Petition for Writ of Certiorari — Mitchell v. Myrtle Grove Packing Co.

Supreme Court brief1955

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RISE REO E A Rigen ante oer eno 2

Question presented - --.......-...-.-------------. 2

SE icnewssuacunsswerekteaneseveondsucasss 2

Reasons for granting the writ__...........-.------ 7

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CS 17

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CITATIONS

Cases:

Addison v. Holly Hill Co., 322 U. S. 607._...-- 13

Donnely v. Mavar Shrimp & Oyster Co., 190 F. 2d

LR RE SEAR ROE 6, 8, 9, 12

Phillips Co. v. Walling, 324 U. S. 490.....----- 13

Powell v. United States Cartridge Co., 339 U. 8.

i citi tices ak cncighidi ne ce iniiiesh ainhiarimaein aie heb dhe 13

Tobin v. Blue Channel Corp., 198 F. 2d 245___-- 7,

8, 9, 12,13

Statute:

Fair Labor Standards Act of 1938, c. 676, 52

Stat. 1060, as amended, c. 736, 63 Stat. 910

(29 U.S. C. 201, et seq.):

TLE TTL Ae SL 35

INI 6, dinate ctomscienentah @ieibananssaaeaiaae 35

Section 13 (a) (5)...-------- 5, 6,9, 10, 13, 35, 36

Section 13 (b) (4). ..-.----.----- 5, 8, 9, 10, 13, 36

Miscellaneous:

Fishery Statistics of the United States, 1951, Fish

and Wildlife Service, United States Depart-

ment of the Interior, Washington, D. C.,

95 Cong. Rec. 14874, 14878...........-------- 11

SOE, SOUR ccccesccnessennouscaneus 10, 11

Shrimp and Oyster Canning in the Gulf Area, Wage

and Hour and Public Contracts Divisions of the

United States Department of Labor, February

cian ciclenitbaimingindatsieielennin 14

337691—55——1 (1)

Inthe Supreme Gourt of the Winited Stutes

October Term, 1954

No.

JaMEs P. MITCHELL, Secretary or Lapor, UNrTED

States DEPARTMENT OF LABOR, PETITIONER

Vv.

MyrtLte Grove Packing ComMPaNny

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of the Secre-

tary of Labor, prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit, entered

in the above case on January 12, 1955.

OPINIONS BELOW

The findings of fact and conclusions of law of

the District Court (R. 82-85; App. A, infra,

17-21) are reported at 117 F. Supp. 599. The

per curtam opinion of the Court of Appeals (App.

A, 22) is reported at 217 F. 2d 952.

JURISDICTION

The judgment of the Court of Appeals (App.

A, 22) was entered on January 12,1955. The juris-

(1)

diction of this Court is invoked under 28 U. S. C.

1254 (1).

STATUTE INVOLVED

Pertinent provisions of the Fair Labor Stand-

ards Act of 1938, c. 676, 52 Stat. 1060, as amended,

c. 736, 63 Stat. 910 (29 U. S. C. 201, et seg.), are

set forth in Appendix B, infra, pp. 35-36.

QUESTION PRESENTED

Whether employees who remove the shell from

seafoods as an integrated step in the continuous

and uninterrupted process of canning these prod-

ucts are employed in “‘canning,’’ which Section

13 (b) (4) of the Fair Labor Standards Act

exempts from the overtime but not the minimum

wage provisions, or are employed in “‘process-

ing (other than canning)”, which Section 13

(a) (5) exempts from both the minimum wage

and overtime provisions of the Act.

STATEMENT

This action was brought by the Secretary of

Labor under Section 17 of the Fair Labor Stand-

ards Act to enjoin respondent from violating the

minimum wage and record-keeping provisions of

the Act. The respondent is almost exclusively

engaged in the business of canning shrimp and

oysters for interstate commerce. The employees

concerned peel the shrimp and shuck the oysters

as an integrated step in the continuous canning

process.

The parties stipulated and the district court

found that sales of canned shrimp and oysters

amounted to $930,356.34 and constituted 97.67%

of respondent’s total sales (R. 28, 83; Fdg. 1)

during a period from January 1, 1951, to Sep-

tember 30, 1952, which the court found was

‘‘typical’’ of “respondent’s operations and prac-

tices” (R. 27, 83; Fdg. 1), and that ‘‘Substan-

tially all of the shrimp and oysters handled (ap-

proximately 95%)” are being produced for

interstate commerce (R. 26, 83; Fdg. 1).".

The integration of the peeling and shucking

operations with the canning process is evident

from the trial court’s findings. The court found

that ‘‘the total elapsed time from the time the

shrimp are dumped on the table to be peeled to

the completion of the final sterilization of the

cans, is about one to two hours’ (R. 84; Fdg.

14); and that ‘“‘the entire handling of oysters’’

from ‘‘the beginning of the steaming process to

the completion of the final sterilization of the

hermetically sealed cans requires only about two

hours”? (R. 83; Fdg. 7). Once the canning of

the shrimp or oysters is begun they are not held

at any step except to accumulate a sufficient

* In only one of the seven quarterly periods included in the

stipulation did the respondent sell any shrimp or oysters

processed by a method other than canning, and such sales

amounted to $7,569.05, or only 0.8 of 1%, of the respondent’s

total sales. The balance of respondent’s sales, 1.53% of

the total, consisted of shrimp and oysters sold in the shell

with no processing whatever. (R. 28.)

quantity to begin the next step (R. 84; Fdgs. 8,

15).

The first step in the canning of oysters is to

cook them partially by steaming in retorts for five

to ten minutes (R. 83; Fdg. 3). ‘Following such

steaming, the oysters are then dumped into tubs,

partially opened and cooked and are removed

from the shuck by the employees here involved”’

(R. 83; Fdg. 4). After a shucker weighs the

oysters he has shucked to determine his piece rate

earnings, they are dumped into a tub for wash-

ing (R. 83; Fdg. 4) and then floated into another

room where they are inspected, placed in a brine

tank, and reinspected (R. 83; Fdg. 5). The

oysters are then carried to the “packing room”’

where they are placed in cans, sealed, and sub-

jected to further heat treatment (R. 83; Fdg. 6).

The court found that it was the “defendant’s _

[respondent’s] desire and it attempts to make the

handling of the oysters in the manner above set |

forth a continuous process’”’ (R. 84; Fdg. 8).

Shrimp are canned in accordance with a very

similar procedure. They ‘“‘are first dumped, raw,

on a table where the employees here involved re-

move the edible portions’? (R. 84; Fdg. 10).

They are then floated in flumes to an inspection

belt, inspected, and cooked in a blanching tank

(R. 84; Fdg. 11). After reinspection and grad-

*The piece rate earnings of these employees are deter-

mined by weighing the inedible portions which they have

removed (R. 84; Fdg. 12).

ing for size, they are carried to the packing

room where they are placed in eans, sealed and

heat treated (R. 84; Fdg. 13). The court found

that ‘“‘It is the desire of the [respondent] and

every effort is expended to make the process a

continuous one’”’ (R. 84; Fdg. 15).

The testimony of the respondent’s vice presi-

dent emphasized the complete integration be-

tween the preparatory work performed by the

employees herein and the actual putting into cans.

He testified that ‘‘for all practical purposes’’ re-

spondent Myrtle Grove had ‘‘done nothing but

ean”’ the shrimp and oysters it handled (R. 47)

since it was opened in 1946 or 1947 (R. 50) and

had not to his knowledge canned “shrimp or

oysters that were shelled or picked somewhere

else’? (R. 48).

Prior to the enactment of the Fair Labor

Standards Amendments of 1949, Seetion 13 (a)

(5) exempted from both the wage and hour

requirements of the Act any employee employed

in ‘‘processing, marketing, freezing, canning, cur-

ing, storing or distributing’’ any ‘‘aquatic forms

of animal and vegetable life’? (emphasis added).

The 1949 amendments deleted the word ‘‘ean-

ning’? from this list of activicies and qualified

“processing’’ by the insertion of the parentheti-

cal phrase ‘‘ (other than canning)”’ so that it now

reads ‘‘processing (other than canning).’’ At the

same time, a new subsection numbered 13 (b) (4)

was added, providing an exemption from the

overtime compensation provision, but not from

the minimum wage, for the ‘‘canning of any

kind of fish, shellfish,’’ ete.

The district court held that the broader exemp-

tion of Section 13 (a) (5) applies and dismissed

the complaint, on the sole ground that ‘“‘Independ-

ent consideration of this case by this court is pre-

cluded by the decision of the United States Court

of Appeals for the Fifth Circuit in Donnely v.

Mavar Shrimp & Oyster Co., 190 F. 2d 409.”

The court of appeals affirmed per curiam without

opinion (App. A, 22), citing only its decision in

the Donnely case (App. A, 23-34).

Donnely v. Mavar Shrimp & Oyster Co. was a

declaratory judgment action instituted ostensibly

by employees. The majority opinion of the Fifth

Circuit there held that the picking of shrimp

and shucking of oysters are processes ‘‘separa-

ble’? from canning and are exempt from both

the minimum wage and overtime requirements

as “processing (other than canning)’’ under

Section 13 (a) (5) (190 F. 2d at 411; App. A,

infra, 25). As pointed out in the dissenting

opinion, the Government was not a party to that

action and there were indications that it was a

‘‘friendly suit’’ between parties who ‘‘desired

the same result’’ (1d. at 412-414; App. A, 29).

The parties had in effect stipulated the very

issue in controversy in the instant case by agree-

ing that none of the employees involved were

‘“‘engaged in the canning of sea foods or aquatic

Ds ve Bettie senteezrae re. a ee

products,’’ and that the picking of shrimp and

shucking of oysters ‘‘are separate, distinct, and

have no immediate relationship”’ to the canning

(id. at 413; App. A, 30).

REASONS FOR GRANTING THE WRIT

The decision below conflicts squarely with the

decision of the Court of Appeals for the Fourth

Cireuit in Tobin v. Blue Channel Corp., 198 F.

2d 245. We believe that the clear legislative

purpose of the exemptions involved as well as the

settled principles established by this Court for con-

struing all exemptions from the Fair Labor Stand-

ards Act demonstrate the error of the court below.

In any event, the conflict between the Fourth and

Fifth Circuits, affecting the applicability of the

Act’s minimum wage provisions to a large pro-

portion of the employees in the fish canning

industry, should be resolved by this Court.

1. Except for the fact that the employees in

the instant case are engaged in peeling shrimp

and shucking oysters while those in Tobin v. Blue

Channel Corp., supra, pick the meat from the claws

of crabs, the cases are virtually identical. If

there is any factual distinction, the situation here

makes it even clearer that shelling the seafood

is an integral part of ‘‘canning.’’ In this case, the

district court found that the preparatory work

was performed almost exclusively for canning

(R. 28, 83; Fdg. 1) ; in the Blue Channel case the

preliminary operations were also performed to

337691—55—__2

paren nty

fill ‘“‘substantial orders for fresh and frozen crab-

meat’? (198 F, 2d at 247).

The Fourth Cireuit in Blue Channel, by unani-

mous decision, held that the claw pickers were

engaged in “canning”? within Seetion 18 (b) (4)

and thus entitled to the minimum wage protec-

tion. The court reasoned that the employer's

main objective is canning, which is accomplished

by “a continuous series of operations,” and that

“extracting the crabmeat from the claw, is an

early and preparatory, but nonetheless an essen-

tial and integrated, step in the continuous and

uninterrupted process of canning crabmeat”’

(198 F. 2d at M48). Tt concluded that it could

not “‘view the necessary preparatory operations

of the claw pickers in picking and sorting tho

crabmeat in isolation from the canning process

asa whole.” bid,

The Fifth Cireuit in the decision below, and

in the Donnely case (by a divided court), reached

exactly the opposite result, despite the express

recognition in the majority opinion in Donnely

that “‘eanning”’ includes, in addition to hermeti-

eally sealing, “‘every other operation necessarily

performed on the products before they are placed

in cans, bottles, or other containers’? (190 F. 2d

at 411; App. A, 25).

The Blue Channel case was decided subse-

quent to the Donnely decision and expressly de-

clined to follow the majority opinion in Donnely,

although pointing out that the cases might pos-

—

RTE Mea Neb am yee —— - re

RL NE ne WE es g ——

sibly be distinguished on the ground of the appar-

ently ‘friendly’? nature of the action and the

stipulation in Donnely (198 F. 2d at 247-248).

The instant case was then instituted by the

Secretary of Labor in a district court in the

Fifth Circuit in an effort to bring about conformit y

of enforcement, But the Court of Appeals, re-

jecting the suggestion that Donnely might be

distinguished because of the manner in which it

Was presented, held that decision decisive of the

instant case. Since this case is not distinguish-

able from Blue Channel, a direct coutlict is

now presented,

2. The decision below is incorrect. It is contrary

to the plain meaning and express legislative pur-

pose of the exemptions; and it is also inconsistent

with the well settled principles established by this

Yourt’s decisions for construing exemptions from

this Act.

