Petition for Writ of Certiorari — Jiffy June Farms, Inc. v. Coleman

TICE’ COPY |;

Supreme Court, U. S$.

FILED

AUG 2 1972

IN THE

MICHAEL RODAK, JR.,CLERK

Supreme Court of the United States

OCTOBER TERM, 1972

No. 2- 182

JIFFY JUNE FARMS, INC., ET AL.,

Petitioners,

versus

ARTHUR COLEMAN, ET AL., AND JAMES D.

HODGSON, SECRETARY OF LABOR, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Willis C. Darby, Jr.

Counsel for Petitioners

Post Office Box 2565

Mobile, Alabama 36601

POE IME TE?

SPIER ROE Ly

INDEX

REASONS FOR GRANTING THE WRIT:

1. The Decision Below Is In Conflict With A

2. The Questions Presented Are Of Major

Importance Within The Field Of Labor

Relations Because:

A. The Role Of Grievance Machinery

In Matters of Alleged Statutory Vio-

lation Is Unclear After The Deci-

en a ee ee ee

B. The Extension Of The De Minimis

Rule By The Court Below Limits The

Motor Carrier Exemption Substan-

C. The Term “Willful” As It Applies to

FLSA Violations Is Undefined By

3. There Were Errors In The Decision Of

The Court Below Because:

A. The Court Below Disregarded The

Previous Grievance Settlement On

CITATIONS TO OPINIONS BELOW .............

Dy et a ee

QUESTIONS PRESENTED .............--..-:--

STATUTES INVOLVED ..............------050>

STATEMENT OF THE CASE ............------:

Decision Of Another Court Of Appeals ...

TO Tere ee ee

Ny ee Ea SL aoe ar ae

Improper Grounds ..............-..

ii

INDEX (Continued)

Page

B. The Court Below Misinterpreted The

we Gimmie Bide ....... 2.000 15

C. The Court Below Erroneously De-

clared Goods Not To Be In Com-

ae aah I, Sate A has Seal ee ie 17

D. The Court Below Defined A “Willful”

Violation Too Broadly .................. 18

4. The Decision Below Conflicts With the

Motor Carrier Safety Regulations Issued

by the Department of Transportation...... 18

SP 2 ee ee eee he” 20

INDEX TO APPENDICES

APPENDIX A

Part I — Pertinent Statutory Provisions ....... la

Part II — Pertinent Regulations ............... 6a

APPENDIX B

Part I — Opinion and Judgment of the Trial

ee gw... oe ek. An eee 12a

Part II — Opinion and Judgment of the Court

; of Appeals, Including Denial of the

Petition for Rehearing. ............. 28a

APPENDIX C

Part I — Map and Mileage Chart of Florida

RN eA ea ocr tian pate Meet 42a

m

a ten bk eae a a ea rota ia Se dead ea an totic a J

iii

INDEX (Continued)

Part II — Relative Possibility of Driver mak-

ing Interstate Trip, September 9,

1966, Through January 29, 1969.......

CITATIONS

CASES: so

Crooker v. Sexton Motors, Inc., D. C. N. H.

1972, 20 W. FT. GEO... 2.5 ete eee

Dowd v. Blackstone Cleaners, D. C. Tex. 1969,

908 F. Supp. 1276 ... cee eee eee

Ex Parte MC-3, Motor Carrier Safety Regu-

lations - Private Carriers, 23 M.C.C. (f)

a Ser rt ey eae

Gefen v. United States, 400 F2d 476 (5th Cir.

i tes camser as Cae etna REE SAD RE

Seer eM ar ea I hay hare eye Re

Krumbeck v. John Oster Mfg. Co., D. C. Wisc.

1970, 313 F. Supp. 257 ......--.------ eee:

Melton v. Round Table Restaurants, Inc.,

D. C. Ga. 1971, 20 WH 532 .............--.

Morris v. McComb, 332 U.S. 442, (1947) ........

Pyramid Motor Freight Corp. v. Ispass, 330

U.S, 695, (1946) ...... 0.6 eee eee eee eens

Starrett v. Bruce, 391 F2d 320 (10th Cir. 1968),

cert. denied 393 U.S. 971 .............----.

. oe —_

eT, pe

=

iv

CITATIONS (Continued)

Page

Walling v. Jacksonville Paper Co., 317 US.

Mee recy h ae eA 2 hay 6k eu ileeis x 5 17

Wirtz v. C and P Shoe Corporation, 336 F2d

ee 16

STATUTES:

Department of Transportation Act, 1966:

(Public Law 89-670, October 15, 1966,

80 Stat. 931, 49 USC § 1651 et seq.)

Section 6(e)(6)(c), 49 USC § 1655(e)(6)(c) .... 3

Fair Labor Standards Act, 1938:

(c. 676, 52 Stat. 1080, as amended, 29 USC

§ 201 et seq.)

Section 7, 29 USC § 207.................. 4, 5

Section 13(b)(1), 29 USC §213(b)(1)...... 4, 5

Section 15(a)(2), 29 USC § 215(a)(2)...... 4

Section 16(b), 29 USC § 216(b) ............ 4,5

Section 17,29 USC §217.................. 4,5

Motor Carrier Act, 1935:

(c. 498, 49 Stat. 543, as amended, 49 USC

§ 301 et seq.)

Section 203(a)(10), 49 USC § 303(a)(10) .. 4, 10

Section 204(a)(3), 49 USC § 304(a)(3) .... 4,9

Portal-to-Portal Act, 1947:

(c. 52, 61 Stat. 84, as amended by Section

601 of the Fair Labor Standards Amend-

=

Vv

CITATIONS (Continued)

Page

ments of 1966, 80 Stat. 830, 29 USC 251, et

seq.)

Section 6(a), 29 USC 255(a) ......--.- 0+) 4,13

REGULATIONS:

Motor Carrier Safety Regulations, 1971:

(49 C.F.R. Parts 390-397)

49 CLF.R. § 390.32 .......... cc ereeeeeeeeeee: 19

40 C.F-R. § 300.88 0.0... ccc cece eee e ene: 19

49 C.FLR. § BOGS ..... 0. ccc cece eee encees 20

49 C.FLR. § 305.8(t) ......ccccec erence renee 20

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

JIFFY JUNE FARMS, INC., ET AL.,

Petitioners,

versus

ARTHUR COLEMAN, ET AL, AND JAMES D.

HODGSON, SECRETARY OF LABOR, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

PFTITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR TH® FIFTH CIRCUIT

Jiffy June Farms, Inc., et al.," pray that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit, entered

in Arthur Coleman, et al.,2 v. Jiffy June Farms, Inc.,

et al. and James D. Hodgson, Secretary of Labor,

United States Department of Labor, v. Jiffy June

Farms, Inc., et al. on November 29, 1971; as to which

a motion for re-hearing was denied on May 17, 1972.

‘Jiffy June Farms, Inc., Jiffy Poultry, Inc., and Robert A. Trainor,

Jr.

2Arthur Coleman, Willie Williamson, L. C. Pettway, Elijah Black,

Earnest Coleman, Eddie Lee Yelder, Earnest Tolbert and Joseph

Simon.

;

a ii bs ie ea lla Na ak a

.

‘

‘

7

4

2

CITATIONS TO OPINIONS BELOW

The opinion of the district court (R. 291-307), printed

in Appendix B hereto, infra, p. 12a, is reported in 324

F. Supp. 664. The opinion of the court of appeals,

printed in Appendix B hereto, infra, p. 28a, is reported

in 458 F2d 1139.

JURISDICTION

The judgment of the court of appeals was entered on

November 29, 1971. Rehearing was denied on May 17,

1972. The jurisdiction of this Court is invoked under

28 USC Section 1254(1).

QUESTIONS PRESENTED

Whether employees, or the Secretary of Labor acting

in their behalf under the authority of 29 USCA § 217,

may sue in court to recover overtime allegedly with-

held in violation of the Fair Labor Standards Act if

prior to the filing of the action the employees had been

finally determined to be exempt from the overtime

provisions of that act through grievance procedure es-

tablished by grievance and arbitration provisions of

a collective bargaining agreement without alleging

and proving that the union of which they were mem-

bers breached its duties of fair representation in its

handling of the employees’ grievance.

_

Whether, under the de minimis rule, the Secretary

of Transportation? is denied the power under § 204

of the Motor Carrier Act, 1935, to establish qualifica-

tions and maximum hours of service for a group of

full time truck driver-loaders, numbering from ten to

twenty-one, employed by a poultry and egg distribu-

tor, where any of them may be selected each week

to make one or two trips across state lines and any

of them, three or more times a week, may be selected

to transport goods that originated out of state from

a public warehouse to the distributor’s place of busi-

ness.

Whether an employer acting in good faith and having

reasonable grounds for believing that his acts or omis-

sions were not in violation of the Fair Labor Standards

Act committed a “wiliful violation” within the mean-

ing of the term as used in Section 6(a) of the Portal-to-

Portal Act of 1947, as amended, 49 U.S.C.A. 225(a) by

withholding overtime compensation from employees

thought to be exempt.

STATUTES INVOLVED

Department of Transportation Act, 1966:

(Pub. L 89-670. October 15, 1966, 80 Stat. 931,

49 USC 1651 et seq.)

Section 6(e)(6)(c), 49 USC 1555(e)(6)(c)

8This power was originally vested in the Interstate Commerce

Commission. However, Public Law 89-670, October 15, 1966,

80 Stat. 931, which created the Department of Transportation,

transferred this power to the Secretary of Transportation.

eee

4

Fair Labor Standards Act, 1938:

(c. 676, 52 Stat. 1060, as amended, 29 USC 201

et seq.)

Section 7, 29 USC § 207

Section 13(b)(1), 29 USC § 213(b)(1)

Section 15(a)(2), 29 USC § 215(a)(2)

Section 16(b), 29 USC § 216(b)

Section 17, 29 USC § 217

Motor Carrier Act, 1935:

(c. 498, 49 Stat. 543, as amended, 49 USC § 301

et seq.)

Section 203(a)(10), 49 USC § 303(a)(10)

Section 204(a)(3), 49 USC § 304(a)(3)

Portal-to-Portal Act, 1947:

(c. 52, 61 Stat. 84, as amended by section 601

of the Fair Labor Standards Amendments of

1966, 80 Stat. 830, 29 USC 251 et seq.)

Section 6(a), 29 USC 255(a)

STATEMENT OF THE CASE

On January 29, 1969, Arthur Coleman and seven other

named individuals brought a civil action to recover

overtime compensation alleged to be due from August

19, 1966, liquidated damages, cost, and attorney fees

from Jiffy June Farms, Inc. (Jiffy Farms), Jiffy Poul-

try, Inc. (Jiffy Poultry), and Robert A. Trainor, Jr.

{Trainor); pursuant to Section 16(b) of the Fair Labor

_

b)

Standards Act, as amended, 29 U.S.C. § 216(b). (R.6-

15, R.38-40)

On January 31, 1969, George P. Shultz, Secretary

of Labor (Hodgson), brought a civil action, pursuant

to Section 17 of the FLSA, 29 U.S.C. § 217, to enjoin

Jiffy Farms, Jiffy Poultry, and Trainor from violat-

ing the overtime provisions of the Fair Labor Stand-

ards Act, and to restrain each of them from withhold-

ing payment of overtime compensation allegedly due

unnamed employees of Jiffy Farms, Jiffy Poultry, and

Trainor. (R.52 et seq.)

