua but one a causa sine non specified quantities of the water proximate the several causes of which the A shareholders are entitled. zan- growth. intimate immediacy is obvious. jero many may instructions receive from as Quantitatively, major content of these twenty day. Approxi- watermelons, lettuce, cabbage, cantaloupes, mately one day each communi- broccoli, carrots is water which cates appellee by *5 pumped of it part has been in for and all telephone and tells them how much water ap- plant by directed toward the roots the day by that the shareholders pellee’s employees. territory. his employees there- upon release storage sufficient appel water We difference can see no between to fill the total demands and inform the lifting vertically lants and direct the water place of the time and ly at which the laterally the roots which toward water will territory. reach itself, the canals within his channel it into the Upon receipt of sufficient zanjero, water the pieces mechanics into of metal by setting forebays, controls and opening channels of the a machine which automat gates, head measuring closing ically water pens pins manufactures or or wire head gates, routes clips. Appellants’ participancy certainly is the water from the main canal engineers, as into and intimate as that of the firemen the intermediate buildings laterals and super- electricians ditches under his vision on to engaged tenants each of housed in the manu the shareholders whose the goods filling. They, for commerce. demands he pump- facture of interstate the as men, Walling, A. B. Co. 316 U.S. ers Kirschbaum v. maintenance 1116, 1118, production 517, 62 86 1638.2 S.Ct. L.Ed. for interstate com- Supreme merce. There Court said: engineer produce and the firemen “The 13(a) (1) exempts Section wage from the heat, hot and steam provisions any and hour employee employed manufacturing operations. They keep ele- in “the capacity (as outside salesmen vators, radiators, sprinkler systems and fire such terms are defined and delimited regulations of the Administrator).” repair. The electrician maintains system which furnishes tenants pertinent regulation issued the Admin- * * * power. light light Without provides, istrator and heat the tenants could not * * * ‘employee “The employed term do, engage, production as capacity outside salesman’ in sec- goods for interstate commerce. The main- (1) of the act shall mean safe, tenance of a habitable in- building is employee— * * * dispensable activity. to that In “(A) judgment, employees pitrpose work of who is our for the is customarily cases had regularly in these close en- and im- process away production gaged employer’s place mediate tie with from his making for and was business therefore so sales with- much it, act; employees 3(k) essential 2 Drilling 320; Cf. Warren-Bradshaw U.S. 64 Co. v. Hall, Womack, 63 ConsolidatedTimbler Co. 9 3.32 S.Ct Hargrave 101; Walling Sondock, Cir., L.Ed. v. Mid-Continent 132 F. Pipe 2d 77. Line Package Corp., v. Southern
Walton Judge (concurring orders contracts obtaining result). which a consideration use of facilities customer, and client paid by will be result, I concur concur but do not in all DEN- my (Judges the same “(B) whose hours of work opin- MAN STEPHENS) say in their nonexempt performed by nature as that ion. percent do not exceed workweek
number hours worked in the After pointing out, correctly, provided nonexempt employees; by such pellee’s shareholders have and in performed incidental to that work by appellee water used conjunction out- employees’ own with the electricity, my of ter, therefore, wa- “The solicitations, inci- including side sales or only to flow allowed collections, dental shall not deliveries and accordance with demands the share- * * regarded nonexempt work.” as holders *. As the called water is shareholders, appellee guides its “Appellee, that: brief admits flow from the rivers and reservoirs Ari- has, law of itself, under the [no] hydroelectric plants (thereby generating its electricity) or interest acquire, zona title cannot * * * on down developed by it and delivered in the water for, shareholders. Thus demand only to the lands of its of, also determines development, is the therein interest words, electricity; in other to those making available generated electricity hydro- at the of their thereto entitled plants only appellee electric wa- delivers sell no water to appellee has lands.” Since quoted ter state- shareholders.” The water sellers employ salesmen as it cannot are incorrect. Water ments delivered or aides water sales. appellee’s dinarily, be, may is or- de- performing above In the function *6 of elec- used for “obtaining zanjeros scribed, are tricity long before, be- and several times [appel- for the use orders contracts or fore, delivery for. thereof made or called right The shareholder’s facilities.” lee’s] to the out, correctly, After pointing is intrinsic facilities use produce cantaloupes, wa- lee’s shareholders termelons, lettuce, the associa- status in shareholder’s his broccoli, car- cabbage, direct tion. is the shareholder’s It vegetables, my associates rots and to distribute corporate say: “Quantitatively, major content of The zan- shareholder's land. water ter the lettuce, cantaloupes, watermelons, cab- by jero the shareholder is directed bage, broccoli is the carrots to his amount of water certain part pumped been for and all so, do not ob- but is land “ordered” plant by the of it directed toward the appellee’s employees.” roots corporation taining an order This, true, im- if otherwise. solicitation or holding are appellants material. Our fact, engaged g'oods assuming, contra to Even of the Fair within the on the shareholder’s direction acting that in Labor 29 U.S.C.A. Standards Act of the mean an order within obtained there is 201-219, depend, seem to should not or regulation, appellee, seeking an ing §§ Act,, depend, upon vegeta- main the water content of exemption from has not produced by appellee’s proof3 that the zan bles burden tained its orders, many as twen jeros their receive say: “We unable My are single zanjero, while ty day suggestion per- agree with away * “customarily regularly engaged * * supplying deemed sons employer’s place from their included within the Act then so would be * likely * * contrary, con On business.” persons engaged man- received them that the dition is ploughshares ufacture of harness home office did telephone his or an at sold farmers.” plow horses or tractors daily rounds of making them not solicit any suggestion and I am not aware of territory. his farms within upon hence do not feel called disagree therewith. is reversed. judgment The Gonzales, D.C.E.D.Pa., . v. American Stores v Bowie F.Supp. 511, Fleming Hawkeye 11, 16; But Pearl 517. 52, 56; Flem- ton dif- no My “We can see wa- appellants lifting ference between laterally to- directing vertically ter it into ward which channel roots itself, the mechanics pieces of metal into the channels automatically a machine which manufac- pens clips.” I know pins tures wire If such mechanics. nothing exist, them we are not concerned compare and have occasion to them with appellants. judgment should be reversed. McClain, Lima, Elmer Ohio, for
pellant. Johnson, Bluffs, Oscar E. of Council JOHN HANCOCK MUT. PETERSON (D. Stuart, Iowa both of Council L. Ross and Robert M. LIFE INS. CO. Bluffs, Iowa, brief), on the No. 12821. Appeals, Eighth Court Circuit. Before GARDNER, Circuit JOHNSEN, Judges. RIDDICK, Circuit July 10, Rehearing July 27, 1944. Denied RIDDICK, Judge. appeal This is an judgment from a ain *7 proceeding farmer-debtor under Bank-
ruptcy Act, 11 seq., U.S.C.A. af- et § firming an of a order commis- conciliation fixing sioner premises. the rent on farm argument At the the submission on case, of the appellant presented motion asking that we receive as a appeal record on certain documents which Court, District a hearing after on question, held were not introduced in evi proceedings dence with which this appeal is concerned and were not to be found either in the proceed records ings before the conciliation commissioner Nothing or before court. appearing record before indicate us that these findings of below were errone ous, the motion is denied. merits, On facts are that conciliation commissioner the 13th day January, entered an order placing farmer-debtor, appellant, possession premises involved this proceeding years three for a from March providing appellant should pay year an annual rental of $400 commencing March in two install-