(a) The obvious design of the 149 Amend-

ments in changing Section 13 (a) (5) and adding

Section 18 (b) (4) was to extend the minimum

wage benefits of the Act, but not the overtime

provisions, to workers in the fishery and seafood

industry employed in “canning,”

The IM49 amendment to Section 13 (a) (5)

deleted the word “canning” from its list. of

exempt activities. ‘To make it) unmistakably

clear that the complete exemption would no

longer apply to eanning, the generic word *“proe-

essing’? was expressly qualitied by the insertion

wih ORTON al GE ARAL SORE DERE TE Se

of a parenthetical phrase which can have had

no purpose other than to preclude its extension

to anything properly included in the term ‘‘can-

ning.’’ The amended phrase now reads “‘process-

ing (other than canning), marketing, freezing,

curing, storing, or distributing.’”’ At the same

time, the new section numbered 13 (b) (4) was

added, exempting ‘‘canning”’ from the Act’s over-

time provisions but not from the minimum wage

requirements.

The meaning and effect of these amendments,

insofar as concerns the preparatory operations

here involved, was clearly and specifically stated

in the legislative reports. Both the form and

substance of the Section 13 (a) (5) and Section

13 (b) (4) exemptions were the work of the

Conference Committee which expressly explained

that ‘‘canning”’ includes ‘‘necessary preparatory

operations performed on the products before they

are placed in bottles, cans, or other containers.”’

95 Cong. Rec. 14932-33. (Emphasis added.)

As originally adopted by the House of Repre-

sentatives and the Senate, the amendments had

differed in their treatment of fish canning. The

Senate amendment made no change in the 1938

Act in this particular. The House bill provided

a 14-workweek exemption for any industry en-

gaged in the first processing or canning of fish

in the raw or natural state. The bills adopted

by each House were referred to a conference

committee to reconcile the differences (95 Cong.

PE Pee ees xen

FE SPE Peace we reme

er eens |

Rec. 14932). The compromise bill as agreed on

by this committee was adopted and enacted into law.

The unanimous report of the House conferees, ex-

plaining this bill to the House of Representatives

before it was adopted by that body, said with

respect to the activities embraced in the word

“canning’’:

** * Under the conference agreement

“‘canning’’ means hermetically sealing and

sterilizing or pasteurizing and has refer-

ence to a process involving the perform-

ance of such operations. Jt also means

other operations performed in connection

therewith such as necessary preparatory

operations performed on the products be-

fore they are placed in bottles, cans, or

other containers to be hermetically sealed,

as well as the actual placing of the com-

modities in such containers. Also included

are subsequent operations such as the label-

ing of the cans or other containers and the

placing of the sealed containers in cases

or boxes whether such subsequent opera-

tions are performed as a part of an unin-

terrupted or interrupted process. [95 Cong.

Ree, 14932-33 ; emphasis added. ]

The same description of ‘‘canning’’ appears in

the Statement of the Majority of the Senate

Conferees (95 Cong. Rec. 14874 at 14878).

The Fourth Circuit was thus plainly correct

in ruling that shelling, peeling and picking opera-

tions are such ‘“‘necessary preparatory opera-

tions’’ when, as here, ‘‘canning is the main ob-

jective * * * and * * * is accomplished by a con-

tinuous series of operations * * *’’ (Blue Chan-

nel, 198 F. 2d at 248). The court below itself

expressly recognized the Congressional intent to

include in the term ‘‘canning”’ ‘‘every operation

necessarily performed on the products before

they are placed in cans’’ (Donnely opinion, 190

F, 2d at 411, App. A, 25). Its exclusion, nonethe-

less, of picking and shucking operations seems to

rest solely on its erroneous assumption that ‘‘ proc-

essing (other than canning) ’’ in Section 13 (a) (5)

would be meaningless if not construed to embrace

picking and shucking. But, as pointed out by the

Fourth Cireuit in Blue Channel: ‘Certainly, scores

of situations could be mentioned in which products

are processed but not canned”’ (198 F. 2d at 248).*

*The exemption for “processing (other than canning)”

has substantial practical meaning and ample scope for opera-

tion apart from the preparatory operations preceding can-

ning. The production of oil and meal from menhaden and

other fish, and the filleting of fresh fish, are ready examples

of very substantial practical importance. “Practically the

entire 1951 menhaden production was used in the manufac-

ture of oil and meal.” Fishery Statistics of the United

States 1951, Fish and Wildlife Service, United States De-

partment of the Interior, Washington, D. C., p. 289.

Neither the extracting and rendering of oil from the fish nor

the filleting of fresh fish is included in the specifically men-

tioned operations—other than “processing”—exempt under

Section 13 (a} (5). Furthermore, the terms of the exemp-

tion itself show that it applies to many products which are

processed in ways not involving freezing, curing, storing or

canning. Its terms embrace not only fish, but also “sponges,

seaweeds, or other aquatic forms of animal and vegetable

(b) The decision below gives the broadest pos-

sible scope to the complete exemption of Section

13 (a) (5), and construes as narrowly as possible

the language of Section 13 (b) (4), which wag

enacted to extend the coverage of the minimum

wage provisions of the Act. As the Fourth Cir-

cuit said of the latter provision in Blue Channel:

‘‘We are here dealing with a remedial statute.

Its terms of coverage should therefore, be liber-

ally rather than narrowly construed.’”’ 198 F. 2d

at 248. The Fifth Circuit’s approach is diamet-

rically opposed to this Court’s repeated and con-

sistent rulings that “‘[a]ny exemption from such

humanitarian and remedial legislation must * * *

be narrowly construed.’’ (Emphasis added.)

(Phillips Co. v. Walling, 324 U. S. 490, 493;

Addison v. Holly Hill Co., 322 U. S. 607, 617;

Powell v. United States Cartridge Co., 339 U. 8.

497, 517).

3. The above conflicts and inconsistencies are

of substantial importance to a fair and uniform

life.” Thus, the general word “processing” may apply to

such activities as the drying of seaweed preparatory to the

manufacture of agar and to the drying and cleaning of

sponges.

It is thus seen that the processes applied to the materials

mentioned in Section 13 (a) (5) are many and varied. The

reasonable construction, therefore, of the word “processing”,

as used there, would seem to include all of such processes,

though not specifically named, except the process of canning,

which has been specifically excluded. This interpretation

gives the word “processing” the meaning which context and

legislative history require, without distorting the ordinary

realistic meaning of the term “canning.”

Fr teh ORI

enforcement of the Act, inasmuch as some 175

to 90% of the production workers in shrimp

and oyster canning plants are employed in these

necessary preparatory operations, according to

a study made by the Department of Labor.« A

large proportion of such plants are located in

the Fifth Circuit. Thus, unless and until the

issue is settled by this Court, numerous workers

in canning plants in the Fifth Circuit will be

denied the minimum wage benefits of the Act and

shell fish canneries located in this Circuit will

have a substantial competitive advantage over

those located in the adjoining Fourth Circuit.

CONCLUSION

It is respectfully submitted that this petition

for a writ of certiorari should be granted.

Srmon E. Sosevorr,

Solicitor General.

Stuart RoTHMAN,

Solicitor, Department of Labor.

APRIL 1955.

* Shrimp and Oyster Canning in the Gulf Area, Wage and

Hour and Public Contracts Divisions of the United States

Department of Labor, Feb. 1951, unpublished.

APPENDICES

837691—55-——3

gene TE & LGR EE Tee ET TT & \ eo?

APPENDIX A

United States District Court, KE. D. Louisiana,

New Orleans Division

Jan. 13, 1954

MITCHELL, SECRETARY OF LABOR

MyrtLe Grove Packinac CoMPANy

Civ. A. No. 3392

Wricut, District Judge: This proceeding was

instituted by the Secretary of Labor to require

compliance by the defendant with the require-

ments of the Fair Labor Standards Act of 1938,

as amended, in its employment of individuals in

the shucking of oysters and the heading and

picking of shrimp. The question presented is

whether the individuals concerned are engaged

in the canning of shrimp and oysters within the

contemplation of the Act. The issues of fact

and law having come on to be heard on the

pleadings and proofs of the parties and due

deliberation having been had, the court now

makes the following findings of fact and con-

clusions of law.

Findings of Fact

1. ‘The court adopts the stipulation of the par-

ties filed in this cause as findings of faet and

makes the further and additional findings based

upon the oral testimony adduced at the trial.

(17)

2. Oysters canned by the defendant are pur-

chased from fishermen and delivered to the

defendant at its dock. Normally, a_ sufficient

quantity is received immediately to begin their

handling but if not, oysters may be held one or

two days before any processing is begun so

that a sufficient quantity for economical handling

may be amassed.

3. The first step in the — of oysters is

the placing of them in retorts where they are

steamed at temperatures of from 220 to 240

degrees Fahrenheit for periods varying from five

to ten minutes, the temperature and time depend-

ing upon the size, ete., of the particular batch

of oysters. Such steaming constitutes a partial

cooking thereof, and is used only when the

oysters are to be canned.

4. Following such steaming, the oysters are then

dumped into tubs, partially opened and cooked

and are removed from the shuck by the em-

ployees here involved. As the meat is removed

from the shell, it is placed in 25 pound cans

by the oyster shellers, weighed to determine the

piece rate earnings due such shuckers and then

dumped into a tub for washing.

5. After being washed the oysters are “floated’

in a water-filled flume into another room where

they are inspected. After inspection they are

placed in a tank with a brine solution and then

are reinspected.

6. Following the last inspection, the oysters

are then placed on trays and carried to what

is described by defendant as the ‘‘packing room”’,

where they are placed in cans. The cans are

sealed by machinery and are then subjected to

further heat treatment at about 120 degrees

Centigrade for approximately 13 minutes.

7. Normally, the entire handling of oysters as

above set forth, from the beginning of the steam-

ing process to the completion of the final steri-

lization of the hermetically sealed cans requires

only about two hours.

8. After the steaming process is begun oysters

are not held at any point for a longer period

than required to atmass a sufficient quantity to

justify the placing of an additional crew to work

at the next step in their handling. It is the

defendant’s desire and it attempts to make the

handling of the oysters in the manner above set

forth a continuous process.

9. As with oysters, shrimp are delivered to the

defendant's dock by fishermen. Also, as with oys-

ters, if a sufficient quantity is not delivered the

shrimp may be held a few days under refrigera-

tion pending the receipt of a sufficient quantity to

permit economical handling.

10. When the defendant is ready to begin the

handling of the shrimp they are first dumped,

raw, on a table where the employees here in-

volved remove the edible portions of the shrimp.

11. After the shrimp are peeled they are floated

in flumes, and simultaneously washed, to an in-

spection belt. After inspection they are placed

in 10 pound containers and placed in a blanching

tank and cooked for approximately three min-

utes. They are then reinspected and graded for

size.

12. The inedible portions of the shrimp are

placed in large containers by the employees re-

moving them and such containers are weighed to

Rie

Mis tad Rees

determine the piece rate earnings of such

employees.

13. After being graded, as set out above, the

shrimp are placed in trays and carried to what

is designated by the defendant as its ‘“‘packing

room.’’ The shrimp are then placed in cans by

hand, weighed, and the cans are sealed by

machinery and then subjected to a further treat-

ment by heat for approximately 13 minutes at

about 120 degrees Centigrade.

14. Normally, the total elapsed time from the

time the shrimp are dumped on the table to be

peeled to the completion of the final sterilization

of the cans, is about one to two hours.

15. As with the oysters, after the handling of

the shrimp is once begun they are not ordinarily

held except at the completion of a given step they

may be held for a short period while a sufficient

quantity is being amassed to justify the calling

in of a crew of workers to begin the next step in

their handling. It is the desire of the defendant

and every effort is expended to make the process

a continuous one.

Conclusions of Law

1. The court has jurisdiction of this action.

2. Independent consideration of this case by

this court is precluded by the decision of the

United States Court of Appeals for the Fifth

Cireuit in Donnely v. Mavar Shrimp & Oyster Co.,

190 F. 2d 409. The facts of this case are sub-

stantially indistinguishable from the facts in the

Mavar case. It is true that the stipulation in the

Mavar case, apparently a so-called friendly suit,

goes further in favor of the defendant than the

eid daa Ped Ca

stipulation in the case at bar. Where it does,

however, it relates to questions of law which

would not, of course be controlling on the court.

Consequently, in resolving the issue of coverage

here, the difference in the stipulations may be

disregarded.

Judgment for defendant.

United States Court of Appeals for the Fifth

Cireuit

No. 15051

JAMES P. MITCHELL, SECRETARY OF LaBor, UNITED

States DEPARTMENT OF LABOR, APPELLANT

MYRTLE GRove PACKING COMPANY, APPELLEE

On Appeal From the United States Distriet Court

for the Eastern District of Louisiana

January 12, 1955

Per Curiam: Affirmed. Donnely v. Mavar

Shrimp & Oyster Co., 190 F. 2d 409.

(22)

United States Court of Appeals for the Fifth

Circuit

No. 13419

July 17, 1951

DONNELY ET AL. v. Mavar Surimp & Oyster Co.,

ET AL.