Jiffy Poultry admitted that it was subject to the Fair

Labor Standards Act and that it had paid no overtime

compensation to its truck driver-loaders (R.17-21, 57,

107). Jiffy Poultry contended that its truck driver-load-

ers were exempt from the overtime provisions of Sec-

tion 7 of the Fair Labor Standards Act, 29 U.S.C.

Standards Act, 29 U.S.C. § 213(b)(1) (R. 22, 60), be-

§ 207, pursuant to Section 13(b)(1) of the Fair Labor

cause its truck driver-loaders were subject to selec-

tion to make one or two trips weekly across the state

lines and three or more trips weekly to transport goods

originating out of state from a public warehouse to

its place of business.

Jiffy Poultry also contended that the matter of the

exemption of its truck driver-loaders had been finally

determined through the grievance procedure estab-

lished by the collective bargaining agreement cover-

ing those employees. (R.22, 59-60). Jiffy Poultry con-

tended further that it had acted in good faith in the

6

payment of wages of its truck driver-loaders (R. 23,

60).

The Coleman Action and the Hodgson Action were

consolidated (R. 111).

On December 28, 1970, the district court made find-

ings of fact. Among them were the following:

Jiffy Poultry regularly made sales and deliveries

from Alabama through Florida and back to Alabama

as well as small sales and deliveries to Florida. (App.

B, p. 14a).

Drivers were not assigned to a particular truck nor

to particular routes, but would receive their truck and

route assignments on the day the trucks left Jiffy Poul-

try (App. B, p. 15a).

The drivers picked up and delivered to Jiffy Poultry

marked fiberboard boxes purchased from Interna-

tional Paper Company which had been shipped from

South Carolina and Florida to a warehouse in Mobile,

Alabama (App. B, p. 15a). (The boxes were imprinted

with Jiffy Poultry’s trademark. R.153).

Employee-union members became dissatisfied with

their failure to receive overtime pay, and a grievance

hearing was had at which it was agreed that senior

employees would be given all time possible over forty

hours per week in order to increase their earnings

(App. B, p. 16a).

_——

7

The Department of Labor found that some employ-

ees were exempt (from the overtime provisions of the

FLSA under the Motor Carrier exemption) and some

were not. (App. B, p. 17a).

There was no finding of fact by the district court

that the employees were not fairly represented by the

union. The issue of unfair representation by the union

was not raised in the complaints (R.6-15, 38-40, 52-56),

the pre-trial submission (R.100-111), or the order on

pre-trial hearing (R.111-114). No evidence was offered

to show any alleged unfair representation or failure

on the part of the union to provide aggrieved employees

with fair and vigorous representation.

The conclusions of law by the district court included

the following:

The safety-affecting aspects of the Florida deliveries

were minimal, involving as they did, light weight loads

and deliveries to a community located on the Alabama-

Florida border (App. B, p. 22a).

The fiberboard boxes ceased to be in commerce

when they reached the warehouse (App. B, p. 24a).®

4One of the plaintiffs, Earnest Tolbert participated in the grievance

hearing as shop steward. (R. 194-195).

SThere was nothing in the record to support the statement in the

Conclusions of Law at App. B, P. 24a that “shipments... were

the property of Jiffy Poultry and were placed in warehouse

space leased to Jiffy Poultry ...” as it applies to the boxes.

The only evidence bearing on the title to the boxes (R. 205-

207, 228) and the leasing of the space (R. 205) indicated that

the boxes belonged to International Paper until picked up by

the employees of Jiffy Poultry and that the warehouse space

was not leased by Jiffy *.ultry (R. 205-207, 228).

8

The “minimum of evidence of interstate activity

which is minimal in its scope and minimal in its na-

ture” did not support the claim of exemption of the

truck driver-loaders from the overtime provisions of

the Fair Labor Standards Act (App. B, p. 25a).

Jiffy Farms, Jiffy Poultry and Trainor had acted

in good faith and had reasonable grounds for believ-

ing that the acts or omissions were not in viclation

of the Fair Labor Standards Act (App. B, p. 26a).

On December 28, 1970, the district court issued an

injunction enjoining Jiffy Farms, Jiffy Poultry, and

Trainor from withholding the payment of back wages

for three years prior to the commencement of the

Hodgson action and from violating Section 15(a)(2) of

the Fair Labor Standards Act. (R. 92).

On November 29, 1971, the decision of the district

court was affirmed by the court of appeals. Appendix

B, infra, p. 29a. The opinion set forth a definition of

“willful” — “the employer knew or suspected that his

action might violate the FLSA.” Appendix B, infra,

p. 33a. (The district court applied a three year period

of limitations, but it had not defined the term “willful”

nor had it made any finding that the violation was

“willful”. )

On petition for rehearing, May 17, 1972, the court

of appeals reiterated its construction of Section 255(a)

of the FLSA and rejected the contention that the mat-

ter of the exemption of the truck driver-loaders from

the overtime provisions had been settled through the

: _ Sete? SAAT NE ES eR IEE ee Ee

QO. GES OEE SEO -

-—

grievance procedure, terming the settlement of the

grievance a “hopeless charade” because the employ-

ees were “not fairly represented.” Appendix B, infra,

p. 40a.

This petition for a writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Is In Conflict With A De-

cision Of Another Court Of Appeals.

The decision of the court below regarding the appli-

cability of the overtime provisions of the Fair Labor

Standards Act is directly in conflict with that of the

Tenth Circuit in Starrett v. Bruce, 391 F2d 320, (10th

Cir. 1968) cert. denied 393 U.S. 971.

This conflict exists between the conclusion of law

made in the instant case that the minimal scope and

nature of the truck driver-loaders’ interstate activities

prevent the application of the motor carrier exemption

for overtime and the holding of the Tenth Circuit in

Starrett v. Bruce that the character of the employ-

ees’ activities rather than the proportion of either his

time or activities determines the actual need for the

ICC’s power to establish qualifications and maximum

hours of service, under Section 204 of the Motor Car-

rier Act of 1935.

In Starrett v. Bruce a truck driver who was em-

ployed for ten months by an employer who derived

no income from transportation of goods in interstate

ees

10

commerce® during the driver’s employment, but who

actively sought and would have accepted interstate

business,” was held to be a truck driver subject to

the jurisdiction of the ICC and exempt from the over-

time provisions of the FLSA. In the instant case, how-

ever, the court below held the limited interstate ac-

tivity of the truck driver-loaders insufficient to justify

the motor carrier exemption. (R.306)

The district court took notice of the principle that

the substantiality of the effect of the efforts rather

than the amount of time spent on safety related activi-

ties is important in granting the motor carrier exemp-

tion. (R.302) The decision turned, however, not on

whether driving is a safety-affecting activity (it is)

nor on whether the truck driver-loaders spent most

of their time driving (they do) but on how much inter-

State activity there was.

Starrett v. Bruce considered the percentage of in-

terstate activity to be irrelevant as long as the em-

6The Motor Carrier Act defines “interstate commerce” as ‘“com-

merce between any place in a State and any place in another

State or between places in the same State through another

State, whether such commerce moves wholly by motor vehicle

or partly by rail, express, or water.” 49 USC § 303(a)(10)

7The court below drew a distinction between common and private

carriers on the grounds that the percentage of business having

an interstate nature is relevant for private carriers but not for

common carriers because a common carrier’s interstate busi-

ness may fluctuate. This is faulty because a private carrier’s

interstate business may fluctuate as well (R. 301) and because

the need for safety of operation is the same for both sorts of

carriers. See Ex Parte MC-3, Motor Carrier Safety Regula-

tions - Private carriers, 23 MCC(f) 1 (1940)

SLEEPS OG I I OE NE

ee PLE BRS Pe

—

11

. ployee was engaged in safety-affecting work and the

potential for interstate activity existed.

This court should consider this matter to reconcile

the conflict between these decisions by courts of ap-

peals.

2. The Questions Presented Are Of Major Import-

ance Within The Field Of Labor Relations Be-

cause:

The three questions presented are important in the

field of labor relations because a large number of dis-

putes will arise concerning violations of the overtime

provisions of the Fair Labor Standards Act which are

at the root of the three questions here.

A. The Role Of Grievance Machinery In Mat-

ters Of Alleged Statutory Violation Is Un-

clear After The Decision Below.

The first question deals with the relationship of griev-

ance machinery to determination of the applicability

of the overtime provisions of the FLSA. Among the

important subsidiary questions involved are the effect

that a final determination through grievance proce-

dure culminating in arbitration will have on an action

by employees to recover overtime allegedly due, the

effect of such a determination on a suit on behalf of

the employees by the Department of Labor to recover

such overtime, the necessity of employing grievance

machinery for such a dispute before bringing suit in

court, and the necessity of alleging a defect in

a

12

the grievance procedure when bringing suit on a mat-

ter also subject to determination through grievance

procedure.

The decision of the court below effectively denies

the need to attack the grievance machinery or the re-

sults thereof by allowing recovery of back overtime

after the matter was settled by grievance procedures

without any allegation of defects in the grievance pro-

cedures. Other disputes as to the coverage of FLSA

overtime provisions, both before and after grievance

procedures have been used, are sure to arise in great

numbers, so a settlement of this question by this Court

would be in the public interest.

B. The Extension Of The De Minimis Rule By

The Court Below Limits The Motor Carrier

Exemption Substantially.

The second question deals with the extent of the

motor carrier exemption from FLSA overtime provi-

sions. The use of the de minimis rule by the court

below to fulltime truckdriver-loaders will bring into

dispute the coverage for thousands of employees whose

duties are not primarily transportation of goods

in commerce but who in the normal course of business

engage in such activities from time to time on a regular

basis. Such a case has already arisen in New Hamp-

Shire in Crooker v. Sexton Motors, Inc., 20 WH 659

(D.C.N.H., 1972) where an employee hired to clean

cars and travel] to another state to pick up automobiles

and spare parts was held to be within the de minimis

rol ts ied tae Rak ask FS IAM OR PS TAA AY SMe TA ™» hny i i é ¥¥

—_

13

rule even if he made such trips weekly. The instant

case was cited in support of the application of the de

minimis rule in Crooker. Clearly it would be valuable

for resolution of many such disputes if the court would

consider this question and clarify the de minimis rule.

C. The Term “Willful” As It Applies To FLSA

Violations Is Undefined By This Court.

Finally, a definition of the term “willful” as it ap-

pears in Section 6(a) of the Portal-to-Portal Act of 1947

would be useful in many cases where there is dispute

as to the period of limitations for actions to recover

overtime withheld allegedly in violation of the FLSA.

In addition to the instant case, others which required

definition of this term have already arisen: Dowd v.

Blackstone Cleaners, Inc. D. C. Tex 1969, 306 F. Supp.

1276; Hodgson v. Hyatt, D. C. Fla. 1970, 318 F. Supp.

390; Krumbeck v. John Oster Mfg. Co., D. C. Wisc.

1970, 313 F. Supp. 257; and Melton v. Round Table Res-

taurants, Inc., D.C. Ga. 1971, 20 WH 532. Though these

cases have involved some definition of the term, they

have not been directly concerned as a main issue in the

instant case — whether a willful violation can be com-

mitted in good faith. A definition of the term “willful”

will be important to the settlement of numerous cases

of violations of the overtime provisions of the FLSA.

14

3. There Were Errors In The Decision Of The Court

Below Because:

A. The Court Below Disregarded The Previous

Grievance Settlement On Improper Grounds.

The court below erred in allowing employees and

the Department of Labor acting in their behalf to bring

suit for back wages on a matter that had previously

been settled by a grievance procedure without proving

that the union as bargaining agent breached its duty

of fair representation in the handling of the employ-

ees’ grievance.

