McComb v. Hunt Foods, Inc. , 167 F.2d 905 ( 1948 )

BONE, Circuit Judge.

This is an appeal from a judgment of the district court in an action under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The facts and the legal issues involved are fully discussed in the opinion of the lower court.¹

The issues here are clearly and concisely presented in the briefs of the parties. Appellant says the question is

“Whether the defendant’s operations with respect to apple peelings and cores received from dehydrating plants constitute ‘the first processing of * * * fresh fruits’ either (1) within the meaning of the Administrator’s regulation promulgated under Section 7(b) (3) of the Act, or (2) within the meaning of Section 7(c) of the Act.”

Appellee states the questions as:

“(1) Are the employees engaged in the production of apple 'juice, fermented apple cider and pomace at appellee’s Graton plant within the exemption and exception from the Maximum Hour provisions afforded by Section 7(c) of the Fair Labor Standards Act of 1938 (29 U.S.C.A., Sec. 207(c)) ? and

“(2) Are the employees engaged in the production of apple juice, fermented apple cider and pomace at appellee’s Graton plant within the exemption and exception from the Maximum Hour provisions afforded by Section 7(b) (3) of the Fair Labor Standards Act of 1938 (29 U.S.C.A., Sec. 207(b) ,(3))?”

;['1,2] The Fair Labor Standards Act was fashioned to accomplish certain results — to benefit labor and also to make specific beneficial exemption provisions for a certain class of employers described in the Act. Whatever the motive of Congress in so framing this type of “double-barreled” legislation, the fact remains that its provisions must be read and applied as a whole. The exemption provisions clearly indicate a deliberate purpose on the part of Congress to exclude certain business operations from the sweep of the statute. This obvious purpose is noted and recognized in-the language of the lower court where it stated:

“The policy of protection to the growers of ‘perishable and seasonal fresh fruits’ is of as much force as that'of the protection of general industrial workers. The objective of a uniform rule for hours and wages in manufacturing should not be allowed to prevail over the paramount necessity of garnering and preserving fruits and grains and the protection of those who grow them when Congress equally recognized both in the Act. The hypertechnical reasoning concerning ‘exceptions’ and ‘exemptions’ has no place here. A direct expression of non-applicability constitutes neither.”

This is but another way of saying that if the business operations claimed to be exempt are found to fall within the exempt classification, the statute is, as to them, a “remedial” statute. We agree with the lower court that no formalistic characterization should be permitted in dealing with any of these clauses since the plain intention of the statute should be carried out.

The Wage and Hour Division has recognized the clear intendment of the statute in this language:

“The purpose of Section 7(c),"as shown by the legislative debates, was to -relieve processors and packers of seasonal agricultural commodities from the burden of paying overtime compensation during those peak seasons of the year when' large fluctuating quantities of perishable agricultural commodities move from the farms to the processing establishments, which commodities must be processed as soon as they arrive.” Wage and Hour Release No. 1892, Jan. 25, 1943.²

Are the materials used by appellee “perishable or seasonal fresh fruits ?” That the apple cores, peelings and culls (or small whole apples) used by appellee are perishable and seasonal in nature is clear. The small whole apples, which constituted 10 to 28% of the materials used by appellee, are “fresh fruits.” However, appellant urges that the peelings and cores are not fresh fruits within the meaning of the statute (notwithstanding they are perishable). There is nothing in the statute or in its legislative history to call for the conclusion that such fruits as it refers to must be whole or must be in an edible state. The fact that the whole apple has been cut up does not lead to the conclusion that the resulting parts of the apple are not still in a raw and natural state, any more than if the apple had been merely dimidiated. Appellant states that the Administrator has interpreted “fresh fruits” to mean fruits “in their raw or natural state as distinguished from them after they are ‘processed,’ canned, or dried.” The peels and cores used by appellee had not been processed when appellee acquired them any more than the main edible portion of the apple had been processed upon its being peeled and cored. By appellant’s own definition therefor, the peels and cores are no less fresh' fruit than the portion of the apple from which they have been removed.