Appeal from the United States District Court

for the Southern District of Mississippi

Before Ho_megs, Bora and Rives, Circuit

Judges. Hoimes, Circuit Judge.

This action is brought under the Declaratory

Judgments Act, as amended, which is contained

in Chapter 151 of the Federal Judicial Code of

1948, as amended by the Act of May 24, 1949.

See Title 28 of U. S. Code, Sections 2201 and

2202. Federal jurisdiction is based solely on

diversity of citizenship, and the amount involved

exceeds $3,000 exclusive of interest and costs.

This appeal is from a judgment declaring the

rights and legal relations of the parties under

Section 213 (a) (5) of Title 29 United States

Code.

The Declaratory Judgments Act is a procedural

statute that provides an additional remedy for

use in cases of which the federal courts already

have jurisdiction; it should be given a liberal

construction. The procedure is expressly recog-

nized in Fed. Rules Civ. Proc. rule 57, 28 U. S.

(23)

C. A., which says that the existence of another

adequate remedy does not preclude a judgment

for declaratory relief in cases where it is ap-

propriate; also that the court may order a speedy

hearing of an action for declaratory judgment,

and may advance it on the calendar. See Ten-

nessee Coal, Iron & R. Co. v. Muscoda Local No.

123, 5 Cir., 137 F. 2d 176, affirmed in 321 U. S.

590, 64 S. Ct. 698, 88 L. Ed. 949; Gully v. Inter-

state Natural Gas Co., 5 Cir., 82 F. 2d 145; Miss-

issippi Power & Light Co. v. City of Jackson,

5 Cir., 116 F. 2d 924; Borchard, Declaratory

Judgments, pp. 619-621.

We have no doubt that this case involves an

actual justiciable controversy, which in the inter-

est of justice should be speedily heard and deter-

mined in accordance with the letter and spirit of

the just cited rule. Delay in adjudicating this

controversy might be financially disastrous to

many small operators in the shrimp and oyster

industry. Said Section 213 (a) (5), as amended,

exempts from the minimum wages and maximum

hours provisions of the Act any employee en-

gaged in the catching or cultivating of any kind

of fish, shellfish, or other aquatic forms of animal

and vegetable life, including packing of such

products for shipment, ‘‘processing (other than

canning)”, marketing, freezing, curing, storing

or distributing, the above products, or byproducts

thereof. The word processing, as used in the

exempting clause, includes a series of acts, events,

and occurrences, which are necessary to trans-

form raw seafood into an edible commercial

product. The statute excludes from the mini-

mum wages and maximum hours provisions of

the Act every one of the acts and progressive

steps, except canning, included in the term

processing.

Canning includes hermetically sealing, and

sterilizing or pasteurizing, and every other opera-

tion necessarily performed on the products before

they are placed in cans, bottles, or other con-

tainers to be hermetically sealed, as well as the

actual placing of the commodities in such con-

tainers; also included are subsequent operations

such as the labeling of the cans or other con-

tainers, and the placing of the sealed containers

in cases or boxes, whether such subsequent opera-

tions are performed as a part of an uninterrupted

or interrupted process. Every other act or step

in catching, curing, marketing, and distributing

aquatic products is embraced in the exemption

clause except only those especially performed

upon the products for the purpose of canning.

All the preparatory things are excluded from the

act that can be and are done when canning is not

intended or contemplated; and all the subsequent

operations are excluded, as a matter of course,

when canning has not actually taken place.

Catching, freezing, curing, shelling, or shucking,

shrimp or oysters, constitutes no part of the

canning process. Corn is sometimes shucked in

the field, and pecans are often shelled without

canning. Wringing its neck and plucking its

feathers are primary but separable processes in

cooking a chicken, and all three are processes

other than canning. The primary processes in

the silk industry are performed in Asia, and the

partially processed silk product is by law im-

ported, duty free, into the United States. Gin-

ning is the primary process in the cotton textile

industry, but a cotton gin is distinguishable from

a textile mill. A corn shucker is not a miller, and

a shrimp picker is not engaged in canning

shrimp any more than a corn shucker is engaged

in canning corn. The least that can be said is

that the processes are separable; and that the

Act so contemplated is indicated by retaining the

exemption as to processes other than canning.

If picking shrimp and shucking oysters are

not exempted, what are the processes other than

canning that were in the legislative mind? Catch-

ing, cultivating, curing, storing, freezing, and

marketing, are without qualification specifically

exempted from the wages and hours law. What,

then, we repeat, are the processes (other than

canning) that the amendment intended to exclude

from the exemptions if the actual canning retro-

actively embraced everything previously done tuo

the product except catching, curing, storing,

freezing, and marketing? The position and

punctuation of clause (5) in paragraph (a) of

Sec. 213, Title 29, indicate that the parenthetical

words (other than canning) modify only the pre-

ceding word ‘‘processing’’ and not the words

‘‘marketing, freezing, curing, storing, or dis-

tributing.’’ Curing means to prepare for preser-

vation or permanent keeping; to preserve as to

eure beef or fish. See Webster’s Dictionary.

We must give full effect to all the words used

by the Congress; to do this means that preparing

shrimp or oysters for preservation or permanent

keeping is exempted from the provisions of both

Sections 206 and 207 of said Title 29. These

appellants are not engaged in canning; they do

not work in the canning room; their work is

frequently done without any intention on the part

of their employer to can the articles that are

being processed; they are engaged in a process

involving shrimp and oysters that is distinct

from, not necessarily related to, and often not

succeeded by, canning. Cochrane v. Deener, 94

U. S. 780, 788, 24 L. Ed. 139; Waldman v. Swan-

feldt, 9 Cir. 66 F. 2d 294, 295; Henry v. Marke-

san State Bank, 8 Cir., 68 F. 2d 554, 557; Waller

v. Humphreys, et ux., 5 Cir., 133 F. 2d 193; Me-

Comb v. Consolidated Fisheries Company, 3 Cir.,

174 F. 2d 74; Cincinnati Soap Company v. United

States, D. C., 22 F. Supp. 141, 143; State v.

Pacific American Fisheries, 73 Wash. 37, 131

P. 452-454.

The statute recognizes that, in obtaining and

offering shrimp and oysters for sale for use

as food, it is necessary to cultivate them, catch,

eure, freeze, pack, can, or otherwise transform,

them into a marketable product. Prior to 1949,

Section 213 (a) (5) exempted every act of an

employee in catching, curing, canning, cultivating,

and marketing, any kind of shellfish or other

aquatic forms of animal and vegetable life. In

1949, Section 213 (a) (5) was amended so as to

exclude canning from the exemption, but it left

the exemption intact as to every other distinct

act and feature of the industry that was neces-

sary to convert the raw material of aquatic life

into a marketable product. As used in the

statute, processing is an inclusive word that em-

braces all the acts necessary to improve the

material and convert it into an edible product.

The amendment of 1949 did not strike the word

BP.

processing out of the exempting clause (as it

might have done), but limited its scope and effec-

tiveness only to acts and doings other than can-

ning. The act of canning is only one of several

processes necessary in turning the aquatic mate-

rial into food fit for human consumption. We

must ascribe to the legislative mind some reason

for leaving the word processing (other than

canning) in the exemption clause of said Section

213 (a) (5). What are processes other than

canning are questions of fact to be decided upon

the special characteristics of the process or oper-

ation of the particular business or industry.

The findings of fact by the district court are

not clearly erroneous; and the judgment ap-

pealed from is affirmed.

Affirmed.

Rives, Circuit Judge (dissenting).

In arriving at what is included in “canning,”’

I do not think that the word “processing’’ in the

exempting clause of the 1949 amendment is sig-

nificant, because at the same time Section 213

(b) (4) was added providing an exemption from

the overtime requirements only for ‘‘the canning

of any kind of fish, shellfish, * * *,’’ and there

the word “processing” was not employed. It

seems apparent that the overtime exemption was

intended as a substitute for the complete exemp-

tion previously provided in Section 213 (a) (5)

for ‘“‘any employee employed in * * * canning.’’

Canning is just one form of processing and

to exclude everything included in the broader

term would leave to canning a very limited mean-

ing. I think that canning includes the necessary

preparation of the product performed as an

————e

integral part of a continuous uninterrupted proc-

ess even though the same preparation might be

necessary to make the product edible without

canning. That the product must be shucked,

cleaned, peeled, and cooked before it is eaten at

all does not remove those operations from can-

ning when they are performed in connection with

canning and as a part of that process. Exemp-

tions from this Act must be “narrowly construed”’

and extended only to “those plainly and unmis-

takably within its terms and spirit.’”” A. H.

Phillips Co. v. Walling, 324 U. 8S. 490, 493, 65

S. Ct. 807, 808, 89 L. Ed. 1095.

Nevertheless, upon the record before us, I

would concur in the result if I could bring my-

self to believe that the case presents an actual

controversy. To my way of thinking, it is plainly

a “friendly’’ suit “tin which there is no actual

antagonistic assertion of rights.’’ C. I. O. v.

McAdory, 325 U. 8. 472, 475, 65 S. Ct. 1395,

1397, 89 L. Ed. 1741. A eareful study of the

record leads me inescapably to the belief that

both sides desired the same result to the pro-

ceeding and gave the Court not the slightest

chance of arriving at a contrary conclusion.

The plaintiffs are two companies engaged in

the commercial canning of shrimp and oysters

as well as in their taking and harvesting, clean-

ing and processing. The defendants are eighteen

“casual workers”’ of the plaintiffs selected by the

plaintiffs themselves out of a total of about 400

laborers. We must know in reason that the

defendant casual workers had no considerable

funds with which to employ counsel. Upon oral

argument when plaintiffs’ counsel praised the

ttt gl 5 haa Bid VEO TES TEA I LEE RNS Ne AES AS PTT LTD. Wem > oe

generosity of defendants’ counsel in representing

his clients without charge, defendants’ counsel

shook his head, but it is hard to say whether that

was in denial of the praise or in disapproval

of the propriety of the observs.tion in open Court.

The complaint alleged in paragraph 3 that

‘none of the defendants above named, at any '

time during the period hereinabove recited was

engaged in the canning of sea foods or aquatic

products.” The defendants admitted the allega-

tions of paragraph 3 of the complaint. Thereby

they literally admitted themselves out of Court.

Further the defendants in their answer admitted

that the functions which they performed (pick-

ing of shrimp and shucking of oysters) “are

separate, distinct, and have no immediate rela-

tionship’’ to the canning, and further “that the

canning * * * is separate, distinct, unrelated to

and apart from the original process in which the

shrimp or oysters are received at the wharf,

going through a distinct and intricate process —

by which they become merchantable food prior to

any of the actual processes needed or required

in eanning.”’ The only allegations of the com-

plaint which the defendants denied were the con-

clusions of the pleading with reference to the _

meaning of the law.

If we would assume that the admissions in

the defendants’ answer were made unintentionally

or by oversight we have but to examine the evi-

dence. A single witness testified for the plain-

tiffs, the superintendent of one of their plants.

He first testified favorably to the defendants as

follows:

““Q. Now, before the Court today, Mr. Mavar,

is whether or not the shucking of oysters, that

is, the operation beginning at the pier and ending

at the pay-off window, if that is a necessary part

of the canning of oysters. Do you know any-

thing about that—I mean, are you acquainted

with that? A. Yes, sir, that is a part of the

canning.”’

The defendants made no point of this admis-

sion, but permitted plaintiffs’ counsel by leading

questions to get the witness to conform his testi-

mony to the plaintiffs’ case.

The plaintiffs had ‘‘other witnesses who would

testify to substantially the same thing as this

witness,’’ and naturally the Court saw no neces-

sity of examining the other witnesses. So the

plaintiffs rested.

The defendants called two witnesses, both wom-

en, one the President and the other the Secre-

tary and Treasurer of the Seafood Workers

Association, a union that was supposed to repre-

sent the defendants.

The President expressed her complete accord

with, and volunteered to make a moving speech

for, the plaintiffs in the following answers:

“Q. If you paid them all the same 75¢ an

hour, many of them would only pick about 10

pounds an hour? A. Right.

“Q. Then you would be paid 75¢ an hour for

only 40¢ an hour? A. That’s right. And, may I

say this, that our workers don’t want that. They

want to earn what they can earn. We have a

good many old workers in our plant, who have

grewn old in service. They can go in these plants,

and they are permitted to go and come as they

please. They can work three or four hours and

go on home, and they thank God every night

of their life that they were permitted to earn

that day. They are satisfied and don’t expect to

make as much as the fast workers. Everybody

is satisfied with what they ean earn.”

The Secretary-Treasurer was scarcely less zeal-

ous than the President in her accord with the

plaintiffs:

“Q. | want to ask if there is anything that

you know about this lawsuit with reference to

the wages of employees, piece working employees,

you care to state in any manner, of the desires

in this ease; have you got any information you

care to give the Judge? A. We would like to

work like we did in the past, which has been

the method of our grandmothers and grand-

fathers. In piece work you earn what you ean,

a seale of work set by the association and then

brought to a meeting with the packers. We

would like to work like we did in the past.”