The court of appeals held that the grievance pro-

ceeding was a “hopeless charade” since the employees

were “not fairly represented”. Appendix B, infra, p. 40a.

This was error because the fairness of representation

had not been raised as an issue in the complaints (R.6-

15, 41-43, 52-56), the Pretrial Submission (R.100-111),

or the Pretrial Order (R.111-114). Under Rule 16 of

the Federal Rules of Civil Procedure, of course, such

a pretrial order when entered controls the subsequent

course of the action unless modified at the trial to pre-

vent manifest injustice. No request was made that the

order be modified, and no evidence was offered at the

trial on an issue of unfair representation of the em-

ployees.

The court of appeals erred in introducing and decid-

ing an issue not presented at the trial.

SURAT ER RS HAL CONEY BRYN NRE NE RIAA UP PRR MLN Coa eE NN oT : ¥ “hi

Pp

The court of appeals did not address the questions

of whether the grievance had been finally determined

or which of the employees were parties to the griev-

ance,® saying that these questions need not be con-

sidered because the matter could be decided on other

grounds. Appendix B, infra, pp. 38a-39a. Had the griev-

ance not been finally determined or had the employees

not been parties to it, an important question of whether

the employees were required to employ grievance pro-

cedure, and whether they were required to pursue it to

a final determination if they participated, before bring-

ing suit in court. The court below erred in treating suit

in court as an alternative to the grievance procedure

culminating in arbitration established by the collec-

tive bargaining agreement without proof of some defect

in the grievance procedure.

15

B. The Court Below Misinterpreted The De Mi-

nimis Rule.

The second major error of the court below was in

denying the power of the Secretary of Transportation

to establish qualifications and maximum hours of serv-

ice for truck driver-loaders under the de minimis rule.

The de minimis rule has hitherto been limited in its

application to activities with minimal effects on the

safety of operations, out the court below has extended

it to include interstate activities of full time truck driv-

er-loaders.

8Earnest Tolbert, one of the plaintiffs, participated in the grievance

settlement as shop steward. (R. 194-195).

4x

16

The activities of truck driver-loaders ar2 substan-

tially concerned with safety of operation. To apply the

de minimis rule in this case is to extend it to include

activities of any character, no matter how great their

effect on safety, if the primary duties of the employees

are not interstate transportation of goods. The test

would become, not whether Safety-affecting aspects

are minimal, but whether interstate activity can be

termed minimal.

Previous applications of the de minimis rule have

been to activities with minimal effect on safety such

as loading without discretion or part-time driving as

a substitute (Pyramid Motor Freight Corp. v. Ispass,

330 U.S. 695, [1946], Wirtz v. C and P Shoe Corpora-

tion, 336 F2d 21 [5th Cir. 1964]). The truck driver-

loaders in this case engage in safety-affecting activi-

ties such as driving as a major part of their work.

Conversely, the power of the ICC (which preceded

the Secretary of Transportation) to set qualifications

and hours has been affirmed previously for drivers

no matter how limited their interstate activity (3.65%

of the firm’s business in Morris v. McComb, 332 U.S.

422, (1947); 0.0% of the firm’s business in Starrett v.

Bruce, 391 F2d 32, (10th Cir., 1968) cert. denied 393 U.S.

971. Driving affects safety, so drivers who may engage

in interstate activity have been held to be under the

power of the ICC.

DPS WGI CALLS TOE OME

Sl ae ata Bs i = 7

17

C. The Court Below Erroneously Declared Goods

Not To Be In Commerce.

The court below also erred on the question of the

power of the Secretary of Transportation to establish

qualifications and hours by holding that boxes im-

printed with Jiffy Poultry’s trademark (R.153) shipped

from out of state ceased to be in commerce because

they rested temporarily in a public warehouse before

being transported to Jiffy Poultry’s place of business.

The transportation of these boxes was interstate activi-

ty by the truck driver-loaders because the boxes re-

mained in commerce until they reached their final des-

tination; and this activity, three or more times weekly,

was not “minimal.”

As this Court enunciated the rule in Walling v. Jack-

sonville Paper Company, 317 U.S. 564, 568; (1947) goods

shipped in interstate commerce to a warehouse “to

meet the needs of specified customers pursuant

to some understanding with the customer though not

for immediate delivery ... remain in commerce until

they reach the customer.”

Clearly the court below failed to apply this rule to

the boxes for Jiffy Poultry; and by finding them not

to be in commerce the court below ignored substan-

tial interstate commerce which bears on the question

of the overtime exemption of the truck driver-loaders.

i.

D. The Court Below Defined A “Willful” Viola-

tion Too Broadly.

i8

Finally, the court below erred in holding the em-

ployer’s action in good faith and with reasonable

grounds for belief that his actions were not violations

of the Fair Labor Standards Act were willfui violations.

A finding of good faith should preclude a finding of

willful violation. “Will.ul” should be defined as in

Gefen v. United States, 400 F2d 476, 482 (5th Cir. 1968)

in which the court below construed “willful” for the

purpose of Section 6672 of the Internal Revenue Code

to mean “without reasonable cause.” Otherwise the

three year statute of limitations, punitive in its effect.®

will be applied where other punitive measures such

as liquidated damages are denied because the employ-

er acted in good faith with reasonable grounds for be-

lieving he had complied with the law.

4. The Decision Below Conflicts With The Motor

Carrier Safety Regulations Issued By The De-

partment Of Transportation.

Motor carriers have a duty to require observance of

driver qualifications and maximum hours of service

established in Motor Carrier Safety Regulations issued

9In the instant case the employer relied on the advice of counsel

and the settlement of the matter through grievance proceed-

ings. Believing the exemption to be applicable, the employer

allowed senior employees to work additional hours at straight

time rather than hiring additional employees to avoid over-

time premium. (R. 295-296) Since the employees would not

have received the additional work if the employer believed the

overtime premium to be required, back payment of the “over-

time” is a windfall to the employees. A three year period of

limitation increases the magnitude of this windfall. i

19

by the Department of Transportation (49 C.F.R. Parts

390-397,'° 49 C.F.R. §390.32. Such regulations are appli-

cable to private carriers, and the term “private car-

rier of property by motor vehicle” means any person

not included in the terms “common carrier by motor

vehicle” or “‘contract carrier by motor vehicle,” who

or which transports in interstate or foreign commerce

by motor vehicle property of which such person is the

owner, lessee or bailee, when such transportation is for

the purpose of sale, lease, rent, or bailment, or in fur-

therance of any commercial enterprise. 49 C.F.R.

§ 390.33

No minimum is set on the amount of interstate or

foreign commerce needed to give the Secretary of

Transportation such jurisdiction because the amount

of interstate or foreign commerce is irrelevant to the

need for safety — involvement in interstate commerce

is a jurisdictional key that unlocks the door to regula-

tion.

The district court, however, did not consider the ex-

istence of interstate commerce and the safety-affect-

ing nature of driving to be dispositive. Rather, the dis-

trict court found that the safety-affecting aspects of

the interstate trips were minimal, because they in-

volved light weight loads and deliveries to a communi-

ty (South Flomaton, Florida) located on the Alabama-

Florida border. (Opinion R. 302-303)

10This superseded substantially identical Motor Carrier Safety Regu-

lations issued by the Interstate Commerce Commission as of

January 1, 1965, then at 49 C.F.R. Parts 190-197.

as

20

Significantly, the Motor Carrier Safety Regulations

specifically include light vehicles (those with two axles

and less than 10,000 lbs. gross weight) 49 C.F.R.

§ 395.3. And drivers who drive wholly within a 50 mile

radius of their garage or terminal are exempt only

from the requirement to keep logs. 49 C.F.R. § 395.8(t)

Jiffy Poultry’s drivers frequently travel more than 50

miles, and the Florida deliveries are more than 60

miles from Mobile. Appendix C, infra, p. 42a.

This conflict as to the applicability of Motor Carrier

Safety Regulations between the Regulations and the

court below should be resolved by this Court in the

interests of highway safety as well as settlement of a

vital point of labor law.

CONCLUSION

For the foregoing reasons this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Willis C. Darby, Jr.

Counsel for petitioners

Post Office Box 2565

Mobile, Alabama 36601

CERTIFICATE OF SERVICE

I, Willis C. Darby, Jr., the attorney for Jiffy June

Farms, Inc., Jiffy Poultry, Inc. and Robert A. Trainor,

—

Jr., petitioners herein, and a member of the Bar of

the Supreme Court of the United States, hereby certify

that on the ___ day of July, 1972, I served copies of

the foregoing PETITION FOR A WRIT OF CERTIO-

RARI TO THE UNITED STATES COURT OF AP-

PEALS FOR THE FIFTH CIRCUIT on the United

States and on the several parties thereto as follows:

1. On the United States by mailing 3 copies thereof

in a duly addressed envelope, with air mail post2ge

prepaid to The Solicitor General, Department of Jus-

tice, Washington, D. C. 20530;

2. On the Secretary of Labor by mailing 3 copies

in a duly addressed envelope with air mail postage

prepaid to Richard F. Schubert, Solicitor of Labor,

U. S. Department of Labor, Washington, D. C. 20210;

3. On the Coleman plaintiffs, by mailing 3 copies

in a duly addressed envelope with first class postage

prepaid to H. Hayden Rector, Esquire, 324 Interna-

tional Trade Center, Mobile, Alabama 36602.

Willis C. Darby, Jr.

Attorney for Jiffy June

Farms, Inc., Jiffy Poultry,

Inc., and Robert A.

Trainor, Jr., defendants-

appellants

Post Office Box 2565

Mobile, Alabama 36601

—

la

APPENDIX A

PART I

Pertinent Statutory Provisions

Department of Transportation Act of 1966, (49 USC

1651 et seq.):

Section 6 (e) There are hereby transferred to

and vested in the Secretary all functions,

powers, and duties of the Interstate Commerce

Commission, and of the Chairman, members,

officers and offices thereof, under —

* * * *

(6) the following provisions of the Inter-

state Commerce Act, as amended —

* * * *

(C) relating to qualifications and maxi-

mum hours of service of employees and

Safety of operations and equipment: Sec-

tions 204 (a) (i) and (2), to the extent that

they relate to qualifications and maximum

hours of service of employees and safety

of operation and equipment; and Sections

204 (a) (3), (3a), and (5).

Fair Labor Standards Act of 1938, as amended (29

U.S.C. 201 et seq.):

TPE EP PRE II SP ae ae |

Sr Eee

2a

SEC. 7(a) (1) Except as otherwise provid-

ed in this section, no employer shall employ

any of his employees who in any workweek is

engaged in commerce or in production of goods

for commerce, or is employed in an enterprise

engaged in commerce or in the production of

goods for commerce, for a workweek longer

than forty hours, unless such employee re-

ceives compensation for his employment in ex-

cess of the hours above specified at a rate not

less than one and one-half times the regular

rate at which he is employed.

* * * *

SEC. 13(b) The provisions of section 7 shall

not apply with respect to (1) any employee

with respect to whom the [Interstate Com-

merce Commission] has power to establish

qualifications and maximum hours of service

pursuant to the provisions of section 204 of the

Motor Carrier Act, 1935; * * *.

* * * *

SEC. 15(a) After the expiration of one hun-

dred and twenty days from the date of enact-

ment of this Act, it shall be unlawful for any

person —

* * * *

(2) to violate any of the provisions of sec-

tion 6 or section 7, * * *;

ie.

