James D. Hodgson, Secretary of Labor, Etc. v. Twin City Foods, Inc., a Corporation

464 F.2d 246 20 Wage & Hour Cas. (BN 804, 68 Lab.Cas. P 32,730 James D. HODGSON, Secretary of Labor, etc., Plaintiff-Appellant, v. TWIN CITY FOODS, INC., a corporation, Defendant-Appellee. No. 26425. United States Court of Appeals, Ninth Circuit. July 10, 1972. Sylvia S. Ellison (argued), David A. Drachsler, Carin Ann Clauss, Bessie Margolin, Washington, D. C., Altero D. D'Agostini, San Francisco, Cal., Peter G. Nash, Solicitor of Labor, Washington, D.C.; Stan Pitkin, U. S. Atty., Seattle, Wash., Donald F. Rector, San Francisco, Cal., for plaintiff-appellant. Bradley T. Jones (argued), of Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for defendant-appellee. Before HAMLIN, MERRILL and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: 1 The Secretary of Labor brought this action under 29 U.S.C. Sec. 217 , to enjoin the defendant, a frozen food processor, from violating the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. Secs. 201 et seq. The district court held that the activities in question were exempt from the Act's overtime requirements under 29 U.S.C. Sec. 207 (c) and (d), and refused to issue the injunction. The Secretary appeals and we affirm.…

The Secretary of Labor brought this action under 29 U.S.C. § 217 , to enjoin the defendant, a frozen food processor, from violating the overtime provisions of the Fair Labor Standards Act, 29 U. S.C. §§ 201 et seq. The district court held that the activities in question were *247 exempt from the Act’s overtime requirements under 29 U.S.C. § 207 (c) and (d), and refused to issue the injunction. The Secretary appeals and we affirm.

FACTS

Defendant is engaged in processing fresh vegetables, operating a plant at Ellensburg, Washington, at which harvested fresh produce is cleaned, graded, frozen, stored, and eventually packaged into final salable form. Fresh produce is received and processed at the plant during the harvest season, approximately August-December. When frozen it is usually stored in bulk containers in a cold storage warehouse before being repacked in final salable form. This is done because (1) the packaging facilities are of insufficient capacity to package all of the fresh crops into ready-for-sale form as they are harvested and received during the season, and (2) defendant is a supplier for institutional buyers and private brands and does not know at the time of…

(dissenting) :

At issue is the power of the Secretary, by regulation, to define those fresh fruit and vegetable industries qualifying under either 29 U.S.C. § 207 (c) or § 207(d) as not including “operations performed in connection with fresh fruits and vegetables which have been frozen * * * or otherwise changed so that they are no longer perishable or in their raw or natural state.”

By this definition employees engaged in operations upon frozen foods are in an “industry” distinct from those engaged in operations upon fresh fruits or vegetables. 1 Thus an industry line may bisect a single factory.

The majority holds that the Secretary has no power so to define industry. I disagree. The characterization of industry in § 3(h) of the Act indicates the latitude given the Secretary.

Mitchell v. Oregon Frozen Foods Co., 254 F.2d 116 (9th Cir.1958), affirming 145 F.Supp. 157 (D.Ore.1956), on which the majority relies, does not deal with our problem. There the District Court was called upon to define “first processing,” since no agency was authorized to do so. Subsequently the Act was amended to authorize the Secretary to make definitions such as this which, at the time of the…