The sensible precaution was observed by de-

fendants’ counsel of examining several of the

defendants themselves, but simply as to their

conclusions of whether the President and the

Secretary-Treasurer of their organization had

testified truthfully, accurately and correctly. In

each instance the defendant witness answered

yes, and that if asked all the questions the an-

swers would be the same. That was all of the

testimony for the defendants.

Small wonder that the Court found it necessary

to inquire from defendants’ counsel:

“By the Court:

Pr esn cprster ass.

“Let me ask you, Mr. Adam. <As T under-

stand it these defendants are really demanding

the minimum wage if they are covered by it?

“By Mr. Adam, Counsel for Defendants:

“Yes. We claim they come in under the wage

and hour law.”

On appeal, this Court's responsibility is the

more grave in that if the majority is in error,

that error will probably not be corrected because

the amicus curiae can go no further and the

parties seem to be of a single mind.

If this judgment merely concluded the eighteen

named defendants it would be bad enough, but

when we consider that it concludes also “all

persons working for the plaintiffs who are simi-

larly situated with the defendants,”’ and that the

plaintiffs employ about 400 laborers and further

that it sets a pattern for the future and affects

persons to be employed in the days to eome, and

when we still further consider the use of this ease

as a precedent either by the Administrator or

by the Courts, then, if the Court decides this ease

without the safeguard of adequate presentation

of all questions of law and fact by actual antago-

nistie parties, it is clear that the Court. itself

might become the instrument of working an in-

justice. The effeet of the decision in this ease

that shuckers of oysters and cleaners of shrimp

are exempt wholly instead of partially from the

Wage and Hour Law is relatively unimportant

compared to the danger of the precedent set when

we take jurisdiction of a case that involves no

actual controversy.

In declaratory judgment actions such as this

there are involved the interests not only of the em-

ployers who are parties and their employees, but

also of competing employers and their employees,

and still further those of the public. Tennessee

Coal Iron & R. Co. v. Muscoda Local, D. C., 40 F.

Supp. 4, affirmed 5 Cir., 135 F. 2d 320, rehearing de-

nied, 5 Cir., 137 F. 2d 176, affirmed 321 U. 8. 590, 64

S. Ct. 698, 88 L. Ed. 949, is taken as a precedent

for this action. That case was hotly contested;

counterclaims on behalf of the employees were

filed and were successfully prosecuted. There

was no counterclaim in the case now before the

Court. In the Muscoda case the administrator

intervened in the District Court and hence the

interests of the public and of competitors were

represented. Appearance of the Administrator

as amicus curiae in the appellate court, though

helpful, is not sufficient, for the record on which

the case must be decided is concluded in the

District Court.

If the decision in the instant case stood without

dissent, I anticipate that a number of similar

suits would be filed, and that in most of them the

friendly nature of the suit would not be so self

evident as in this case. It seems to me that in

the exercise of the discretion vested in a district

court, it should refuse to proceed with such a

declaratory judgment action in the absence of

the Administrator to represent the interests of

competing employers and employees and of the

public.

I think that the judgment should be reversed

with directions to the district court to dismiss

the cause unless the Administrator becomes a

party, and therefore I respectfully dissent.

APPENDIX B

Statutory Provisions Involved

Fair Labor Standards Act of 1938, as amended,

——-@. 676, 52 Stat. 1060; ¢. 736, 63 Stat. 910 (29

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

Section 6 (a) as amended:

Every employer shall pay to each of his

employees who is engaged in commerce or

in the production of goods for commerce

wages at the following rates—

(1) Not less than 75 cents an hour;

* * * *

Section 11 (c):

Every employer subject to any provision

of this Act or of any order issued under

this Act shall make, keep, and preserve

such records of the persons employed by

him and of the wages, hours, and other

conditions and practices of employment

maintained by him, and shall preserve such

records for such periods of time, and shall

make such reports therefrom to the Ad-

ministrator as he shall prescribe by regula-

tion or order as necessary or appropriate

for the enforcement of the provisions of

this Act or the regulations or orders there-

under.

a * oa ~ *

Section 13 (a) (5) prior to amendment:

The provisions of sections 6 and 7 shall

not apply with respect to * * * (5) any

(35)

employee employed in the catching, taking,

harvesting, cultivating, or farming of any

kind of fish, shellfish, crustacea, sponges,

seaweeds, or other aquatic forms of ani-

mal and vegetable life, including the going

to and returning from work and including

employment in the loading, unloading, or

packing of such products for shipment or

in propagating, processing, marketing,

freezing, canning, curing, storing, or dis-

tributing the above products or byproducts

thereof ;

* * * + *

Section 13 (a) (5) as amended:

The provisions of sections 6 and 7 shall

not apply with respect to * * * (5) any

employee employed in the catching, taking,

harvesting, cultivating, or farming of any

kind of fish, shellfish, crustacea, sponges,

seaweeds, or other acquatie forms of animal

and vegetable life, including the going to and

returning from work and including em-

ployment in the loading, unloading, or

packing of such products for shipment or

in propagating, processing (other than

eanning), marketing, freezing, curing, stor-

ing, or distributing the above products or

byproducts thereof ;

- * * * *

Section 13 (b) (4), as added by the 1949

Amendments :

The provisions of section 7 shall not

apply with respect to * * * (4) any em-

ployee employed in the canning of any

kind of fish, shellfish, or other acquatic

forms of animal or vegetable life, or any

byproduct thereof * * *.

1. ©. GOVERNMENT PRINTING OFF.CE. 1955

tT OE I Bete bP MBI 1 Ot HS

INDEX

Page

Ms 7hU Nc aN ¥ebs cee cdben Peethe cecavane 1

Rn ivr rs Gvecavetedk xedeatariwed oeanccee 1

ns Sintscecsy een eseb nev weekees cae’ 2

i Can sb eh by ees vind Gee e nousear Gka 2

CE arse h cele eueneeddesuwssvakeacuewewe 4

Sr NL, os cow esewdbvosecedees’wanei 8

Argument:

Cannery employees performing necessary prepara-

tory operations as an integral part of the canning

process are employed in “canning” to which Con-

gress extended minimum wage protection in

DE Ruee dee Rae see cad eeeeuRn ye Ue een Revawads 10

A. Both the express language used in the 1949

amendments and the legislative reports

show that the term “canning” includes

closely integrated preparatory work.... 12

B. The term “processing (other than canning)”

covers many types of operations and is

not rendered meaningless by excluding

the closely integrated preparatory work

Ne NNN iid ohacdw butane veekucs eds 15

C. In construing “canning” so as to exclude

closely integrated preparatory work, the

court below has failed to apply appropri-

ate standards for interpreting the Act’s

remedial coverage provisions .......... 17

EE. SiuuavathecaasorapcueKateKatee wie eeude.s 20

CITATIONS

Cases:

Addison v. Holly Hill Co., 322 U.S. 607.......... 19

Alstate Construction Co. v. Durkin, 345 US. 13.. 9,18

Donnely v. Mavar Shrimp & Oyster Co., 190 F. 2d

MP tsessaect seane VemeKKanseenarretens 10, 11, 15, 17

Fleming v. Hawkeye Pearl Button Co., 113 F. 2d

dies aed CaEa VTE CRT ET KERD ES EMRE Ce deneme 17

Cases—Continued

Page

Maneja v. Waialua Agricultural Co., 349 U.S. 254.. 9,18

Phillips Co. v. Walling, 324 U.S 490............. 10,19

Powell v. United States Cartridge Co., 339 US.

OP cur cencepunwcbs obs sk cus on 044 te Wades uae’ 10,19

Tobin v. Blue Channel Corp., 198 F. 2d 245,

8,9, 11, 12, 13, 15, 16, 19

Statutes:

Fair Labor Standards Act, 52 Stat. 1060:

EE Cac tcccagh eens cake baw ewa ends 3

EE aldin a haard nance Mok crak daca AKS wee ack 3

SE DEED diuisacessasuvuek vein ewees 2,12

Fair Labor Standards Act, as amended, 63 Stat.

910:

ce 3, 8, 10, 12, 16, 19

Section 13(b) (4) ............... . 3,4, 8,10, 12,19

Miscellaneous:

95 Cong. Rec. 14932-33; 14874; 14878.......... 9,13, 14

Fishery Statistics of the United States 1951, Fish

and Wildlife Service, United States Department

of the Interior, Washington, D. C., pp. 41-42,

PETES EE Pre Pe re ere pe 16

Interpretative Bulletin No. 14, par. 34, originally

issued August 21, 1939, 1940 WH Man. 180, 194;

1951 WH Man. 35:351, 365; Release M-10, dated

February 14, 1947, 1951 WH Man. 35-62....... 18

Shrimp and Oyster Canning in the Gulf Area,

Wage and Hour and Public Contracts Divi-

sion of the United States, Department of Labor,

February, 1951, unpublished..................

sur

EF BB ae Bi on

aia

WF adduy are denl Mae

g 3

Guthe Supreme Court of the United States

OcToBER TERM, 1955

No. 44

JAMES P. MITCHELL, SECRETARY OF LABOR, UNITED

StTaTES DEPARTMENT OF LABOR, PETITIONER

Vv.

MyrtLe Grove PACKING COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE SECRETARY OF LABOR

OPINIONS BELOW

The findings of fact and conclusions of law of the

District Court (R. 82-85) are reported at 117 F.

Supp. 599. The per curiam opinion of the Court of

Appeals (R. 88) is reported at 217 F. 2d 952.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on January 12, 1955 (R. 88-89). The petition

for a writ of certiorari was filed April 7, 1955, and

(1)

ewe ——

was granted May 23, 1955 (R. 96). The jurisdic-

tion of this Court is invoked under 28 U.S.C.

1254(1).

Be ie a

QUESTION PRESENTED

Whether employees who remove the shell from

seafoods as an integrated step in the continuous

and uninterrupted process of canning these prod-

ucts are employed in ‘‘canning’’, which Section 13

(b) (4) of the Fair Labor Standards Act exempts

from the overtime but not from the minimum wage

provisions of that Act, or are employed in ‘‘proe-

essing (other than canning)”’, which Section 13

(a) (5) exempts from both the overtime and mini-

mum wage provisions.

STATUTE INVOLVED

1. As originally enacted, Section 13(a)(5) of

the Fair Labor Standards Act, 52 Stat. 1060, 1067,

29 U.S.C. (1946 ed.) 213(a)(5), exempted from

both the wage and hour requirements of the Act

persons employed in various phases of seafood

production including the ‘‘processing’’ and ‘‘can-

ning”’’ of such products. Section 13(a)(5) pro-

vided:

The provisions of sections 6 and 7 shall not

apply with respect to * * * (5) any employee

employed in the catching, taking, harvesting,

cultivating, or farming of any kind of fish,

shellfish, crustacea, sponges, seaweeds, or other

aquatic forms of animal and vegetable life, <

including the going to and returning from y

work and including employment in the load-

ASEAO IRE PEI

Sal Fe

AMPS,

ing, unloading, or packing of such products

for shipment or in propagating, processing,

marketing, freezing, canning, curing, storing,

or distributing the above products or byprod-

ucts thereof ;

Sections 6 and 7 of the Act, referred to in this sec-

tion, provide respectively for minimum wages and

for overtime pay.

2. In 1949, Section 13(a)(5) was amended by

the Fair Labor Standards Amendments, 63 Stat.

910, 917, 29 U.S.C. (1952 ed.) 213(a) (5), so that

‘‘canning’’ was deleted from this list of exempted

activities and ‘* processing’’ was qualified by insert-

ing immediately after that term the parenthetical

phrase ‘‘(other than canning)’’, the section now

providing :

The provisions of sections 6 and 7 shall not

apply with respect to * * * (5) any employee

employed in the catching, taking, harvesting,

cultivating, or farming of any kind of fish,

shellfish, crustacea, sponges, seaweeds, or other

aquatic forms of animal and vegetable life, in-

cluding the going to and returning from work

and including employment in the loading, un-

loading, or packing of such products for ship-

ment or in propagating, processing (other than

canning), marketing, freeezing, curing, stor-

ing, or distributing the above products or by-

products thereof ;

At the same time a new provision, Section 13(b)

(4), was added, 63 Stat. 918, 29 U.S.C. (1952 ed.)

213(b) (4), providing an exemption from the over-

time compensation requirement, but not from the

minimum wage, for the **canning”’ of seafood prod-

ucts. It provides:

The provisions of section 7 shall not apply

with respect to * * * (4) any employee em-

ployed in the canning of any kind of fish, shell-

fish, or other aquatic forms of animal or vege-

table life, or any byproduct thereof ;

STATEMENT

This action was brought in 1952 by the Secre-

tary of Labor, under Section 17 of the Fair Labor

Standards Act, in the Eastern District of Louisiana

to enjoin respondent from violating the minimum

wage and record-keeping provisions of the Act.