SEC. 16(b) Any employer who violates the

provisions of section 6 or section 7 of this Act

Shall be liable to the employee or employees

affected in the amount of their unpaid mini-

mum wages, or their unpaid overtime compen-

Sation, as the caSe may be, and in an additional

equal amount as liquidated damages. Action

to recover such liability may be maintained in

any court of competent jurisdiction by any one

or more employees for and in behalf of himself

or themselves and other employees similarly

situated. No employee shall be a party plaintiff

to any such action unless he gives his consent

in writing to become such a party and such

consent is filed in the court in which such ac-

tion is brought. The court in such action shall,

in addition to any judgment awarded to the

plaintiff or plaintiffs, allow a reasonable attor-

ney’s fee to be paid by the defendant, and costs

of the action. The right provided by this sub-

section to bring an action by or on behalf of

any employee, and the right of any employee

to become a party plaintiff to any such action,

shall terminate upon the filing of a complaint

by the Secretary of Labor in an action under

section 17 in which restraint is sought of any

further delay in the payment of unpaid mini-

mum wages, or the amount of unpaid overtime

compensation, as the case may be, owing to

such employee under section 6 or section 7 of

this Act by an employer liable therefor under

the provisions of this subsection.

3a

Motor Carrier Act of 1935, as amended (c. 498, 49

4a

SEC. 17 The district courts *** shall

have jurisdiction, for cause shown, to restrain

violations of section 15, including in the case of

violations of section 15(a) (2) the restraint of

any withholding of payment of minimum

wages or overtime compensation found by the

court to be due to employees under this Act

(except sums which employees are barred

from recovering, at the time of the commence-

ment of the action to restrain the violations,

by virtue of the provisions of section 6 of the

Portal-to-Portal Act of 1947).

Stat. 543, 49 U.S.C. 301 et seq.).

SEC. 203. (a) As used in this part —

* * * *

(10) The term “interstate commerce”

means commerce between any place in a State

and any place in another State or between

places in the same State through another State,

whether such commerce moves wholly by mo-

tor vehicle or partly by motor vehicle and part-

ly by rail, express or water: * * *.

* * * *

SEC. 204. (a) It shall be the duty of the

Commission —

5a

(3) To establish for private carriers of

property by motor vehicle, if need therefor is

found, reasonable requirements to promote

safety of operation, and to that end prescribe

qualifications and maximum hours of service

of employees, and standards of equipment. In

the event such requirements are established,

the term “motor carrier” shall be construed

to include private carriers of property by mo-

tor vehicle in the administration of subsection

(c) of this section and sections 204(d) and (e);

205, 220, 221, 222(a), (b), (d), (f) and (g); and

224.

* * * *

Portal-to-Portal Act of 1947 (61 Stat. 84, 29 U.S.C.

251 et seq.), as amended by section 601 of the Fair

Labor Standards Amendments of 1966, 80 Stat. 830.

SEC. 6. Statute of Limitations. — Any ac-

tion commenced on or after the date of the en-

actment of this Act to enforce any cause of

action for unpaid minimum wages, unpaid

overtime compensation, or liquidated dam-

ages, under the Fair Labor Standards Act of

1938, as amended, the Walsh-Healey Act, or the

Bacon-Davis Act —

(a) if the cause of action accrues on or af-

ter the date of the enactment of this Act —

may be commenced within two years after the

cause of action accrued, and every such action

shall be forever barred unless commenced

REAR ORRIN fet EP RNGES OREM rt a

-—

within two years after the cause of action ac-

crued, except that a cause of action arising out

of a willful violation may be commenced with-

in three years after the cause of action ac-

crued;

6a

PART II

Pertinent Regulations

Motor Carrier Safety Regulations, 1971, (49 C.F.R.

Parts 390-397)

§ 390.32 Whenever in Parts 390-397 of this sub-

chapter a duty is prescribed for a driver or a prohibi-

tion is imposed upon him, it shall be the duty of the

motor carrier to require observance of such prescrip-

tion or prohibition; and, if the motor carrier is himself

a driver, he shall likewise be bound thereby.

§ 390.33 Parts 390-397 of this subchapter shall be

applicable to common carriers, contract carriers, and

private carriers subject to the Department of Transpor-

tation Act (49 U.S.C. 1651 et seq.) as shown in the follow-

ing table:

7a

on

SOX

ON

SoA

SA

oN

SOX

sox

SOX

SOx

Se

sox

sox

sex

SoA

sax

Sax

on

SoA

ON

Sax

sox

ON

SOA

oes Pigensiessccssasteevssraeisstt erie eammmnas

snoiesuep 19430 IO saAtsojdxe Zunsodsue jou usyM

s FNS rete soa ese ena. cava lens rs Suey i an Rg Aa oT Te epee Coun sao

-j@ snoiaZuep Jayj}O JO saatsojdxe Zuniodsuen uesuM

[UOISSTUIWIOD 3d.10UI

“WOD 3e}Ss19}U. 94} Aq psUljap se jJooIay} auUOZ [eIDI0W

-WI09 3y} JO Ajjedrorunu e puodeq pasn sIdAlIp pue sapDIyaA ‘gq

“° * 9148} sty} JO [-y Ydeisered ur pajz1d suoyey,

-nZai 34} Jepun peimbai jou st Zurprese,d 10 Suryszew

Teroeds jey} suoNnIpuod yons sapun Sunessdo usuM

sula}I yons erour 410

OM} JO JY4ZIaM ssoIZ B1OW! IO spunod Q00‘¢ JO aon

snoiaZuep suo JO }YSTaM ssoI# aiou 10 spunod goc‘z

BZurjiodsuen uaym “at ‘2961 ‘T Arenuer 0} Jord 4a

-J9 UT BIaM YSTYM EZBLLI § JO suotstaoid AyNMUeNb

ou} Aq pauieAos aq Teys (1)(w)Eeeo6e § uUuOHeH

-sturmpy Aemysry [elepag ay} JO Japio Jayyiny [Wun

yey} jdeoxe ‘suone]NZe1 paid oy} Japun papresesd 10

PpexIeU OS 3q O} B[ITYSA 3y} siInbar yoTYM suOT}IPUOD

Jepun of1e9 ynoyyIM BZunersdo usym JO ‘EzZELLT

UAD 6h ‘suojeMmsey syersaje~ snoprezey oy} sep

-un pepieseld 10 payreu Ajjerdads aq 0} afoTyaA ay}

armbar 0} se AyUeNb yons ut pue ad4} Yyons jo saTo

“THe snoiesuep Jayj}0 Jo saatsojdxe Zuniodsuen usu,

SUOISSTUTIOD adIBUTWIOD

384}SI9}UT By} Aq pouUTJep se Joarey} suOZ [eIDIaWIWIOD ay}

Jo Ajrediorunul e& ury}IM AT]OYM pasn sJaATIp pue SsepPTYyeA “VY

3

x:

%

‘T

L6E

96€

S6E

b6E

£6€

Z6E

T6€

suonengea1 jo syred alqeorjddy

1S PI IS DOP

ELIE PM LG 5 I

—

8a

NOTE: The operations outlined in A and B above, in-

clude the iransportation and use of certain vehicles as

specifically described in section 203(b) of the Interstate

Commerce Act, which include, generally, the following:

(1) School buses; (2) taxicabs; (3) hotel buses; (4) mo-

tor vehicles under control of the Secretary of the In-

terior; (5) motor vehicles of agricultural cooperative

associations; (6) motor vehicles used exclusively in

carrying ordinary livestock, fish or agricultural com-

modities; (7) motor vehicles used exclusively in dis-

tribution of newspapers; (7a) transportation incidental

to transportation by aircraft; (8) transportation wholly

within a municipality or between contiguous munic-

ipalities or within a zone adjacent to and commercial-

ly a part of such municipality or municipalities; (9) the

casual, occasional, or reciprocal transportation of pas-

‘sengers (when arranged for by brokers or other per-

sons for compensation) and of property consisting of

explosives or other dangerous articles by motor ve-

hicle, except that Part 395 is applicable to all casual,

occasional, or reciprocal transportation by motor ve-

hicle in interstate or foreign commerce for compensa-

tion by any person not engaged in transportation by

motor vehicle as a regular occupation or business.

The term “‘private carrier of property by motor ve-

hicle” means any person not included in the terms

“common carrier by motor vehicle” or “contract car-

rier by motor vehicle”, who or which transports in in-

terstate or foreign commerce by motor vehicle prop-

erty of which such person is the owner, lessee, or bailee,

when such transportation is for the purpose of sale,

lease, rent, or bailment, or in furtherance of any com-

5

—

mercial enterprise. (Section 203(a) (17) of the Inter-

state Commerce Act.) Except as otherwise specifically

provided motor vehicles controlled and operated by

any farmer when used in the transportation of agri-

cultural commodities and products thereof from his

farm, or in the transportation of supplies to his farm,

are subject to the same regulations as those applicable

to private carriers of property.

§ 395.3 (a) Except as provided in paragraphs (c) and

(e) of this section and in § 395.10, no motor carrier shall

permit or require any driver used by it to drive nor

shall any such driver drive more than 10 hours follow-

ing 8 consecutive hours off duty or drive for any period

after having been on duty 15 hours following 8 consecu-

tive hours off duty: Provided, however, That drivers

using sleeper-berth equipment, or off duty at a natural

gas or oil well location, may cumulate the aforemen-

tioned total of at least 8 hours off duty in two periods

of at least 2 hours each, resting in a sleeper berth, as

defined in § 395.2(g), or resting while off duty in other

sleeping accommodations at a natural gas or oil well

location.

(b) Except as provided in paragraph (e) of this sec-

tion, no motor carrier shall permit or require any

driver used by it to be on duty, nor shall any such

driver be on duty, more than 60 hours in any 7 consecu-

tive days as defined in § 395.2(c) regardless of the num-

ber of motor carriers using the driver’s services. Pro-

vided, however, That carriers operating vehicles every

day in the week may permit drivers to remain on duty

for a total of not more than 70 hours in any period

=_ —

l0a

of 8 consecutive days. Provided further, however, That

the limitations of this paragraph shall not apply with

respect to any driver-salesman whose total driving

time does not exceed 40 hours in any 7 consecutive

days.

(c) The provisions of paragraph (a) of this section

shall not apply with respect to drivers used wholly in

driving motor vehicles having not more than 2 axles

and whose gross weight, as defined in § 390.10, does not

exceed 10,000 pounds, unless such vehicle is used to

transport passengers or explosives or other dangerous

articles of such type and in such quantity as to require

the vehicle to be specifically marked or placarded un-

der the Hazardous Materials Regulations, § 177.823 of

this Title, or when operated without cargo under con-

ditions which require the vehicle to be so marked or

placarded under the cited regulations: Provided fur-

ther, however, That this section shall not apply with

respect to drivers of motor vehicles engaged solely in

making deliveries for retail stores during the period

from December 10 to December 25, both inclusive, of

each year.

(d) In the instance of drivers of motor vehicles used

exclusively in the transportation of oilfield equipment,

including the stringing and picking up of pipe used

in pipelines, and servicing of the field operations of the

natural gas and oil industry, any period of 8 consecu-

tive days may end with the beginning of any off-duty

period of 24 or more successive hours.