Was appellee engaged in “first processing” within the meaning of the statute? The word “process” by definition means a series of acts, and the test of when “first processing” ends is obviously not when the first act performed upon the fruit is done (it might well be “first processed” by a preliminary washing of the apples if this view was sound). A more rational view suggests the conclusion that the sum of several operations may well constitute a “process” or “processing.” The cutting and peeling admittedly does not end the first processing of the major part of the apple which is later dehydrated, yet appellant maintains that the first processing (so far as the peels and cores are concerned) has ended at this point, while these parts of the apple have in fact not yet been “processed” in any manner and have yet to be converted into juice or pomace. This argument does not appeal to us.

The Administrator has not attempted to exclude from the statute in question those who extract tomato puree from the residue remaining after the whole tomato is canned, yet there would seem to be little material and practical difference between such an operation and the one in the case at bar.

Whether dehydrating one part of the apple and making of juice and pomace from other parts of the same apple is accomplished on a continuous production line under one roof, or is accomplished by dividing the practically simultaneous operations between two adjacent producers, would seem to be irrelevant. The dehydrating, and making of juice and pomace are all part and parcel of the speedy and continuous process of converting the perishable apple into a non-perishable salable product. Appellant himself concludes that the first processing exemption “was designed to cover only those integrated activities which are part of the continuous operation of converting the whole fresh fruit, as it comes from the farm, into a non-perishable productA (Emphasis supplied.) If this hurried and continuous process is deemed to end when part of the apple (the peels and cores) has not been processed at all and is still in its natural and perishable state, what seems to us to be the logical objective of the exception to the forty hour week requirement is frustrated, and a large proportion of this part of the fruit may easily become a total loss.

Resort to other phrases of the statute covering operations in other industries, such as “slaughtering,” or “dressing poultry or livestock,” cannot be had to defeat the patent purport of the words specifically applying to those engaged in the “first processing of * * * perishable or seasonal fresh fruits or vegetables.” We do not impute to Congress the doing of a useless thing in employing the word “first” before the word processing, but the language, available history, and what we believe to be the clear purpose of the statute, cannot but lead to the conclusion that so long as the fresh fruit, in whole or in part, has not been converted into a non-perishable form; so long as a “converting” process continues which can not be safely halted prior to its consummation, the “first processing” of which the statute speaks, has not been ended.

It is not necessary to emphasize the point that since the Fair Labor Standards Act is a remedial act, persons and/or business operations claiming to come within exemptions' therein must bring themselves within both the letter and the spirit of the exceptions, which are subject to a strict construction. Due and proper deference to this principle does not call upon us deliberately to overlook or disregard a Congressional direction to apply all of the remedial provisions in accordance with the clearly expressed purposes of the Act. We agree with the conclusion of the trial court that the “remedial” provisions apply to activities excepted by the statute to the same degree and in as full measure as those which by their nature were intended to be brought, in their entirety, within the orbit of the statute, if it is made clear by the evidence that the claim of “exception” is supported by adequate proof. In such event, the Act is “remedial” as to the activities claimed and proven to be excepted, and its remedial provisions inure to the benefit of those shown to be engaging in such excepted activities.

Under the most narrow construction we are, for the reasons indicated above, constrained to the view that appellee must prevail. We regard its operations, as revealed by satisfactory evidence, to be of a character which brings it “plainly and unmistakably within the terms and spirit” of the exemption provisions of the Act.

Three experienced trial judges faced the problem here posed (see footnote 1) and arrived at the conclusion we reached, and this uniformity of judicial expression in the district courts is significant and impressive.

The judgment of the district court is affirmed.

1 Walling v. California Conserving Co., D.C., 74 F.Supp. 182. See also McComb v. C. H. Musselman Co., D.C., 74 F.Supp. 185 and Hendricks v. DiGiorgio Fruit Corp., D.C., 49 F.Supp. 578, both cases dealing with a similar state of facts.

2 In argument here, counsel for appellant assured us that the exemption issue was the only one in which appellant was interested.