The employees concerned peel the shrimp and

shuck the oysters in respondent’s shrimp and oys-

ter canning plant as an integrated step in the con-

tinuous and speedy process which is used in can-

ning these products. ’

The facts found by the District Court (R. 83-84)

are based upon a stipulation of the parties (R. 26-

28) and the undisputed testimony of respondent's

vice-president (R. 31-51, 68-82) and of its plant

manager (R, 52-67), These findings may be sum-

marized as follows:

' Employees -performing such necessary preparatory work

constitute some 75 ‘o 907 of the production workers in

shrimp and oyster canning plants. Shrimp and Oyster Can-

ning in the Gulf Area, Wage and Hour and Publie Contracts

Division of the United States Department of Labor, February

1951, unpublished.

Respondent is the Myrtle Grove Packing Com-

pany, a Louisiana corporation, which is almost

exclusively engaged in the business of canning

shrimp and oysters for interstate commerce (R.

83-Fdg. 1; R. 26-27). During the period from

January 1, 1951, to September 30, 1952, which was

stipulated and found to be ‘‘typical’’ of respond-

ent’s ‘operations and practices’? (R. 83-Fdg. 1;

R. 27), respondent’s sales of canned shrimp and

oysters amounted to $930,356.34 and constituted

97.67% of its total sales (R. 83-Fdg. 1; R. 28). ?

‘Substantially all of the shrimp and oysters han-

dled (approximately 95°) )”’ are produced for in-

terstate commerce (R. 83-Fdg. 1; R. 26).

Respondent organized its canning operations as

a continuous process, in which the peeling and

shucking of the shrimp and oysters was but one of

a number of closely integrated steps (R. 83-Fdg.

2-7; R. 84-Fdg. 8-15). Thus ‘the total elapsed

time from the time the shrimp are dumped on the

table to be peeled to the completion of the final

sterilization of the cans, is about one to two hours”’

(R. 84-Fdy. 14); and “the entire handling of oys-

ters”’ from ‘the beginning of the steaming process

to the completion of the final sterilization of the

* In oniy one of the seven quarterly periods included in the

stipulation did respondent sell any shrimp or oysters pro-

cessed by a method other than canning, and such sales

amounted to $7,569.05, or only 0.8 of 147, of respondent's total

sales (R. 28). The balance of respondent's sales, 1.53% of

the total, consisted of shrimp and oysters sold in the shell

with no processing whatever (R. 28), such sales ordinarily

being made only when the supply available was too small

to justify employing a canning crew (R. 37).

hermetically sealed cans requires only about two

hours”? (R. 83-Fdg. 7). Once the canning of the

shrimp or oysters is begun they are not held at any

step except to accumulate a sufficient quantity to

begin the next step (R. 84-Fdg. 8, 15).

The first step in the canning of oysters is to cook

them partially by steaming in retorts for five to

ten minutes, a step which ‘tis used only when the

oysters are to be eanned’’ (R. 83-Fdg. 3). ** Fol-

lowing such steaming, the oysters are then dumped

into tubs, partially opened and cooked and are re-

moved from the shuck by the employees here in-

volved’ (R. 83-Fdg. 4). After a shucker weighs

the oysters he has shucked to determine his piece

rate earnings, they are dumped into a tub for wash-

ing (R. 83-Fdg. 4), and are then floated into an-

other room where they are inspected, placed in a

brine tank, and reinspected (R. 83-Fdg. 5). The

oysters are then carried to the ‘packing reom”™’

where they are placed in cans, sealed, and sub-

jected to further heat treatment (R. 83-Fdg. 6).

The court specifically found that respondent **de-

sire[s] and * * * attempt[s] to make the han-

dling of the oysters in the manner above set forth a

continuous process’’ (R. 84-Fdg. 8).

Shrimp are canned in accordance with a very

similar procedure, They ‘‘are first dumped, raw,

on a table where the employees here involved re-

move the edible portions’? (R. 84-Fdg. 10).* They

* The piece rate earnings of these employees are determined

by weighing the inedible portions which they have removed

(R. 84-Fdg. 12).

are then floated in flumes to an inspection belt, in-

spected, and cooked in a blanching tank (R. 84-

Mdg. 11). After reinspection and grading for size,

they are carried to the ‘packing room’’ where they

are placed in cans, sealed and heat treated CR. 84-

dg. 13). The court again specifically found that

respondent ‘‘desire[s] * * * and every effort is

expended to make the process a continuous one”

(R. 84-Fdg. 15).

The testimony of respondent's vice-president

emphasized the complete integration between the

preparatory work performed by the employees

here involved and the actual placing of the sea-

food into cans. He testified that ‘for all practical

purposes’’ respondent Myrtle Grove had “done

nothing but can” shrimp and oysters since the

opening of its plant in 1946 er 1947 (R. 47,50) and

had not to his knowledge ever canned “shrimp or

oysters that were shelled or picked somewhere

else’’ (R. 48). In addition he conceded that the

handling of beth oysters and shrimp had been

organized “as a continuous operation” (R. 36);

that the oysters were ‘immediately flamed into the

packing room” as soon as the shucker had finished

and weighed each pail on which he worked (R. 33-

34); and that the shrimp were similarly handled

CR. 35-36),

The District Court held for respondent and dis-

missed the complaint (R. 85), on the sole ground

that **[i]ndependent consideration of this case by

this court is precluded by the decision of the United

States Court of Appeals for the Fifth Circuit in

Donnely v. Mavar Shrimp & Oyster Co., 190 F. 2d.

409’ (R. 84-85). The Court of Appeals affirmed

in a one line per curiam opinion (R. 88) citing only

its Donnely decision.‘

SUMMARY OF ARGUMENT

The 1949 amendments to the Fair Labor Stand-

ards Act extended minimum wage benefits to em-

ployees engaged in ‘‘canning’’ seafoods and re-

lated products and limited the exemption thereto-

fore granted to employees engaged in ‘‘ processing”’

to those engaged in ‘‘processing (other than can-

ning).’? When these amendments are analyzed, it

becomes evident that the Fourth Circuit in Tobin v.

Blue Channel Corp., 198 F. 2d 245, correctly de-

cided that cannery employees, performing neces-

sary preparatory operations as an integrated step

in the continuous and speedy process used in can-

ning seafood, were engaged in ‘‘canning’’ and not

in ‘‘processing (other than canning).’’ The deci-

sion below, which reached a contrary conclusion, is

erroneous and should be reversed.

A. The plain meaning and express legislative

purpose of the exemptions in issue support the

Fourth Circuit’s Blue Channel holding that the

term ‘‘ecanning’’ includes necessary preparatory

work of the type here involved. The obvious de-

sign of the 1949 amendments, in changing Section

13(a)(5) and adding Section 13(b) (4), was to ex-

tend the minimum wage benefits of the Act to work-

4Both the majority and dissenting opinions of the Fifth

Circuit in the Donnely case are included in full in the printed

record of the case at bar (R. 89-96),

ers in the fishery and seafood industries employed

} in ‘‘canning.”’ If there were any doubt that the

term ‘“‘canning’’ was meant to include necessary

preparatory operations, it is Specifically resolved

by the legislative reports. The amendments, as en-

acted, were agreed on by a conference committee,

and the reports of both Senate and House Confer-

ces expressly stated that “canning” includes “nee-

essary preparatory operations performed on the

products before they are placed in bottles, cans, or

other containers.’’ 95 Cong. Rec. 14932-33 ; 14878.

B. The decision below rests solely on the errone-

ous assumption that the term ‘processing (other

than canning)” in Section 13(a)(5) would be

meaningless if not construed to embrace prepara-

tory operations such as picking and shucking. As

the Fourth Circuit pointed out in Blue Channel:

‘Certainly, scores of situations could be mentioned

in which products are processed but not canned,”’

198 F. 2d at 248. The exemption for “processing

(other than eanning)’’ has substantial practical

meaning and ample scope for operation apart from

the preparatory operations necessary for canning.

(. The consistent administrative interpretation

of the term “‘canning,”’ both prior and subsequent

to the 1949 amendments, is in accord with the

Fourth Cireuit’s decision. The failure of Congress

to disturb this administrative construction at the

time of the 1949 amendments confirms its validity.

Manejav. Waialua Agricultural Co., 349 US. 254 ;

Alstate Construction Co. vy. Durkin, 345 U.S. 13.

Moreover, the Fifth Cireuit’s broad construction

of Section 13(a)(5) and narrow construction of

Section 13(b)(4) is diametrically opposed to this

Court’s repeated rulings that exemptions from this

remedial legislation must be narrowly construed

and its coverage provisions liberally construed.

Phillips Co. v. Walling, 324 U.S. 490, 493; Powell v.

United States Cartridge Co., 339 U.S. 497, 517.

ARGUMENT

CANNERY EMPLOYEES PERFORMING NECESSARY PRE-

PARATORY OPERATIONS AS AN INTEGRAL ParT OF

THE CANNING Process ARE EMPLOYED IN ‘‘CAN-

NING’’ TO WHICH CONGRESS EXTENDED MINIMUM

Wace PRorection rn 1949.

The 1949 amendments to the Fair Labor Stand-

ards Act supra, pp. 3-4, extended minimum wage

benefits to employees engaged in ‘‘canning’’ sea-

foods and related products and limited the exemp-

tion theretofore granted to employees engaged in

‘*processing’’ to those engaged in ‘‘processing

(other than canning).’’ In applying these amend-

ments, a square conflict has developed between the

Fourth and Fifth Circuits as regards cannery em-

ployees engaged in the regular and necessary pre-

paratory work of removing the shell and other

inedible portions of seafood as part of the continu-

ous, speedy, and uninterrupted process normally

used by respondent and other cannery operators in

the production of canned seafood. The Fifth Cir-

cuit, in the instant case and in its earlier decision

in Donnely v. Mavar Shrimp & Oyster Co., 190 F.2d

409, concluded that such cannery employees were

engaged in ‘“‘ processing (other than canning) ’’ and

thus excluded from minimum wage benefits. The

rm 1

Fourth Circuit in Tobin v. Blue Channel Corp., 198

F.2d 245, held that these employees were engaged

in *‘canning”’ and, therefore, entitled to the protec-

tion of the Act.

Donnely v. Mavar Shrimp & Oyster Co., su pra,

unlike the instant case, was a declaratory judgment

action instituted by employees. As pointed out by

Judge Rives in his dissenting opinion in that case,

190 F.2d at 412-414 (R. 92-96), the Government

Was not a party to the litigation, which appeared to

be “plainly a ‘friendly’ suit’? in which “both sides

desired the same result’? (R. 92-93). The parties

there had in effect stipulated the very issue in con-

troversy in the instant case by agreeing that none

of the employees involved was ‘‘engaged in the can-

ning of sea foods or aquatic products,” and that the

picking of shrimp and the shucking of oysters ‘are

separate, distinct, and have no immediate relation-

ship”’ to canning (R. 93). On the basis of this fac-

tual concession made by the parties, a majority of

the panel which sat on that case concluded (R.

89-92) that such employees were engaged in **proe-

essing (other than canning)’’ within the meaning

of Section 13(a) (5) rather than “‘eanning’’ within

Section 13(b) (4).

Tobin vy. Blue Channel Corp., supra, in

which the Fourth Circuit reached a contrary re-

sult, was brought by the Secretary of Labor. Ina

unanimous opinion, that court carefully reviewed

hoth the legislative history of the 1949 amend-

ments and the factual data regarding the close in-

tegration of each step in the canning process. The

majority decision in Donnely was considered and

rejected as erroneous. The court held that can-

nery employees who removed crab meat from

the claws of the crab preparatory to its being placed

in cans were employed in ‘‘canning’’ within the

meaning of the amended Act. Pointing out that

‘‘extracting the crab meat from the claws, is an

early and preparatory, but none the less an essen-

tial and integrated, step in the continuous and un-

interrupted process of canning crabmeat,’’ the

court recognized that it could not ‘‘view the neces-

sary preparatory operations of the claw pickers in

picking and sorting the crabmeat in isolation from

the canning process as a whole.’”’? 198 F.2d at 248.

A. Both the Express Language Used in the 1949 Amend-

ments and the Legislative Reports Show that the

Term “Canning” Includes Closely Integrated Pre-

paratory Work.

Prior to 1949, persons employed in various as-

pects of the production of seafood and related prod-

ucts, including ‘‘processing’’ and ‘*canning,’’ were

exempted by Section 13(a)(5) of the Fair Labor

Standards Act, supra, pp. 2-3, from both the mini-

mum wage and overtime requirements of that Act.

In 1949 the Act was amended, by the addition of a

new Section 13(b) (4), supra, p. 4, to extend mini-

mum wage benefits to employees engaged in ‘‘can-

ning’’ such products. At the same time, hy amend-

ments made to Section 13(a)(5), supra, p. 3, the

word ‘‘canning’’ was deleted from this section and

the exemption applicable to those employed in

‘‘pnrocessing’’ was limited to ‘‘processing (other

than canning).’’