~

(e) In the instance of a driver who drives motor ve-

hicles solely within the State of Alaska such driver

may be permitted to drive not more than 15 hours

following 8 consecutive hours off duty and may not be

permitted to drive after having been on duty 20 hours

following 8 consecutive hours off duty. Such driver

shall not be on duty more than 70 hours in any period

of 7 consecutive days: Provided, That carriers op-

erating every day in a week may permit drivers to

remain on duty for a total of not more than 80 hours

in any period of 8 consecutive days.

lla

$ 395.8 (t) Driver’s log, when not required. The re-

quirements of this section shall not apply: (1)

To any regularly employed driver who drives wholly

within a radius of 50 miles of the garage or terminal

at which he reports for work: Provided, That the motor

carrier employing such driver maintains and retains

for period of 1 year accurate and true records showing

the total number of hours the driver is on duty per

day and the time at which the driver reports for and

is released from duty each day; or (2) to drivers of

motor vehicles having not more than 2 axles and

whose gross weight, as defined in § 390.10, does not ex-

ceed 10,000 pounds, unless such vehicle is used to trans-

port passengers or explosives or other dangerous

articles of such type and in quantity as to require the

vehicle to be specifically marked or placarded under

the Hazardous Materials Regulations, § 177.823 of this

Title, or when operated without cargo under conditions

which require the vehicle to be so marked or pla-

carded under the cited regulations.

5 aie il ea ee

12a

APPENDIX B

PART I

Opinion And Judgment Of The Trial Court

Arthur COLEMAN et al., Plaintiffs,

v.

JIFFY JUNE FARMS, INC., et al.

Defendants.

George P. SHULTZ, etc., Plaintiffs,

Vv.

JIFFY JUNE FARMS, INC., et al.,

Defendants.

Civ. A. Nos. 5337-69-P, 5342-69-P.

United States District Court,

S. D. Alabama, S. D.

Dec. 28, 1970.

OPINION AND ORDER

FINDINGS OF FACT

PITTMAN, District Judge.

This is a consolidation of actions, in one case by

employees and former employees of the defendants,

and in the other case, by the Department of Labor,

each seeking overtime pay allegedly due for past serv-

ices, and an injunction against future violation of Title

29 U.S.C.A. Section 207(a) (1). There is no issue pre-

sented with reference to the number of hours, the rates

of pay, or that all persons claimed to be due overtime

were employees of defendants during the relevant per-

iods of time. The parties have informed the court that

—7

they can agree on the amount of overtime due should

the court hold that any employees are entitled to over-

time pay. The plaintiffs, Coleman, et al., have raised

the additional question of liquidated damages and a

reasonable attorney’s fee. The issue before the court

is whether or not the defendants, or either of them,

are exempted from the provisions of the Fair Labor

Standards Act by virtue of Title 29 U.S.C.A. Section

213(b) (1).

13a

Defendants, in their pretrial response, incorporated

within the court’s pretrial order, have admitted that

defendants, Jiffy June Farms, Inc. and J iffy Poultry,

Inc., are corporations having a place of business in

Mobile County, Alabama, and the defendant, Robert

A. Trainor, Jr., resides in Mobile County, Alabama.

All are within the Southern District of Alabama. The

defendants have continuously, since September 1, 1966,

engaged in ordering, receiving, processing, delivering,

performing related clerical functions, and otherwise

handling or working on poultry, eggs and oysters that

have been moved in, or produced for, commerce.

At the trial of the case, plaintiffs offered the an-

Swers to requests for admissions and the interroga-

tories propounded by the plaintiffs, the answers thereto

by the defendants, and rested. The defendants estab-

lished that Jiffy June Farms, Inc. is a processing es-

tablishment whose principal business is processing

chickens, turkeys and eggs. All Jiffy June Farms’ sales _

of finished produce are made to the defendant Jiffy

Poultry, Inc. Offal and wastes are sold elsewhere.

l4a

Jiffy Poultry, Inc. is a sales and distributing concern.

In addition to selling and distributing products of Jiffy

June Farms, they make additional purchases from oth-

er processors and sell and deliver those products. The

ownership of both corporate defendants is substantial-

ly the same. The period of time relevant to this suit

is April, 1966 to April, 1969 for those employees who

have severed their employment with the defendants,

and from April, 1966 to the present for those who have

continued to be employed by the defendants.

All the processing by the defendant Jiffy June Farms

is done in Alabama. The majority of the sales and

deliveries by the defendant Jiffy Poultry are made in

Alabama. However, during April, 1966, and until April,

1969, the defendant Jiffy Poultry regularly, sometimes

two or three times a week, and in most weeks of each

month, made small sales and deliveries to South Flo-

maton, Florida, a rural community on the Alabama-

Florida line.

On those deliveries which included the Florida de-

liveries, the truck usually had deliveries in Alabama

hefore reaching Florida, and/or deliveries again in Al-

abama after reaching Florida. On occasion, a truck

might take a full load to Florida, but, generally, the

delivery was a small portion of a truckload. From the

evidence, it appears that all, or substantially all, de-

liveries in the State of Florida were made to South

Flomaton, Florida. The deliveries in Florida constitute

.23% of all deliveries in the course of defendants’ busi-

ness. It should be noted at this time that defendant

employs 67 driver-loaders among whom this infinitesi-

mal interstate traffic is allegedly divided.

—

15a

The 67 drivers for Jiffy Poultry also served as load-

ers. All drivers participated in the loading of all trucks.

While a particular driver might be ordered to drive

a particular truck, that same driver would have assisted

in the loading of other trucks. Jiffy Poultry employed

no full-time loaders without driving duties. The usual

procedure was for invoices representing a load for a

particular truck to be given to a driver who would

arrange the invoices in a reverse order of consecutive

deliveries. The trucks would be loaded with poultry

being loaded from the back forward. If the load was

mixed, eggs would be loaded to the rear of the truck.

The loading was done in such a manner as to minimize

shifting and harmful effects on the produce.

The defendant did not operate regular daily or week-

ly route deliveries, but routes would be organized to

minimize travel and according to the most economical

make-up of truck loads as dictated by the flow of sales

orders. Over a period of time customer orders devel-

oped in such a manner that a pattern was discernable.

However, no regular truck routes such as those op-

erated by buses or trains were established. The driv-

ers were not assigned a particular truck, nor to par-

ticular routes, but would receive their truck and route

assignment on the day the trucks left Jiffy Poultry.

Both defendants made out-of-state purchases, but de-

liveries to Alabama from other states were made by

other carriers. Jiffy June Farms purchased fiberboard

boxes from International Paper Company which they

shipped from South Carolina and Florida to a ware-

house in Mobile, Alabama. At that point the defend-

wee a ~ LEE Le AGL IE

_

l6a

ants’ drivers would pick up the boxes and deliver them

to the defendants.

The defendant Jiffy Poultry purchased chickens and

turkeys from out-of-state. These were delivered by the

sellers, in most instances, to cold storage facilities

leased by Jiffy Poultry at the Alabama State Docks.

On occasion, Jiffy Poultry would also deliver other

products for storage in these facilities, and would pick

up products stored there for delivery to other places.

Jiffy Poultry has made regular, dockside sales to ships

in Mobile for use aboard ship while at sea, and, pos-

sibly, for delivery in foreign countries. The evidence

is insufficient to determine the quantities of these com-

modities. j

The defendants’ employees in 1966, and for the period

of time in question, voted in a proper election to be

represented by a union. Subsequently, during bargain-

ing with the defendants, the union representative ex-

pressed the opinion to the defendants that the employ-

ees in question, truck drivers, were not within Section

207(a) (1) of the Fair Labor Standards Act (FLSA) re-

quiring overtime pay. The bargaining agreement (De-

fendants’ Exhibit 10) provided that these employees

were not to receive overtime. Thereafter, the employ-

ee-union members became dissatisfied with their fail-

ure to receive overtime pay. A grievance hearing was

had, and it was agreed with the defendants that senior

employees would be given all time possible over forty

hours per week in order to increase their earnings.

Some of the employees were still dissatisfied and

took their problems to the Department of Labor. The

—y

17a

Department found that some employees were exempt

and some were not. The Department of Labor was put

on notice by these employees on or shortly before June,

1967. These two suits were filed in J anuary, 1969. The

defendants have raised the defense of laches to the

Department’s suit. The plaintiffs, in rebuttal, called

one of the plaintiffs, Arthur Coleman, as a witness.

Coleman’s testimony was, in substance, similar to that

offered by the defendants except that his testimony

tended to indicate greater regularity in the various

routes operated by the defendants.

CONCLUSIONS OF LAW

There is no dispute as to the applicable law except

as to its pertinency to the facts in the case at bar.

Jiffy Poultry, Inc. admits that it employed the em-

ployees for whom overtime compensation is sought,

and that each employee was subject to the Fair Labor

Standards Act. Jiffy Poultry contends, however, that

each employee for whom overtime compensation is

Sought is exempt from the overtime provisions of

FLSA.

“Under the Motor Carriers Act of 1935 the In-

terstate Commerce Commission was accorded

the power to ‘establish reasonable require-

ments with respect to * * * qualifications

and maximum hours of service of employees,

and safety of operation and equipment’ of

common carriers by motor vehicle. 49 U.S.C.A.

§ 304(a)(1)'

1These functions of the I.C.C. were transferred to the Secretary of

Transportation. Title 49 U.S.C.A. 1655(e) (6) (C).

—_

18a

Three years later, when the Fair Labor Stand-

ards Act (FLSA) was adopted, Congress ex-

pressly provided that overtime provisions of

the Act?

‘shall not apply with respect to * * * any

employee with respect to whom the Inter-

state Commerce Commission (now the Sec-

retary of Transportation) has power to es-

tablish qualifications and maximum hours

of service pursuant to the provisions of

Section 304 of Title 49’ 29 U.S.C.A. § 213(b)

(1) (1965).

In defining the interrelation between these stat-

utory provisions, the Supreme Court has held

that only those employees who were engaged

in work which may affect the safety of the op-

eration of motor vehicles were subject to the

I.C.C.’s_ jurisdiction, and, consequently, with

respect to them, their employees were exempt

from the overtime requirements of the FLSA.

United States v. American Trucking Associa-

tions, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345

(1940)” Blankenship v. Thurston Motor Lines,

Inc., 415 F.2d 1193, 1195 (4th Cir. 1969).

2The pertinent section of the FLSA is 29 U.S.C.A. § 207(a) (1):

‘Except as otherwise provided in this section, no employer

shall employ any of his employees who in any workweek is

engaged in commerce or in the production of goods for com-

merce, or is employed in an enterprise engaged in commerce

or in the production of goods for commerce, for a workweek

longer than forty hours unless such employee receives com-

_ -pensation for his employment in excess of the hours above

specified at a rate not less than one and one-half times the

regular rate at which he is employed.’

19a

“The Fair Labor Standards Act was designed

‘to extend the frontiers of social progress’ by

‘insuring to all our able-bodied working men

and women a fair day’s pay for a fair day’s

work.’ * * * Any exemption from such hu-

manitarian and remedial legislation must

therefore be narrowly construed, giving due

regard to the plain meaning of statutory lan-

guage and the intent of Congress. To extend an

exemption to other than those plainly and un-

mistakably within its terms and spirit is to a-

buse the interpretative process and to frus-

trate the announced will of the people.” A. H.

Phillips, Inc. v. Walling, 324 U.S. 490, 65 S.Ct.

807, 89 L.Ed. 1095, 1098 (1945). (Citation omit-

ted.)

The employer’s burden of proof must be met

by a clear and unmistakable showing of (the operative

facts constituting an exemption) within the letter and

the spirit of the act. A. H. Phillips, Inc. v. Walling,

supra; Pugh v. Lindsay, 206 F.2d 43 (4th Cir. 1953).

