Petition for Writ of Certiorari — Burton Mercantile & Gin Co. v. Wirtz

Othce Supreme Court, U.S.

' ! FILED

~ + & FEB 15 1965

JOHN B& DAS, CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1964

i?URTON MERCANTILE AND GIN CoMPANY, INC.,

Petitioner

v.

W. Wuiarp Wirtz, Secretary of Labor,

Unitrep STrates DEPARTMENT oF LABor, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS,

_ EIGHTH CIRCUIT

WAYNE Boyce

Frep M. PICKENS, JR.

Counsel for Petitioner

Press oF Byron S. ADAMS, WASHINGTON, LC. C.

INDEX

Page

Teena Oe CE, RII ss loa s Sysa ce pcackuestveses 1

RE arabia Cited f.tet cant adoa vane ee anes 2

I iw Ae ap eS aie bale wanes aes 2

NR EO he ha aceite naeu énuiileeuaean b+

I on sari es eh ove ewes 2

Basis for federal jurisdiction ..............-.0.00. erat,

Reasons for granting the writ ....................0.

Ce I asst Cone eon we tren haan iesey aes la

CITATIONS

Maneja v. Waiaulua, 349 U.S. 254, 75 Supreme Court

CE ios che Cae ees Pe Eds Sa ee eee ee 3

MeComb v. Consolidated Fisheries, 174 Fed. 24 74... 5

Mitchell v. Tradewinds Co., 229% Fed. 2d 278 ......... 9

Waller v. Humphreys, 133 Fed. 24 193 .............. 3

Fair Labor Standards Act of 1938, as amended, 29

USCA 201:

ee ee io ees cas sews ewan eee 2,3

Wee Or te oa esis dncaesccawenees 2,3

es Se I CEP a hve a a Wie a sa sem eeee es 2

IN THE

Supreme Court of the United States

OcToBER TERM, 1964

No.

Burton MERCANTILE AND Gin Company, INC.,

Petitioner

v.

W. Witiarp Wirtz, Secretary of Labor,

Unirep States DEPARTMENT OF LABOR, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS,

EIGHTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Eighth Circuit entered in the above

entitled case on November 17, 1964.

CITATION TO OPINION BELOW

The opinion of the Court of Appeals for the Eighth

Circuit in the above case is reported in 338 Fed. 2d 414.

2

JURISDICTION

The judgment of the Circuit Court of Appeals was

entered on November 17, 1964. The jurisdiction of

this court is invoked under 28 USCA, See. 1254 (1).

QUESTION PRESENTTD

Are the employees of the petitioner’s gin entitled to

a year round exemption from the application of the

Fair Labor Standards Act?

STATUTES INVOLVED

The statutory provisions :nvolved are Sections 13 (a)

(10) and Section 13 (a) (18) of the Fair Labor Stand-

ards Act of 1938 as amended.

STATEMENT

The petitioner, Burton Mercantile & Gin Company,

is a family agricultural corporation operating rather

extensively in the south end of Jackson County, Arkan-

sas. It is engaged in the production of cotton, rice

and soybeans and in the operation of elevators, rice

driers and two cotton gins which are the subject of

this action. While David Paul Burton is primarily

responsible for the operation of the gin at Tupelo, his

brother, Owen Burton, is in charge of the gin at

Beedeville. The stipulations in this case show that

the Burtons have interchanged their employees from

place to place as work required so that the gin em-

ployees may be assigned to farm work when they are

not needed at the gin and farm employees may be

assigned to gin work when there is no work to be done

in the fields. Not by the wildest stretch of the imagi-

nation could Burton’s Gin and Store be called a sweat

3

shop. This simply was not the type of industry that

the Fair Labor Standards Act was aimed at.

As Mr. Justice Brown said in a concurring opinion

in Maneja v. Waiaulua, 349 U.S. 254, 75 Supreme

Court 719, at page 731:

‘‘ As I see it, the statutory definition of agriculture

describes a major activity which lies beyond the

outer limits of the Fair Labor Standards Act.

Agriculture is not an exception carved out o7 the

jurisdiction of the act. Congress never proposed

to apply the act to agriculture. To any extent

that the act impinges upon agricultural activities,

those impingements are themselves exceptions to

the general freedom that characterizes agricultural

employment.”’

It is the position of the Labor Department that the’

cotton gin exemption to the Fair Labor Standards Act

found in 29 USCA 213 (a) applies to the Burton Gin

only between those periods in the year when the first

and last bale of cotton has been ginned, and that it

does not apply at all to the clerical employees of the

gin.

The defendants coutend that under Section 13 (a)

(10), the Agricultural Exemption:

‘‘ Any individual employed within the area of pro-

duction (as defined by the Secretary) engaged in

handling, packing . . . drying, preparing, in their

raw or natural state... of agricultural... com-

modities for market ...’’

and Section 13 (a) (18):

‘‘Any employee engaged in ginning of cotton for

market in any place of employment located in a

county where cotton is grown in commercial quan-

tities.’’

4

gives them a year round exemption for all the gin

employees inclading the clerical employees.

In order to run a cotton gin it is necessary to clean

up the gin after the last bale of cotton has been

ginned to get all lint and seed out of the gin to prevent

the spread of pink boll worms. This clean-up is rf-

quired by the regulations of the State of Arkansas.

This work must of necessity be done after the last bale

has been ginned. In addition, it is necessary sometime

during the spring or summer to tune up and repair

the gin machinery in order that it will be in running

shape when the first bale is ginned. Under the in-

terpretation the Administrator of the Wage & Hour

Division of the exemptions quoted above this clean-up

and tune up work is not exempt. The petitioner urges

that the clear intent of Congress’s act and amendment

was to exempt this work as well as the operation of the

gin between the dates of the first and last bale.

The Secretary of Labor sought an injunction against

the petitioner in Federal District Court of the East-

ern District of Arkansas, which injunction was

granted. The judgment of the District Court was ap-

pealed to the Eighth Circuit Court of Appeals.

BASIS FOR FEDERAL JURISDICTION

Fair Labor Standards Act, 29 USCA 201, as

amended.

-

““ REASONS FOR THE ALLOWANCE OF THE WRIT

_~—~= While this particular exempcion of the Fair Labor

Standards Act has never before been decided by a

Court of Appeals, closely analogous exemptions have

been considered by other circuits with results contrary

to the holding in this case. In a number of cases in-

5

volving the fishing itdustry an exemption very similar

to the cotton gin exemption was interpreted as exempt-

ing employees during the dormant season; Waller v.

Humphreys, 133 Fed. 2d 193; McComb v. Consolidated

Fisheries, 174 Fed. 2d 74; Mitchell v. Tradewinds Co.,

288 Fed. 2d 278.

The determination of the cxtent of the application

of the cotton gin exemption to the Fair Labor Stand-

ards Act is a question which affects every cotton gin

in the United States and to a degree the entire agri-

culture economy of the cotten producing areas. The

United States Department of Labor has shown an in-

tention to continue seeking injunctions such as the one

in the present case and compelling cotton gin owners

to comply with their interpretation of the exemption

as approved by the Court of Appeals in this case.

Respectfully submitted,

Wayne Boyce

Frep M. PIcKENs, JR.

209 Walnut Street

Newport, Arkansas

Counsel for Petitioner