; el

The decision in the Blue Channel ease is in direct

accord with both the normal meaning of these

terms and with the express purpose of the statute in

which they appear. The obvious design of the

amendments was to extend the minimum wage

henefits of the Act, but not the overtime provisions,

to those workers in the fishery and seafood industry

employed in ‘‘canning.’’? To make it unmistakably

clear that the complete exemption would no longer

apply to canning, the generic word **processing”’

was expressly qualified by the insertion of a paren-

thetical phrase which can have had no purpose

other than to preclude its extension to anything

properly included in the term ‘“‘canning.”’

If there were any doubt as to the meaning of

these amendments, insofar as concerns the inte-

grated preparatory operations here involved, it is

resolved by the legislative reports. Both the form

and the substance of the Section 13(a) (5) and See-

tion 13(b) (4) exemptions were the work of the Con-

ference Committee which expressly explained that

“canning”’ includes ‘‘necessary preparatory opera-

tions performed on the products before they are

placed in bottles, cans, or other containers’’. 95

Cong. Ree. 14932-33. (Emphasis added. )

As originally adopted by the House of Repre-

sentatives and the Senate, the amendments had dif-

fered in their treatment of fish canning. The Sen-

ate amendment made no chaage in the 1938 Act in

this particular. The House bill provided a 14-

workweek exemption for any industry engaged in

the first processing or canning of fish in the raw or

Ae,

awl npents &, ,

natural state. The bills were then referred to a

conference committee to reconcile the differences

(95 Cong. Rec. 14932). The compromise bill as

agreed on by this committee was adopted and en-

acted into law. The unanimous report of the House

conferees, explaining this bill to the House of Rep-

resentatives before it was adopted by that body,

said with respect to the activities embraced in the

* word ‘‘eanning”’:

* * * Under the conference agreement ‘‘can-

ning’’ means hermetically sealing and steriliz-

ing or pasteurizing and has reference to a

process involving the performance of such

operations. It also means other operations per-

formed in connection therewith such as neces-

sary preparatory operations performed on the

products before they are placed in bottles, cans,

or other containers to be hermetically sealed,

as well as the actual placing of the commodi-

ties in such containers. Also included are sub-

sequent operations such as the labeling of the

cans or other containers and the placing of the

sealed containers in cases or boxes whether

such subsequent operations are performed as a

part of an uninterrupted or interrupted proc-

ess. [95 Cong. Ree. 14932-33; emphasis

added. ]

' The same description of ‘‘canning”’ appears in the

_ statement submitted by a majority of the Senate

‘ Conference. 95 Cong. Ree. 14874, at 14878.

Under the restrictive interpretation of the term

‘“‘canning”’’ adopted by the court below, minimum

wage protection is accorded only to those canning

plant employees who work in the ‘‘packing room”?

(R. 83-Fdg. 6; R. 84-Fdg. 13) where the food is

actually placed in the cans and hermetically sealed.

Such protection is denied to cannery employees

who work in rooms adjoining the **packing room’’

performing necessary preparatory work on the

food about to be placed in the cans and immediately

hefore it is given its final handling by the ** packing

room”’ crew. This distinction not only does vio-

lence to the normal meaning of the term **ean-

ning,’ but is squarely contrary to the legislative

purpose manifested by the 1949 amendments and

the accompanying congressional reports. This is

particularly so where, as here and in Blue Chan nel,

“canning is the main objective * * * and * * * js

accomplished by a continuous series of operations”’

(198 F.2d at 248).

B. The Term “Processing (Other Than Canning)”

Covers Many Types of Operations and Is Not Ren-

dered Meaningless by Excluding the Closely In-

tegrated Preparatory Work Here Involved.

In Donnely, the court below expressly noted the

congressional object of including within the term

‘‘canning”’ *‘every other operation necessarily per-

formed on the products before they are placed in

cans’? (R. 90; 190 F. 2d at 411), but declined to give

it effect as regards the peeling and shucking opera-

tions here involved. Its exclusion of these opera-

tions seems to rest solely on an erroneous factual

assumption that the phrase “processing (other

than canning)’’ used in Section 13(a)(5), as

amended, supra, p. 3, would be meaningless if

not construed to embrace peeling and shucking.

As the Fourth Circuit pointed out in Blue

Channel, **[clertainly, scores of situations could

be mentioned in which products are processed but

not canned.’’ 198 F. 2d at 248. One ready ex-

ample of the very substantial meaning and practi-

cal importance of the exemption for ‘‘ processing

(other than canning) ’’ is the filleting of fresh fish.

Another is the production of oil and meal from

menhaden and other fish.” Neither the extracting

and rendering of oil from the fish nor the filleting

of fresh fish is ineluded in the specifically men-

tioned operations—other than ‘‘processing’’—ex-

empt under Section 13(a)(5). Furthermore, the

terms of the exemption itself show that it applies

to many products which are processed in ways not

involving freezing, curing, storing or canning. Its

terms embrace not only fish, but also ‘‘sponges,

seaweeds, or other aquatic forms of animal and

vegetable life’’. '! Thus, the general word ** process-

ing’’ may apply to such activities as the drying of

seaweed preparatory to the manufacture of agar

and to the drying and cleaning of sponges.

The processes applied to the materials men-

tioned in Section 13(a)(5) are, therefore, many

*“Practically the entire 1951 menhaden production was

used in the manufacture of oil and meal.” Fishery Statistics

of the United States 1951, Fish and Wildlife Service, United

States Department of the Interior, Washington, D. C., p.

289. The value of such oil and meal was $23,650,677. Jbid.,

pp. 41-42.

and varied. The reasonable construction of the

word ‘‘processing’’, as used in that section, would

seem to include all of such processes, though not

specifically named, except the process of canning,

which has been specifically excluded. This inter-

pretation gives the word **processing’’ the mean-

ing which context and legislative history require,

without distorting the ordinary meaning of the

term ‘‘canning.’’ ®

C. In Construing “Canning” So as to Exclude Closely

Integrated Preparatory Work, the Court Below

Has Failed to Apply Appropriate Standards For

Interpreting the Act’s Remedial Coverage Provi-

sions.

The decision below, and that in Donnely, is also

inconsistent with well-established principles, re-

peatedly emphasized in the decisions of this Court,

for interpreting the Fair Labor Standards Act.

These two Fifth Cireuit decisions totally ignore

the long-standing and directly pertinent admini-

strative interpretation of the term ‘canning’ as

used in the Act both prior and subsequent to the

*The fishing industry itself has regarded “processing” as

a generic term including various methods of preparing its

products for market, among which are “canning,” “filleting”’,

“extracting of oil”, and “manufacturing of meal”. See

Fleming v. Hawkeye Pearl Button Co., 113 F. 2d 52, 57

(C.A. 8), quoting the industry's definition of the term in its

NRA Code:

The term “processing” means the packing in ice of,

filleting of, cutting of, freezing of, salting of, smoking of,

drying of, canning of, extracting oil from, manufacturing

meal or fertilizer from, products of the industry ; or other-

Wise manipulating products of the industry; * * *.

1949 amendments. They also adopt an approach

squarely opposed to this Court’s repeated holdings

that the Act’s coverage provisions should be read

liberally and its exemptions narrowly.

The consistent administrative interpretation of

the term ‘‘canning’’, first adopted in 1939, has

been that it ‘‘includes the necessary preparatory

operations performed * * * before the commodities

are placed in bottles, cans, or other hermetically

sealed containers * * *. These operations may in-

clude all types of preparations of the product,

such as heating, cooking, peeling, © .weezing, cut-

ting, cleaning, mixing, ete.’” Significantly, this was

the administrative construction even where its ef-

fect was to extend the scope of the various exemp-

tions for ‘‘caning’’ prior to the 1949 amendments,

it being recognized that any reasonable interpre-

tation of the term should include such necessary

preparatory operations. If the somewhat broader

construction of the term was warranted when it

resulted in extending the scope of an exemption,

there is certainly no justification for abandoning

it when it operates to liberalize the scope of cover-

age of the minimum wage. The validity of the Ad-

ministrator’s construction is confirmed by the fact

that it was left unaltered by Congress in the

1949 amendments. Maneja v. Waialua Agricul-

tural Co., 349 U.S. 254, 270; Alstate Construction

Co. Vv. Durkin, 345 U.S. 13, 17.

7 Interpretative Bulletin No. 14, par. 34, originally issued

August 21, 1939, 1940 WH Man. 180, 194; 1951 WH Man.

35:351, 365; Release M-10, dated February 14, 1947, 1951

WH Man. 35-62.

SERRE Re

The decision below gives the broadest possible

scope to the complete exemptions of Section 13(a)

(5) and construes as narrowly as possible the

language of Section 13(b) (4), which was enacted

to extend the coverage of the mitimum wage pro-

visions of the Act. As the Four‘h Circuit said of

the latter provision in Blue Channel: ‘We are

here dealing with a remedial statute. Its terms of

coverage should therefore, be liberally rather than

narrowly construed’, 198 F. 2d at 248. The Fifth

Circuit’s approach is thus diametrically opposed to

this Court’s repeated and consistent rulings that

“[a]ny exemption from such humanitarian and

remedial legislation must * * * be narrowly con-

strued”’, and its coverage provisions liberally con-

strued. Phillips Co. v. Walling, 324 U.S. 490, 493;

Addison vy. Holly Hill Co., 322 U.S. 607, 617;

Powell v United States Cartridge Co., 339 US.

497, 517.

CONCLUSION

The decision and judgment of the Fifth Cireuit

should be reversed, and the case remanded to the

District Court with directions to enter a decree for

petitioner.

Respectfully submitted,

Simon E. SosBe.orr,

Solicitor General.

Gray THORON,

Assistant to the Solictor General.

Stuart RorHMAN,

Solicitor,

BesstE MARGOLIN,

Assistant Solicitor,

Haron 8S. Saxe,

Attorney,

Department of Labor.

Aveust, 1955,

TT U.S. GOVERNMENT PRINTING OFFICE: 1958 355309 2"

FILD

SEP24 |

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1955

No. 44

JAMES P. MITCHELL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT

OF LABOR,

Petitioner,

versus

MYRTLE GROVE PACKING COMPANY,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit.

BRIEF FOR THE RESPONDENT, MYRTLE GROVE

PACKING COMPANY.

W. L. GUICE,

Attorney for Myrtle Grove Packing Com-

pany, Respondent.

P. O. BOX 153, BILOXI, MISS.

CHALIN 0. PEREZ,

JACOB D. GUICE,

Of Counsel.

Montgomery & Co., “The Brief Specialists”, 430 Chartres St.. N. O., La. =>

SUBJECT INDEX.

Page

OPINIONS BELOW Sr ke ress On 1

JURISDICTION .............. 1

QUESTION PRESENTED ...._—s—a—ad«sr—r<—“‘(sws—ststs~sS 2

STATUTE INVOLVED............s——sdi. 2

ia en ar 2

SUMMARY OF ARGUMENT. ..__ssss—s——siétzs ei 5

Argument:

Oyster shuckers and shrimp pickers, while per-

forming a process that effectually changes

natural edible and live shrimp and oysters into

a commodity that could be canned, were not

necessarily involved in a process of canning.

The whole question in this case revolves around

the meaning of the words used by the Congress

in its 1949 Amendment to the Fair Labor

Standards Act... 7

A. Nothing in the language of the 1949

amendment or the legislative reports is

repugnant to the opinion in the Donnelly

Ce CR ECT OR a ee ek 10

B. Any reasonable construction of the word

“processing” as use¢ in the exemption,

shows that such processing was qualified

only by the actual act of canning as ordi-

narily understood .. its ng 13

SUBJECT INDEX— (Continued).

Page

C. The Donnelly case in its construction of

the parenthetical word “canning” as used

in the exemption does nothing to affect the

remedial purposes of the Fair Labor

Standards Act : 15

D. The word “processing”, as used in this

exemption of persons engaged in the fish-

ing industry, is a general term, embracing

every process with reference to edible sea-

food, except the process of canning 20

E. Similarity or necessity of work in a field

of production or activity does not require

a conclusion of identity 36

CONCLUSION é . 43

CITATIONS.

Cases:

Addison v. Holly Hill Trust Products, 332 U. S. 607,

617, 64 S. Ct. 1215, 1221 32

Anderson v. Manhattan Lighterage Corp., 148 F.

(2d) 971 : 9, 25, 35

Borden Company v. Borello, 325 U. S. 679 42

Cincinnati Soap Company v. United States, D. C.,

22 F. Supp. 141, 143 42

Cochrane yv. Deener, 94 U. S. 780-788, 24 L. Ed.

139 4l

etnies le

te.

Wa 8880 6

tit

CITATIONS.

Page

Cases— (Continued) :

Davis v. Goodman Lumber Company, 135 F. (2d)

52 is! AE Ghee ee sat 31

Donnelly v. Mavar Shrimp & Oyster Co., 190 F.