The threshold question in this litigation is

whether or not the driving and loading activities

of the plaintiffs are subject to regulatory power of the

I.C.C. For it is the existence of such power, whether

or not it is exercised, which governs the section 12(b)

(1) exemption. Morris v. McComb, 332 U.S. 422, 68 S.Ct.

131, 92 L.Ed. 44, 54 (1947). The I.C.C.’s jurisdiction

over safety of operations is not determined by con-

siderations as to whether the fraction of the employee’s

time devoted to safety-affecting work is substantial.

Rather, it is the character of the employee’s activities

PELL EEL PD OE ESE

ie aa et

20a

that determines the actual need for I.C.C. regulation.

Levinson v. Spector Motor Service, 330 U.S. 649, 674,

67 S.Ct. 931, 91 L.Ed. 1158 (1946); Pyramid Motor

Freight Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91

L.Ed. 1184 (1946). In Levinson, supra, the Supreme

Court quotes from Levinson v. Spector Motor Service,

323 Ill. App. 505, 56 N.E.2d 142 (1944). The quoted por-

tion appears in a footnote at page 656 of 330 U.S, at

page 935 of 67 S.Ct., and reads in part as follows:

“* * * ‘Considering the purpose of the Motor

Carriers Act we believe that the true determi-

nant is whether an employee performs any

duties which substantially affect the safety of

operation, rather than whether the duties af-

fecting safety are substantial.’ While it is true

that many of the cases continue to speak of a

‘substantial part’ or ‘substantial portion’ when

they are viewed as an entirety it is ap-

parent that the activities must properly be

tested as to what they accomplish rather than

how much time they may consume.” Yellow

Transit Freight Lines, Inc. v. Balven, 8 Cir.,

320 F.2d 495, 498-499 (1963).

Another early Supreme Court decision, Morris v. Mc-

Comb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947)

held that the I.C.C. had the power to establish qualifi-

cations and maximum hours of service with respect

to all drivers and mechanics employed by a general

cartage concern doing business entirely within the

State of Michigan. The Court found that 3.65% of the

total trips were in interstate commerce, in the normal

course of the business, distributed generally through-

a

2la

out the year and performed indiscriminately by the

firm’s 43 drivers along with their intrastate services,

While Morris bears an appealing factual resemblance

to the case sub judice, the decision in Morris is not

here considered to be compelling. Despite numerous

similarities, there are crucial factual distinctions in

the cases. A firm in general cartage holds itself out

to the public as being prepared to transport freight

anywhere and at any time. The percentage of its busi-

ness having an interstate nature is not finally deter-

minative because it is subject to fluctuation as an inci-

dent of which certain of the firm’s activities may, at

a given time, bear a very substantial relationship to

interstate commerce. Even as such a firm’s interstate

activities might periodically ebb, the potential re-

mains, and should be regulated.

The defendant, Jiffy Poultry, is involved in cartage

— as a private carrier — only as an incident of their

poultry processing business. Defendants’ reliance

on Kerr v. Jeans, 193 F.2d 572 (5th Cir. 1952) is not

to be ignored. In its decision, the Fifth Circuit applied

Morvis to a private carrier. However, the claim in Kerr

v. Jeans was for overtime compensation for weeks dur-

ing which the employee was not engaged in any inter-

State activity. In other weeks, however, he was sub-

stantially involved. In the case sub judice, the defend-

ants’ involvement in interstate cartage is both static

and minimal. When measured by revenues, as was

done in Morris, the deliveries in Florida constitute 23%

of all deliveries in the course of defendant, J iffy Poul-

try’s, business. It should be noted at this time that

defendant, Jiffy Poultry, employs 67 driver-loaders

among whom this infinitesimal interstate traffic is al-

SRL ENGL ITE LOLI BEI ED RRL I Ee ATR I e

22a

legedly divided. Assuming, arguendo, that the inter-

state work is so divided, each driver would spend

.00343% of his time in interstate commerce. Yet, it

is not the amount of time spent, but the substantiality

of the effect of these efforts which we are to measure.

Levinson v. Spector Motor Service, supra. Courts have,

on previous occasions, looked to the safety-affecting

aspects of other employment, and in Foremost Dairies

Inc. v. Ivey, 204 F.2d 186 (5th Cir. 1953), found that

seven of eight plaintiffs who were employed in com-

merce and periodically called upon to load trucks in

interstate commerce, were not proven to have been

substantially involved in safety-affecting operations.

The eighth plaintiff was held to have been within the

L.C.C.’s jurisdiction because of the discretion exercised

in his supervision of the loading. In Wirtz v. C. and

P. Shoe Corporation, 336 F.2d 21 (5th Cir. 1964), em-

ployees primarily occupied in other work, who inter-

mittently helped as truck drivers came within the

de minimis rule of Pyramid Motor Freight Corp. v.

Ispass, supra, and recovery was allowed. In Opelika

Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37 (5th

Cir. 1962), an employee primarily occupied within the

warehouse, who was called upon sporadically to as-

sist with loading of soft drink delivery trucks came

within the de minimis rule. Looking beyond the mini-

mal time involved in the Florida deliveries by Jiffy

Poultry, Inc. to the safety-affecting aspects, these, be-

cause of the light weight loads, are also minimal, as are

the trips themselves, involving as they do, deliveries

to a community located on the Alabama-Florida bor-

der. -

—

Although the de minimis cases cited hereinabove re-

ly, in their holdings, upon the fact that the affected

employees were reassigned from other types of work

for the performance of their occasional and minimal

efforts affecting safety of interstate commerce, the

businesses in these cases were engaged to a substantial

degree, in interstate commerce; and so, consequently

were their regular drivers and loaders. In the case

at bar the employees are regular, full-time drivers and

loaders engaged in intrastate deliveries. Their occa-

sional and minimal involvements with interstate com-

merce are not rendered more substantial because of

their experience in this work or because reassignment

was unnecessary.

23a

In addition to their Florida deliveries, defendants

allege other interstate activities, to wit:

(A) Loading poultry products to be taken to

Florida.

(B) Loading offal to be taken to Mississippi in

the trucks of another firm.

(C) Trips to warehouse to pick up frozen poul-

try shipped from out of state.

(D) Trips to warehouse to pick up boxes and

marked cartons shipped from out of state.

(E) Sales to ships and ship chandlers at the

docks.

(F) Trips to the Mobile Farmers’ Market to

guide out-of-state trucks to the Jiffy Poul-

try plant.

The court finds the loading operations conducted by

the defendants are not of a safety-affecting nature,

wh ae de ee I GTS —

24a

and require no discretion on the part of the loader.

The loading of poultry for delivery was done on a first

in — last out basis, and with regard to safety in only

a most general way. Yellow Transit Freight Lines, Inc.

v. Balven, 320 F.2d 495, 499 (8th Cir. 1963). Also, with

regard to the loading of offal, there is little room for

the exercise of discretion. Foremost Dairies, Inc. v.

Ivey, supra; Pyramid Motor Freight Corp. v. Ispass,

supra.

The defendant did not transport these commodities

interstate, however, defendant relies upon Walling v.

Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87

L.Ed. 460 (1943); Opelika Royal Crown Bottling Com-

pany v. Goldberg, supra; Shew v. Southland Corpora-

tion, 370 F.2d 376 (5th Cir. 1966); and Galbreath v.

Gulf Oil Corporation, 413 F.2d 941 (5th Cir. 1969), to

support its allegations that the trips to the warehouses

were in interstate commerce. The court is not per-

suaded that such reliance is well placed. The cases

cited involve further distribution from a central re-

ceiving point. In the case sub judice, the shipments

were directed to Jiffy Poultry, were the property of

Jiffy Poultry, and were placed in warehouse space

leased to Jiffy Poultry. it is difficult to deny that these

products had reached their destination, and to assert

that mere transferral among Jiffy Poultry’s facilities

in Alabama is a continuation of interstate commerce.

While the deliveries by defendant to ships and ship

chandlers appear to be in interstate commerce, and

therefore must be added to the .23% of defendant’s

business which is of an interstate nature, there is no

satisfactory evidence to indicate how substantial these

Bee... »

ern

—

25a

maritime sales might be. It is also possible that the

“guided tours” from the Farmers’ Market to Jiffy

Poultry’s plant might affect safety in what is assuredly

interstate commerce. However, these activities might

be found to be de minimis. Again, there is a lack of

sufficient evidence to substantiate the extent and the

safety-affecting nature of the work of these guides.

It is well settled in the law that section 13 exemptions

are to be narrowly construed, and the burden of proof

falls to the claimant of the exemption.

“Any exemption for such humanitarian and

remedial legislation must therefore be narrow-

ly construed, giving due regard for the plain

meaning of the statutory language and the in-

tent of Congress. To extend an exemption to

other than those plainly and unmistakably

within its terms and spirit is to abuse the inter-

pretative process and to frustrate the an-

nounced will of the people.” A. H. Phillips, Inc.

v. Walling, supra, 65 S. Ct. at 808, 89 L.Ed. at

1098; Arnold v. Ben Kanowsky, Inc., 361 U-S.

388, 80 S.Ct. 453, 4 L.Ed.2d 393, 396 (1961): Gat-

lin v. Mitchell, 287 F.2d 76 (5th Cir. 1961).

In light of the strict construction accorded section 13

of FLSA, the court does not feel constrained to allow

an exemption which would deprive 67 working men

of overtime compensation on the basis of a minimum

of evidence of interstate activity which is minimal in

its scope and minimal in its nature.

—

26a

In Civil Action No. 5337-69, Arthur Coleman et al.

v. Jiffy June Farms, Inc., et al, the plaintiffs seek

liquidated damages. The court is satisfied that the act

or omission giving rise to the defendants’ action was

in good faith and he had reasonable grounds for be-

lieving that his acts or omissions were not in violation

of the Fair Labor Standards Act of 1938, as amended,

therefore, liquidated damages are denied.

In the same case, attorney fees have been requested.

The question of attorney fees is left open for the at-

torneys for said parties to present to the court evi-

dence as to a reasonable attorney fee, which should

be done on or before February 15, 1971.

In Civil Action No. 5342-69, George P. Shultz, etc.

v. Jiffy June Farms, Inc., et al., injunctive relief is

sought which is granted and attached to this order and

made a part hereof.

The parties have informed the court that if a decree

is rendered against the defendants they will be able

to reach an agreement as to the amount due defend-

ants’ employees in each of the cases. It is therefore,

Ordered, adjudged, and decreed that the court finds

for the plaintiffs and against the defendants in each

of the respective cases, and the parties are to file with

the court an agreed judgment as to the amounts due

on or before February 15, 1971.

Costs are taxed against the defendants.

27a

INJUNCTION

The defendants are hereby enjoined and restrained

as follows:

(1) From withholding the payment of back pay

found to be due by this court for the defendants’ em-

ployees for three years prior to the commencement

of this cause as authorized by section 17 of the Fair

Labor Standards Act of 1938 as amended 29 U.S.C.

§ 201 et seq., and section 6 of the Portal to Portal Act

of 1947 as amended 29 U.S.C. § 255, and

(2) From violating the provisions of section 15(a)

(2) of the Fair Labor Standards Act of 1938, as amend-

ed, 29 U.S.C. § 201 et seq.

- " - Ze Re a a

EON NY eA NES

_—_

28a

PART Il

Opinion And Judgment Of The Court Of Appeals,

Including Denial Of The Petition For Rehearing

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-1412

Summary Calendar*

ARTHUR COLEMAN, ET AL,

Plaintiffs-Appellees,

versus

JIFFY JUNE FARMS, INC., ET AL,

Defendants-Appellants.

JAMES D. HODGSON, Secretary of Labor,

United States Department of Labor,

Plaintiff-Appellee,

versus

JIFFY JUNE FARMS, INC., ET AL,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Alabama.

(November 29, 1971)

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.

me

29a

Before WISDOM, COLEMAN, and SIMPSON,

Circuit Judges.

WISDOM, Circuit Judge: The decision of the dis-

trict court is AFFIRMED. A detailed statement of the

Court’s reasons for affirmance would serve no pre-

cedential value, see Local Rule 21,' except insofar as

the decision interprets the three-year statute of lim-

itations for the Fair Labor Standards Act (“FLSA”),

29 U.S.C. § 255, as amended in 1966.

Section 255 provides, in pertinent part, that every

action for unpaid overtime compensation under the

FLSA “shall be forever barred unless commenced

within two years after the cause of action accrued,

except that a cause of action arising out of a wilful

violation may be commenced within three years after

the cause of action accrued.” In this action to recover

unpaid overtime compensation, the district court held

that the employer’s refusal to pay overtime compensa-

tion was “wilful”, even though the court also found

that “the act or omission giving rise to the defendants’

action was in good faith and he had reasonable grounds

for believing that his actions or omissions were not

in violation [of the FLSA].” The court therefore per-

mitted the employees to recover their unpaid wages

for three years back.

Before August 1966 the loaders and drivers employed

by Jiffy June Farmers were paid overtime compensa-

tion in accordance with Section 7 of the FLSA. Then

‘See NLRB v. Amalgamated Clothing Workers of America, 5 Cir.

1970, 430 F.2d 966.

—,

30a

the Teamsters’ Union organized the Jiffy June em-

ployees. The union negotiated a collective bargaining

agreement with the Jiffy June management which

granted an increase in the regular hourly wage, and

in exchange the union agreed to a provision purported-

ly exempting the employees from the FLSA overtime

rate because they were subject to the jurisdiction of

the Interstate Commerce Commission.? Before enter-

ing into the agreement Robert A. Trainor, Jr.,

the principal shareholder of Jiffy June, had consulted

his attorney, who advised him that the Jiffy June load-

ers and drivers would be exempt under the applicable

provision of the FLSA.

So far as we have been able to discover, no appel-

late court has construed the statute of limitations since

it was amended in 1966. Three district court decisions

— two from this Circuit — have applied the three year

period upon a finding of wilfulness. But the district

court cases provide little guidance as to the applicable

period of limitations when the employer seeks and then

relies on the advice of counsel prior to departing from

the federal wage standard by signing a collective bar-

gaining agreement.

2Section 13(b)(1) of the FLSA provides that the overtime provisions

of the Act shall not be applicable to “any employee with respect

to whom the Interstate Commerce Commission has power to

establish qualifications and maximum hours of service pursuant

to the provisions of Section 204 of the Motor Carrier Act.

1935.” 29 U.S.C. § 213(b)(1).

Under Local Rule 21, we have today affirmed the district

court’s holding that Jiffy June’s drivers and loaders were not

ne from the coverage of the FLSA by virtue of Section

3(b)(1).

—

3la

In Hodgson v. Hyatt, D.C. Fla. 1970, 318 F. Supp.

390, the employer altered his records of hours worked

to reflect falsely that his employees had been paid the

statutory rate for overtime work. The district court

applied the three year statute “to violations which are

intentional, knowing, or voluntary as distinguished

from accidental, and .. . [characterized by] conduct

marked by careless disregard whether or not one has

the right so to act.” In Hyatt, the employer’s alteration

of his records demonstrated beyond any doubt that

he knew of the applicability of the FLSA and intended

to violate the Act. Hyatt therefore does nothing to re-

solve our problem here, namely, whether some lesser

degree of knowledge may lead to a wilful violation

of the Act. See also Krumbeck v. John Oster Mfg. Co.,

D.C. Wisc. 1970, 313 F. Supp. 257, where the court found

that the employer had changed his job classifications

“for the purpose of eluding the requirements of the

Equal Pay Act.” 313 F. Supp. at 264.

In Dowd v. Blackstone Cleaners Inc., D.C. Tex. 1969,

306 F. Supp. 1276, 1281, the district court applied sub-

Stantially the same “intentional, knowing, or volunta-

ry” test of wilfulness used in Hyatt, and found a wil-

ful violation where the employees had refrained from

punching a time clock when they worked overtime (on

the weekends) and only then. The Court deduced that

the employees had been ordered not to punch the clock,

and that the employer had therefore sought to evade

the FLSA. Thus Dowd, like Hyatt and Krumbeck, in-

volved bad faith evasion of the Act and definite knowl-

edge of its applicability. In Dowd, the defendant testi-

fied that he had made casual inquiries and been told

that the Act did not apply to his employees. The court

SEEN I IE PN TS

_—_

32a

noted that the defendant did not consult “a lawyer or

the Labor Department or an expert of any kind to ver-

ify this determination,” and adhered to its view that

the defendant knew his actions constituted a violation

of the Act. Dowd, then, may imply in dictum that con-

sultation with counsel is sufficient to negate wilfulness

and avoid the three year statute of limitations, but

it stops far short of any such holding.

In short, none of the three district court cases has

addressed itself directly to the question — whether a

violation committed in good faith may yet be wilful,

as the Government and the plaintiffs argue here. Even

though Trainor consulted his lawyers, and evidently

relied on legal advice, we agree with the district court

that Trainor’s decision to change Jiffy June’s rate of

pay was “wilful” within the meaning of that term as

used in the 1966 amendment of § 255. Trainor decided

to consent to the change in rates of pay for overtime

work despite his awareness that the FLSA might pre-

vent such a change. He had previously paid his em-

ployees the federal overtime rate; and Trainor’s de-

cision to request an opinion of counsel is further evi-

dence that he did not stop paying the statutory over-

time without any inkling that the federal wage scheme

might thereby be violated. We cannot excuse Trainor

from these suspicions simply because his lawyer told

him that he need not fear federal overruling of his

new agreement with Teamsters’. The advice of coun-

sel to proceed with a favorable wage settlement which

undercuts the FLSA would be an easy way of circum-

venting the requirements of the Act — far too easy

a way for us to assume that Congress intended to sub-

ject employees to the strict two-year limitations per-

_—_ Rae

33a

iod whenever an employer’s lawyer had given him the

green light to restructure their pay.

The entire legislative history of the 1966 amendments

of the FLSA indicates a liberalizing intention on the

part of Congress. Requiring employers to have more

than awareness of the possible applicability of the

FLSA would be inconsistent with that intent. Conse-

quently, we hold that employer’s decision to change

his employees rate of pay in violation of FLSA is “wil-

ful” when, as in this case, there is substantial evidence

in the record to support a finding that the employer

knew or suspected that his actions might violate the

FLSA. Stated most simply, we think the test should

be: Did the employer know the FLSA was in the pic-

ture? In this case, Trainor knew that the FLSA had

to be considered when he ceased to comply with the

Act and asked his lawyer if it was permissible to do

so. We need not consider today whether the three-year

Statute of limitations applies in a case where the em-

ployer ought to have known of the possible applicabil-

ity of the FLSA but can demonstrate compellingly that

in fact he did not.

The decision below is AFFIRMED.

LTR O IS ILENE MIS

aaa

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

34a

October Term, 1971

No. 71-1412

Summary Calendar

D. C. Docket Nos. 5337 & 5342-69

ARTHUR COLEMAN, ET AL,

Plaintiffs-Appellees,

versus

JIFFY JUNE FARMS, INC., ET AL,

Defendants-Appellants.

JAMES D. HODGSON, Secretary of Labor,

United States Department of Labor,

Plaintiff-Appellee,

versus

JIFFY JUNE FARMS, INC., ET AL,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Alabama

a

35a

Before WISDOM, COLEMAN and SIMPSON,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript

of the record from the United States District Court

for the Southern District of Alabama and was taken

under submission by the Court upon the record and

briefs on file, pursuant to rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the

same is hereby, affirmed;

It is further ordered that defendants-appellants pay

to plaintiff-appellee, James D. Hodgson, etc., the costs

on appeal to be taxed by the Clerk of this Court.

November 29, i971

Issued As Mandate: May 25, 1972

36a

CORRECTED

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-1412

ARTHUR COLEMAN, ET AL,

Plaintiffs-Appellees,

versus

JIFFY JUNE FARMS, INC., ET AL,

Defendants-Appelliants,

* * * *

JAMES D. HODGSON, Secretary of Labor,

United States Department of Labor,

Plaintiff-Appellee,

versus

JIFFY JUNE FARMS, INC., ET AL,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Alabama

ON PETITION FOR REHEARING

(May 17, 1972)

7

Before WISDOM, COLEMAN and SIMPSON,

Circuit Judges.

PER CURIAM: 1. We adhere to the construction

of Section 255 of the Fair Labor Standards Act em-

bodied in the panel opinion of November 29, 1971. Even

under the criminal provision of the Act, section 216

(a), a “wilful” act has been interpreted to mean no

more than one “deliberate, voluntary and intentional

as distinguished from one committed through inadver-

tence, accidentally, or by ordinary negligence’. Nabob |

Oil Co. v. United States, 10 Cir. 1951, 190 F.2d 478, 480.

Out of caution, however, we note that our interpreta-

tion of the word “wilful” as used in Section 255 was

not intended to apply to Section 216(a). Our decision

is limited to the particular facts of this case and to

the question before us: civil liability under the Fair

Labor Standards Act.

2. In a supplemental petition for rehearing, the ap-

pellants state that “[nJeither this court nor the dis-

trict court specifically addressed itself to the separate

and distinct defense of Jiffy Farms, Jiffy Poultry, and

Trainor; namely

on the 18th day of August, 1966, defendant J iffy

Farms and defendant Jiffy Poultry entered in-

to a collective bargaining agreement with

Teamsters, Chauffeurs, Warehousemen and

Helpers Local Union No. 991 ( Teamsters), cer-

tified by the National Labor Relations

Board ... as the exclusive collective bargain-

ing agent of the employees referred to in para-

graph five of the complaint; said collective |

ELT PO RI SE eR OF ata a a

_ ———

38a

bargaining agreement contains a “final and

binding” grievance and arbitration procedure;

and, that prior to the filing of this action, it

was finally determined through such griev-

ance procedure that the employees referred to

in paragraph five of the complaint were ex-

empt from Section 7 of the Act, 29 U.S.C.A.

207, by virtue of Section 13(b) (1) of the Act,

29 U.S.C.A. 213(b) (1).

The appellants argue that their employees should be

bound by their decision to process their claims

for overtime wages through the grievance machinery

of the collective bargaining agreement. In support of

their contention that this issue is an important one,

the appellants cite Iowa Beef Packers, Inc. v. Thomp-

son, 40 U.S.L.W. 4239 (Feb. 29, 1972) where, after oral

argument, the Supreme Court dismissed as improvi-

dently granted a writ of certiorari to consider

“whether ... employees may sue in court to recover

overtime allegedly withheld in violation of the Fair

Labor Standards Act, if their grievance of alleged stat-

utory violation is also subject to resolution under

grievance and arbitration provisions of a collective bar-

gaining agreement”. Certiorari was dismissed be-

cause “the grievance and arbitration provisions. . . of

the collective-bargaining agreement involved in this

case ... apply only to grievances ‘pertaining to a viola-

tion of the Agreement.’ ”

It is not at all clear from the record in the present

case whether it was “finally determined” through the

contractual grievance procedure that the appellants’

employees were exempt from the overtime provisions

of the FLSA. Nor is it clear just which, if any, of the

appellees were parties to the grievance. We do not

address these uncertainties because we are convinced

that appellants’ argument is without merit, even as-

suming that all the aggrieved employees fully, and

unsuccessfully pursued grievance procedures in an ef-

fort to secure vindication of their Statutory right to

overtime pay. We need not reach the question for which

certiorari was originally granted in lowa Beef Packers,

supra.