(2d) 409 ..... ee nee ....5, 8, 20, 39

10 East 40th Street Bldg., Inc., v. Callus, 325 U.

S. 578, 65 S. Ct. 1227,1229. 38, 42

Farmers’ Reservoir and Irrigation Co. v. McComb,

337 U. S. 755, 759, 69 S. Ct. 1274, 1277 __ 36

Henry v. Markesan State Bank, 8 Cir., 68 F. (2d)

554, 557 . rat +% ; 42

Kirschbaum v. Walling, 316 U.S. 523. __ eas 42

Maneja v. Waialua Agricultural Company, 349 U.

S. 254 Pree 5 14

McComb v. Consolidated Fisheries, 174 F. (2d) 74 30

Phillips Co. v. Walling, 65 S. Ct. 807, 324 U. S.

490 : 15, 33, 37

State v. Pacific American Fisheries, 73 Wash. 37 P.

452-54 ef E 42

Tobin v. Blue Channel Corp., 198 F. (2d) 245 8, 9, 31

Waldman vy. Swanfeldt, 9 Cir., 66 F. (2d) 294, 295 42

CITATIONS.

Cases— (Continued) :

Waller v. Humphreys, 1383 Fed. (2d) 193 (C. A.,

iad deal theese ag Re sete eee Cees 30, 42

Walling v. W. D. Haden Company, 153 F. (2d)

Pe RO RD ee et as ee als 37

Statutes:

Fair Labor Standards Act, 52 Stat. 1060:

es ee SE rs vee ee ee 6, 24

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1955

No. 44

JAMES P. MITCHELL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT

OF LABOR,

Petitioner,

versus

MYRTLE GROVE PACKING COMPANY,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit.

BRIEF FOR THE RESPONDENT, MYRTLE GROVE

PACKING COMPANY.

OPINIONS BELOW.

The statement of the

petitioner as to the opinions

is correct.

JURISDICTION.

The jurisdiction is properly stated.

QUESTION PRESENTED.

The question is incorrectly stated in that the pe-

titioner assumes that the court found below that there

was an integrated process, continuous and uninterrupted,

of canning shrimp and oysters, whereas, as contended by

the respondent and found by the court, the employees of

the respondent were not engaged in a continuous and un-

interrupted process of canning.

STATUTE INVOLVED.

This question is, as we believe, properly stated.

STATEMENT.

The statement of facts set out in the brief of the

petitioner in the main states the true facts of the case, but

as in all other statements made by the petitioner, it is

tinged with his absolute belief in the error of fact in the

decision of the court below.

However, in order to expedite the process of the

law, we shall not attempt to restate the case, except to call

to the court’s attention the following:

Petitioner’s statement incorrectly alleges that

“After a shucker weighs the oysters he has shucked to de-

termine his piece rate earning, they are dumped into a

tub for washing, (R. 83, Fdg. 4), and are then floated into

another room where they are inspected, placed in a brine

tank, and reinspected. (R. 83, Fdg. 5). The oysters are

then carried to the ‘packing room * * *’.” (Petitioner’s

Brief, p. 6).

The undisputed facts show that after the meat

is taken by the shucker to be weighed to determine his

piece rate pay, it is flumed directly into the “packing

room” where the oyster meat is “inspected and washed and

portions of shells and oysters that might not be top qual-

ity are removed. Then they are carried along to packing

tables where they are put into cans.” (R. 32).

Petitioner’s statement also incorrectly alleges that

“They (the raw picked shrimp) are then floated in flumes

to an inspection belt, inspected and cooked in a blanching

tank. (R. 84, Fdg. 11). After reinspecting and grading

for size, they are carried to the ‘packing room’ where they

are placed in cans, sealed and heat treated.( R. 84, Fdg.

13)”. (Petitioner’s Brief, p. 7).

The undisputed facts again show that “* * * the

pickers pick the hulls, Separate the hulls from the meat, and

they keep the hulls in a bucket and the meat is flumed

immediately into the packing room where it goes for can-

ning there. (R. 35). After this, the shrimp meat is par-

tially cooked, cooled and inspected, partial hulls removed

from them, and carried to a grading machine which sep-

arates them for size. Then they are carried to the pack-

ing table and each can weighed and run on down to the

canning machine line, and then put into a retort Bettle

for a final cooking. (R. 36).

In R. 26 there was a stipulation entered into be-

tween the Department of Labor and the Myrtle Grove

Packing Company, and in this stipulation in paragraph

2, the Department of Labor agreed to the following facts:

“Defendant” (Myrtle Grove Packing Company) is engaged

in the purchase, handling, processing, canning, sale and

distribution of shrimp and oysters.” And in paragraph 3 of

the same agreement, R. 26, it was further agreed as fol-

lows: “Substantially all of the shrimp and oysters handled

(approximately 95%) were processed and canned.” It

would therefore appear that the Department of Labor it-

self agreed that there was a process separate from canning,

for nowhere in the record is there mentioned any process

involving these shrimp and oysters aside from the process

of canning, except the original process carried on by the

shuckers of oysters and pickers of shrimp in their work

looking towards the processing of shrimp and oysters so

that when separated from shells and hulls, both valuable

by-products, the meat could be used in various ways as

salable, edible seafood.

As shown by the record, the “handling” referred to

consists of unloading the shrimp and oysters and convey-

ing them to the point at which the first processing begins,

which in the case of shrimp is the separating of the hulls

from the meats and in the case of oysters is the washing

and initial steaming to make the oysters more readily

opened, and the actual opening of the oysters, and separat-

ing the meat from the shell. (R. 32, 35). (This Brief,

Appendices 2 and 4).

“Canning” in the case of shrimp consists of the

preparatory operations to the actually hermetically seal-

ing of the can, such as the cleaning, inspecting, boiling,

reinspecting and grading, placing in cans, seasoning of

the meats in the cans together with the finally hermeti-

cally sealing of the cans, casing and labeling. (R. 49);

(This Brief, Appendix 5).

A |

’

”

Lee eee PRR hie aac oa

Canning of oysters consists of washing, inspecting,

weighing of the meats, placing in cans and seasoning to-

gether with the hermetically sealing of the cans, including

sterilization by steaming, cooking, casing and labeling.

(R. 49); (This Brief, Appendix 3).

It would further appear that the District Court,

in his finding of fact, adopted this stipulation as a portion

of his finding of fact. (R. 83).

Certainly the record further abundantly shows that

there was no need for any continuity of operation, either

with reference to shrimp or oysters, except for the pur-

pose of saving the necessity of refrigerating the processed

food, and when this was done, both the shrimp and oysters

could be packed and were sometimes packed in canneries

miles away. In other words, the rapidity of all of the

efforts of the various persons having to do with shrimp

and oysters was in order to prevent any injury to the

health of users of this product.

SUMMARY OF ARGUMENT.

Congress added when amending in 1949 Sec. 13(a)

5 of Fair Labor Standards Act “(other than canning)” to

processing. The Fifth Circuit Court of Appeals in Don-

nelly v. Mavar Shrimp and Oyster Company, 190 F, (2d)

409, decided against the Labor Department’s contention

that canning included the earlier processes of shucking

of oysters and hulling or picking shrimp, finding that can-

ning included only those steps necessary to canning. These

acts are performed by a class having special skills and,

as a class, their activities as laborers have the same im-

practicability of regulation as seamen.

rE oe ve

The Donnelly case expressed the view of Congress

in its holding that the Conference Report of Congress

meant “necessary preparatory operations”, performed on

products before they are placed jm bottles, cans, or other

containers” to mean those things and operations as ordi-

narily understood to be canning and so defined.

The purpose of the Fair Labor Standards Act is to

give able bodied men and women a reasonable pay for a

fair day’s work. The workers in this industry have

progressed at a higher rate than those covered by the act.

Their pay basis enables those who are not able bodied to as-

sist in earning a living.

The Donnelly rule will allow a continued ac-

complishment of the purposes of Act. The Blue Channel

rule will result in the replacement of many of these work-

ers by machinery.

“Processing” as used in Sec. 13 (a) (5) of the Act

includes all the steps in preparing seafood to be consumed.

Canning limited “processing” only as canning is ordi-

narily understood and as it is defined. When shrimp are

picked or oysters shucked, the seafood is transformed into

a usable product. It can be further processed by curing,

freezing or canning. It can be consumed in that state.

This exemption in favor of these workers is be-

cause they are a separate and distinct class of worker.

They are free, independent, and work when and for whom

they please. Their working procedures have grown over a

period of, years. If they are changed the employees will

have to be replaced by machines.

Since canning does not necessarily include every

step in the chain of causation it is not necessary or proper

to read into the plain language of Congress a limitation

that will destroy this class of worker and change the ex-

pressed Congressional intent.

ARGUMENT.

OYSTER SHUCKERS AND SHRIMP PICKERS,

WHILE PERFORMING A PROCESS THAT EFFECTU-

ALLY CHANGES NATURAL EDIBLE AND LIVE

SHRIMP AND OYSTERS INTO A COMMODITY THAT

COULD BE CANNED, WERE NOT NECESSARILY

INVOLVED IN A PROCESS OF CANNING. THE

WHOLE QUESTION IN THIS CASE REVOLVES

AROUND THE MEANING OF THE WORDS USED

BY THE CONGRESS IN ITS 1949 AMENDMENT TO

THE FAIR LABOR STANDARDS ACT.

The Congress did not say in this Amendment that

the exemption was removed from all persons where the

seafood was canned, nor does the correct and exact mean-

ing and punctuation of the language used even suggest

this. On the contrary, if we give effect to the meaning

of the language used, the words “(other than canning)”

qualified “processing” only to the extent that “processing”

Was canning.

Now if canning were not a separate and distinct

process, recognized by people of the most ordinary intelli-

gence for the last one hundred years as something exact

in its nature and separate and apart from other processes,

then there would be more validity to the argument of the

petitioners that this qualification of “processing” de-

stroyed all exemptions of those persons engaged in proc-

essing of edible, aquatic matter if the goods were after-

ward canned.

In support of the petitioner’s position that reason

and logic and law lies in the opinion in Tobin v. Blue Chan-

nel Corp., 198 F. (2d) 245, rather than in the opinion ren-

dered by Judge Holmes in Donnelly v. Mavar Shrimp and

Oyster Co., 190 Fed. (2d) 409, the petitioner set up the

fact that the Mavar case was a declaratory judgment case.

Certainly it is to be presumed by the court that the Cir-

cuit Court of Appeals of the Fifth Circuit would give the

same consideration to a legal question presented in the

complaint seeking a declaratory judgment as it would in

any other type of litigated action. And therefore, the

statement by the petitioners that the Donnelly case was

a declaratory judgment action, is wholly beside the point.

Furthermore, regardless of what Judge Rives said in the

Donnelly case, the government was in fact a party to that

litigation, having obtained permission to file and having

filed a most exhaustive brief in opposition to the lower

court’s holding that shrimp pickers and oyster shuckers

were covered by the exemption, the subject of this litiga-

tion. Furthermore, in no wise was the decision in the

Donnelly case founded upon any agreement, but rather

upon the record and the very logical reasoning of the

court that in the very nature of things, a shrimp picker

or an oyster shucker was not a canner of seafoods. This

is utterly reasonable, because the record in this case and

common knowledge of this most interesting occupation,

shows that the very same people who prepare shrimp or

oyster meats, that are afterwards canned, use their skill

and labor for the preparation of the same articles when

—————————

there is no thought of their being canned. And further-

more, it appears by the evidence overwhelmingly both in

this case and in the Donnelly case, that there is no need

for the immediate canning of shrimp or oysters, that it

does not have to be what the petitioners call an integrated

process, but that the oyster and shrimp meat resulting

from the shuckers and shrimp pickers work, can be and

is often carried miles away before it is used in a cannery.

(R. 43).; (This Brief, Appendix 1).

We admit that in Tobin v. Blue Channel, that the

Fourth Circuit reached an opinion absolutely harmonious

with the reasoning of the Secretary of Laber, but we deny

that under the law it was compelled to follow this reason-

ing rather than the logical reasoning of a court of law, over

a matter which it had jurisdiction. Furthermore, there

was a difference in the type of person involved in the ex-

emption claimed in the Blue Channel case, for there is no

definite type of laborer known as a crab picker. Almost

any person, in any locality where crabs are canned, may

to a certain extent follow this occupation, and they do,

for this is a new occupation, using new labor, whereas

from the beginning of the shrimp and oyster industry in

America, evolving from a certain class of people having

special skills, came the subject matter of this lawsuit,

shrimp pickers and oyster shuckers.

In Anderson v. Manhattan Lighterage Corp., 148

Fed. (2d) 971, the barge captain performed at times

nearly every act that is required to be periormed by sea-

men, but the court said they were not Searien, even though

they worked upon a vessel and performed duties, ordi-

narily required, at times, of members of the crew of a

vessel, and in arriving at this conclusion among other

things, the court in holding that they were not seamen and

therefore come under the provision of the Fair Labor

Standards Act said “persuasive also is the further rea-

son behind this exemption, namely, the impracticability

of regulating the wages and hours of ordinary seamen in

the manner contemplated by the Act’. Here were people

engaged on a seaworthy vessel used to transport com-

merce to the far corners of the earth, who were held not

to be seamen and in deciding this fact, the court took the

position that seamen, in a way, had to be exempted from

the Act because of the impossibility of regulating the

wages and hours of the seamen.