The collective bargaining agreement between the

Teamsters and the appellants defines a grievance as

a “complaint by an employee or the Union concerning

the interpretation or application of this agreement”.

Article V, Section 1. The overtime dispute is covered

by this relatively restrictive language because the col-

lective bargaining agreement further provides that its

overtime provisions “shall not apply to any employee

with respect to whom the Interstate Commerce Com-

mission has power to establish qualifications and maxi-

mum hours of service pursuant to the provisions of

Section 304 of Title 49 United States Code”.

On its face, this contractual provision appears to cast

us directly upon the problem of the Iowa Beef Packers

case, supra. We should certainly face a serious ques-

tion of the need for arbitration if union and manage-

ment had agreed by contract to state management’s

obligation to pay overtime in terms of management's

statutory obligation under the Fair Labor Standards

Act. There could be some confidence in the legitimacy

of arbitration under such circumstances, for union ard

management would each actively pursue differing

= ev

40a

views of the uncertain requirements imposed by the

contract. The union would be required to make a good

faith effort on behalf of the aggrieved employees, and

management would, of course, be guided by its own

interests.

The record in the present case, however, plainly

reveals that the disputed provision in the Jiffy June

collective agreement was not a provision to which

management and union attached differing interpreta-

tions. As Jiffy June openly states in its brief at page

31, “The motor carrier exemption was suggested by

the Teamsters. Through collective bargaining the

truck drivers and loaders obtained a raise; the Team-

sters, as the truck drivers’ representative, recognized

an overtime exemption”. In truth, then, Article XII,

Section 3 of the agreement, though ostensibly ambigu-

ous and susceptible of interpretation through the griev-

ance machinery, embodied an unequivocal under-

standing between Teamsters and Jiffy June’s manage-

ment. The understanding was that truck drivers and

loaders were not to be paid overtime.

“Settling” the employees’ grievances through the

contractual grievance machinery was, under the cir-

cumstances of this case, a hopeless charade. Its mind

made up and its credibility committed, the union could

not possibly provide the aggrieved employees with the

fair and vigorous representation to which they were

entitled in attempting to vindicate their statutory

claim for overtime wages. If employees not fairly

represented may sue in federal court to enforce con-

tractual rights, it follows a fortiori that employees not

fairly represented may sue, without regard to griev-

4la

ance procedures, to enforce the detailed rights given

them by Congress when it enacted the Fair Labor

Standards Act. See Vaca v. Sipes, 1967, 386 U.S. 171,

87 S.Ct. 903, 17 L.Ed.2d 842.

The petition for rehearing is DENIED.

—

sn

or

Atmore

42a

APPENDIX C

PART I

Mileage Chart for Florida Deliveries

Andalusia

Brewton

Flomaton

va G6ICY

019 ywiog 7

1ys@ryi a /

eoues .

7 1) AmosU)

PAGE CUT OFF

tha

PART Il

Relative Possibility Of Driver Making Interstate Trip

September 9, 1966, Through January 29, 1969

Florida Poss. Of Trips To Poss. Of Total I/S Poss. Oj

Weeks Ending #Drivers Deliveries Fla.Trip Finch Whse F/W Trip Trips I/S Trip

9/ 9/65 10 2 20.00%

9/16/65 ll 3 27.27%

$/23/s6* ll 2 18.18%

. W/ 7/86 li 2 18.18%

10/14/66 ll 2 18.18%

ZB 10/21/66 12 2 16.66%

- 10/28/66 12 2 16.66%

lf 4/66 12 2 16.66%

11/11/65 12 3 25.00%

11/18/66 13 1 . 7.69%

11/25/66 13 2 15.38%

12/ 2/66 13 2 15.38%

12/ 9/66 13 2 15.38%

12/16/66 ll 2 ~ 18.18% i

12/23/66 12 3 25.00% 1 8.33% 3 25.00%

Florida Poss. Of Trips To Poss. Of Total 1/S Poss. Of

Week Ending #Drivers Deliveries Fla. Trip Finch Whse F/W Trip Trips I/S Trip

12/30/66 12 2. 16.66% 2 16.66% 4 33.33%

Y/. 4/67 17 1 5.889 0 1 5.68%

1/11/67 17 2 11.76% 6 35.29% 8 27.05%

1/18/67 18 2 11.11% ~ 22.22% 6 23.3353

1/25/67 20 3 15.00% = 20.00% 7 35.06%

2/ 1/67 19 2 10.529 0 2 10.52%

2/ 8/67 19 2 10.52% 1 5.26% 3 15.58%

2/25/87 17 2 11.76% 3 17.64% 5 29.5255

2/22/57 16 2 12.50% 2 12.50% S 25.005

3/ 1/67 18 | 11.11% 2 11.11% 4 22.2255

3/ 8/67 17 3 17.64% 1 5.889% 3 17.6259

3/15/67 16 2 12.50% ~ 25.00% 6 37.5059

3/22/67 17 1 5.88% 2 11.76% 3 Py fo y=

- 3/29/67 17 3 17.64% 2 11.76% 5 25.435%

4/ 5/67 17 2 11.76% 2 11.76% a 23.52%0

4/12/67 18 2 11.11% = 22.22% 6 33.3350

| 4/19/67 20 1 5.00% 1 5.00% 2 10.6053

4/26/67 20 2 10.00% 2 10.00% o 29.009¢

-3/ 3/67 20 1 5.00% 3 15.00% 4 20.665

5/10/67

5/11/67

5/24/67

5/31/67

6/ 7/87

5/15/67

6/21/67

6/28/67

4/ 5/61

4/19/87

1/28/61

8/ 2/87

8/ 9/67

8/16/87

9/23/67

9/30/67

9/ 6/87

9/13/67

9/21/67

10/ 4/67

10/11/67

10/18/67

10/25/67

11/ 8/67

11/15/67

11/22/67

11/29/67

12/13/67

12/21/67

1/3/68

1/10/68

1/11/68

1/24/68

1/12/87 .

iY. 1/67 |

12/ 6/67

12/20/67 _

20

19

. 20

20

20

21

21

21

Weck Ending # Drivers

9/20/67 - a“.

i7

16

16

17

18.

18

Florida

Week Ending # Drivers Deliveries

2

VBVHYOHYKYONNH HY HY NY KWON DY HH PD DN

Florida

Deliveries

BHYWNHWNHNHNHYH HH NWN DY WH HK HD WH

er er 8 _ '

er erie

‘oa

Poss. Of

_ Fla. Trip

10.00%

10.52%

10.00%

20.00%

5.00%

9.52%

9.52%

9.52%

14.28%

9.52%

10.00%

10.52%

9.52%

10.52%

10.52%

10.00%

11.11%

11.11%

11.11%

Poss. Of

Fla. Trip

11.76%

11.76%

12.50%

12.50%

11.76%

11.11%

16.66%

11.76%

11.76%

12.50% -

12.50%

- 13.33%

11,76%

11;76%

18.75%

12.50%

18.75%

12.50%

13.33%

Trips To

Finch Whse

Ne PDS Wwe DBD We DDN KY oe eS Pe

Trips To

Finch Whse

ELI IN PLL PPLE EVOL Le ILE ASLO

wer !h HPWH kK KH WH HH PHY YH PH

Poss. Of

F/W Trip

5.00%

5.26%

20.00%

5.00%

5.00%

23.80%

4.76%

9.52%

9.52%

4.76%

15.00%

10.52%

4.76%

15.78%

15.78%

10.00%

22.22%

5.55%

11.11%

Poss. Of

F/W Trip

29.41%

11.76%

25.00%

12.50%

11.76%

5.55%

22.22%

5.88%

11.76%

12.50%

18.75%

6.66%

5.88%

5.88%

18.75% .

12.50%

25.00%

13.33%

2D MER PR ONT on

Total I/S

Trips

BWANA wh OW UO hm WO QD OD W

Total I/S

ROeRoeeouanerEemmanad

Poss. Of

W/S Trip

15.06%

15.78%:

30.00%

25.00%

10.00%

33.33%

14.26%

19.04%

23.20%

14.28%

25.0056

21.05%

14.28%

26.32%

26.31%

20.609

33.235

16.6650

22.22%

Poss. Oj

I/S Trip

Ss ee se Se

tS & + to &)

Florida Poss. Of Trips To Poss. Of Total I/S - Poss. Of

eck Ending # Drivers Deliveries Fla.Trip Finch Whse F/W Trip Trips I/S Trip

1/28/63 18 2 11.11% Oo - 2 11.11%

49/31/68 19 2 10.52% 3 15.78% 5 26.32%

1/6/98 17 1 5.887% ° : . —

3/88 18 ee 5.56% 1 5.567% “ 11.1ifo

“/20/68 15 1 6.67% 2 13.33% 3 20.00%

m/e 15 2 13.33% 1 6.67% 3 20.60%

/ 4/63 is 0 - 1 6.25% 1 5.2570

2/3/68 16 1 6.25% 1 6.257 - 12.50%

3/18/63 15 1 6.67% 2 13.33% 3 20.00%

9/95/63 15 2 13.33% 2 13.33% 4 26.67%

+ 3/89 15 1 6.67% 1 6.67% 2 15.33%

1/ 9/39 15 0 - 2 13.33% 2 13.33%

13/69 15 1 6.679 i: 6.67% 2 13.33%

1/22/69 16 1 6.25% + 1 6.25% 2 12.509

1/23/69 16 1 6.25% 1 6.25% 2 12.50%

MOTALS 2016 230 1464.30 225 136.77 424 2566.24

Total Number of Driver Wecks (9/9/66 to 1/29/69), 2016.00

Total Number of Weeks (9/9/66 to 1/29/69) 12507

Average Number of Drivers Per Week (2016 -~ 125) = 16.13

Total Number of Florida Deliveries («/ G[i¢ - 1721/6 9) j 230.00

average Number of Florida Deliveries Per Weck (230 + 125) = 1.84

everage Probability of a Driver Making a Florida Trip in Work Week

1.85 + 16.13) = 11.41%

i041 Number of Trips to Finch Warchouse (!2/23/¢ 6-1/2 7/¢a)* " 225.60

otal Number of Weeks (12/23/66 - 1/29/66) c ~ 111.00

Rveraze Number of Trips Per Week To Winch Warchouse 2.03

kverage Nurnber of Drivers - - (12/23/66 - 1/29/69)

2016-165 = 1851-111) = ceuees ; 16.68

verage Number of Finch Warehouse Trips Per Weck 2.03

rerage Probability of a Driver Making a Finch Warehouse Trip in Work

Veeck (2.03 + 16.68) = : 12.17%

otal Number of Interstate Trips 12/23/66 - 1/29/66 : 424.00

verage Number of Interstate Trips Per Week 12/23/66 - 1/20/66 3.82

erage Probability of a Driver Making an Interstate Trip in Work Week

62 +- 16.68) = 22.9050

hs oe hay ark be J ty “4 intfrstase afi vefies bt ppliltry trofh thé Alabima State’ DptksXglé

a

f we

Tn D ° : ,

© PIACh Warehguse was the Public warehouse in which Fiber board

: “-7 - ; .

Mprtnted with dike, Poultey's traelemavk wtve STored.

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