In the present case, the people involved, young and

old, whole and handicapped, are shown to be separated

from ordinary persons employed in a cannery by the man-

ner of their work, the hours of their working, and the cus-

toms surrounding their work, all of which made impos-

sible any reasonable compliance with the Act, were they

to be brought under its protection.

A. NOTHING IN THE LANGUAGE OF THE

1949 AMENDMENT OR THE LEGISLATIVE RE-

PORTS IS REPUGNANT TO THE OPINION IN THE

DONNELLY CASE.

Certainly the historical facts alleged by the pe-

titioner on Page 12 of his brief are correct. However, the

inferences drawn from the fact are not correct, for a

reading of the original exemption and the exemption as

amended shows no thought on the part of the Congress of

any intention to exclude any of the workers mentioned in

their broad exemption, except workers engaged in can-

ning. Now as we have said before, the Blue Channel case

is in direct support of the petitioner’s argument, but it is

not in accord with what would appear to be the ex-

pressed intention of the Congress in writing the amend-

ment in Section 18(a) (5) into the list of exemptions

from the provisions of the Fair Labor Standards Act. We

feel here, that in as much as we are of the opinion that

not only reason influenced the Donnelly decision, but also

a sense of fair dealing and justice on the part of the

court, that we have a right to reason with the court as to

the meaning of the amendment mentioned above.

A close reading of Judge Holmes’ opinion and the

explanation of the amendment given by the Committee

in Congress will show that there is absolutely no conflict

between Judge Holmes’ conception of the extent of the

law and the intention of Congress as expressed in their

report on the law.

At the time Congress was considering the law, it is

a matter of common knowledge that vast quantities of

fish, in fact the largest amount of fish caught in America,

was processed, and a great portion of it was processed in

the same canneries or factories or fishing wharves or

whatever you may call them, where some part of the fish

was canned for consumption by people who were not in a

position to receive fresh or frozen fish.

Therefore, Congress had before it the knowledge

that fish were handled in two ways, in one way by re-

frigeration and in the other way by hermetically sealing

in cans, and when it provided that the word “canning” was

to include preparatory work it certainly had in mind the

preparatory work immediately preceding the actual can-

ning, which is done always in the case where goods are

canned.

We see from the record in the case at bar and

from the evidence of record in the Donnelly case, which

is attached to this brief as appendices, 1 through 5, in-

cluding the series of pictures attached thereto that four

or five operations in the canning room were done in prep-

aration for the actual canning.

In the case of shrimp, the shrimp were washed, in-

spected, blanched, sorted for size, placed on racks, dried,

afterwards weighed, brine was added to their content, then

the cans were sealed and later pasteurized.

All this was work done in preparation for canning

and was the same sort of work that is always performed

where goods are canned, and was in fact, according to the

definition given the word, actual canning. These em-

ployees are paid in accordance with the Act.

The work of the shrimp pickers and oyster shuck-

ers, while sometimes in assistance to the actual canning,

was not a part of the canning, which was something sep-

arate and apart from the canning, including as it did, the

use of artificial means to open the oysters, beheading and

shelling the shrimp, inspecting the shrimp and taking the

oyster from the shell, which process created not alone the

aquatic food that could be canned, but did not have to be

canned, but also other valuable by-products such as oyster

shells and shrimp hulls used for fertilizer, cement, etc.

——

We, therefore, say that the court found in the Donnelly

case that we were obeying the law in paying those persons

engaged in canning and in the “necessary preparatory op-

erations performed on the products before they are placed

in bottles, cans, or other containers.”

B. ANY REASONABLE CONSTRUCTION OF

THE WORD “PROCESSING” AS USED IN THE EX-

EMPTION, SHOWS THAT SUCH PROCESSING WAS

QUALIFIED ONLY BY THE ACTUAL ACT OF CAN-

NING AS ORDINARILY UNDERSTOOD.

We disagree with the position of the petitioner that

the court in the Donnelly case, while recognizing that

“canning” included “every other operation necessarily per-

formed on the products before they are placed in cans”,

would not give effect to its recognition of this fact.

In other words, the petitioner assumes that only

such logic and reason as possessed by the petitioners or

the courts agreeing with them is entitled to consideration.

That is not true. Varying persons have varying concep-

tions of the effects of the same Act on the same state of

facts and in the logic and reason used by the court in the

Donnelly case, it was not only buttressed by justice and

right, but also by every interpretation of the word “can-

ning” that can be found in our laws or in books defining

this word.

Canning certainly is an operation that was clearly

defined before the Fair Labor Standards Act was ever

thought of and for over one hundred years this definition

has stood, and all that the court in the Donnelly case held

was that this separate and distinct class of workers, that

is, shrimp pickers and oyster shuckers, were performing a

process that, while connected with, was not necessarily a

part of canning and often was done without any thought

of canning. (R. 39, Appendix 1, P. 28, P. 26). Cer-

tainly, the court was exercising only a rule of reason in

arriving at this conclusion from all the facts before it in

the Donnelly case, which is set out in the Appendices to

this brief.

In Maneja v. Waialua Agricultural Company, 349

U. S. 254, a case which is cited by the petitioner, the court

found that trainmen and machinists, because of the cir-

cumstances of their work, would be classed as agricultural

laborers. Now, certainly, the record in this case abund-

antly shows that shrimp pickers and oyster shuckers are

a separate and distinct type of labor, necessary in the

processing of seafood, but not absolutely necessary in can-

ning. They were not engaged in canning, their business

often had no connection with canning. In the Donnelly

case the Court did not narrowly construe the law, but con-

strued it intelligently so as to avoid the destruction of a

peculiar and particular type of labor, who by their own

efforts, and without the assistance of the Fair Labor

Standards Act, since the passage of this act, have increased

their pay nearly one thousand percent. See Appendix I,

page 44. As we will point out later in our argument, this

appeal is merely for the purpose of deciding whether the

Blue Channel case, supra, or the Donnelly case, supra, is

a reasonable statement of the law, and in its brief the

petitioners can see nothing but logic and reason in the

Blue Channel case. However, an examination of the au-

thorities will show that this opinion is not supported by

Ses

relevant law and other controlling facts, as is the opinion

in the Donnelly case.

C. THE DONNELLY CASE IN ITS CON-

STRUCTION OF THE PARENTHETICAL WORD

“CANNING” AS USED IN THE EXEMPTION DOES

NOTHING TO AFFECT THE REMEDIAL PURPOSES

OF THE FAIR LABOR STANDARDS ACT.

In Phillips v. Walling, and many other later de-

cisions, this court has virtually declared that the purpose

of the Fair Labor Standards Act was to give to able-

bodied men and women a reasonable pay for a fair day’s

work and the court has in its construction of particular

cases, varying from case to case, often said that the pur-

pose of the law and of the court’s construction, was to

remedy the particular evil which existed.

Now how has the construction of the word “can-

ning” by the Fifth Circuit affected the remedial coverage

of the Fair Labor Standards Act?

For the purpose of understanding this, we believe

that we have a right to consider the history of the Act and

its purpose to destroy certain mischief inherent in low paid

labor. It is apparent from the construction of the Fair

Labor Standards Act in Phillips Co. v. Walling, 65 S. Ct.

807, 808, 324 U. S. 490, 493, that the purpose of the Act,

was, and we quote “insuring to all able-bodied working

men and women a fair day’s pay for a fair day’s work”’,

Now the court’s construction of the word “canning” in the

Donnelly case in no wise affected this purpose. It ap-

pears from the record, that people working in the plants

who were actually engaged in the canning process, were

paid at least the minimum wage and that the only per-

sons not paid under the Act were those who were specifi-

cally excluded from the Act, including the shrimp pickers

and oyster shuckers who were engaged in a process “(other

than canning)”’,

Many of these shuckers and pickers are not able-

bodied people (R. 18, Appendix 1, Pp. 43-44) but on the

contrary are the unfortunates who stand on the fringe of

the present little economic upheaval, where the govern-

ment has found it necessary to protect the lower segments

of the labor force. They are not only not able-bodied,

but many of them can’t do a day’s work; in fact they

work sporadically according to their will and ability. (R.

15, R. 77). But in doing this they have not only made

a living for themselves, or assisted others in making a

living for themselves, but during the whole life of the

Fair Labor Standards Act have come into court only once,

to urge the coverage of that act, and that is when they

were brought into court in the Donnelly case. And in

the record of that case, Appendix 1, P. 44, it is clearly

shown that these people, whom the government affects to

be protecting, have actually raised their wages during

the life or period of the Fair Labor Standards Act nearly

one thousand percent, whereas, all the law could do dur-

ing the lifetime of the Fair Labor Standards Act was to

raise the pay of common labor two hundred fifty percent.

In other words, this is not a case where there is any

mischief to be corrected, nobody is being injured, or has

asked for any help from the Labor Department, but on the

contrary, because the Labor Department, the petitioner

here, wants to bring this separate class of workers into

conformity with all other persons actually engaged in can-

DAR ese

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ning, the petitioner has set about a deliberate course that

will not advance the interests of these people but on the

contrary, if successful, will replace them with machines.

(R. 77). Therefore, the argument of the petitioner that

the decision in the Donnelly case is wreng, rests on its

opinion that courts must follow the administrator’s idea

of the meaning and construction of an act. In other

words, the administrator Says that the meaning of the

words “(other than canning)” does not qualify “proc-

essing” when “processing” does not precede canning, and

when the processing is succeeded by canning it extends

the meaning of the word “canning” so that it would go

back even to the fishermen who remove the oysters from

the bottom of the sea, for sometimes this is done less than

an hour before these oysters are shucked in the shucking

shed of the packing plants, which also maintains a can-

nery.

The only reason why courts have held that exemp-

tions should be strictly or narrowly construed, is because

the basic law is thought good and only those persons should

come within the exemptions that would not be benefited

by the law or affected by the law. We do not think that

the court must always construe the law narrowly, when it

would mean an injustice, or would not work towards fur-

thering the purposes of the law it is construing.

In this case, the lower court said that canning is

canning, not processing, and refused to strike from the ex-

emption, which is one of the broadest exemptions in the

law, the word “processing”. For instance, if there was a

section of the law which exempted every class of worker in

the meat packing industry other than canning, would it be

reasonable to construe the law to the effect that a man in

killing a beef, skinning a beef or chemically making parts

of the beef into drugs, would be engaging in the occupa-

tion of canning merely because this processing was quali-

fied by the words “other than canning” and preceded the

canning of such meats, as arose from these processes? We

do not believe this could be true.

We call the court’s attention here, that the fish-

ing industry is not a canning industry. Sometimes it is

accompanied with canning, but it has ramifications which

extend far beyond the dreams even of Nicholas Appert, the

man who discovered canning. And therefore, by the logi-

cal use of a word, “canning”, processes which are as old

as this industry are not immediately turned into canning.

Certainly the court will not use this construction when

such a construction is not necessary, where there is no

mischief to be remedied, where the philosophical, economi-

cal and social purposes of the law in question were not re-

quired to protect these people and where such a construc-

tion will destroy. not aid or assist, the people. I hope that

we are not guilty of any violation of the court’s rules when

we say here that sometimes “The letter of the law killeth,

but its spirit giveth life.”

In the Donnelly case, supra, the court, with all of

the facts of this particular and interesting occupation be-

fore it, decided that it had a peculiar situation to adjudge,

that it was dealing with living human beings, who would

be affected by its judgment, that a construction of the

law based upon the administrator’s interpretation would

not assist in carrying ovt the spirit of the Fair Labor

Standards Act, but would only be in assistance of the

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conformity demanded by the administrator, and with all

this before it, it reasonably, intelligently, logically, and

justly construed the Act so “not as to remedy any mischief,

but rather to prevent a mischief,” which would be a serious

threat to the livelihood and existence of the group of

women, old men and old women, who could not secure work

elsewhere, R. 15, but who are making a living now in

carrying out the work of their fathers and were doing it

80 successfully that without any government protection, in

twenty years their pay had increased one thousand per-

cent.

Moreover, the present method of payment on a piece

rate basis is what all of the shuckers and pickers want.

Mrs. George Duvall, President of the Seafood Work-

ers Association Union, when testifying in the Donnelly

case said “And, may I Say this, that our worker’s don’t

want that. (To be covered under the Act). They want

to earn what they can earn. We have a good many old

workers in our plant, who have grown old in service, They

can go in these plants, and they are permitted to go and

come as they please. They can work three or four hours

and go home, and they thank God every night of their life

that they are permitted to earn that day. They are satis-

fied and don’t expect to make as much as fast workers.

Everybody is satisfied with what they can earn. ( Appen-

dix 1, p. 43).

Her testimony was fully substantiated by Mrs. Flor-

ence Powloski, Secretary-Treasurer of the same Union,

who testified that the union bargains with the packing

plant owners for their scale of wages and that “We would

like to work like we did in the past, which has been the

method of our grandmothers and grandfathers.” (Appen-

dix 1, p. 46).

D. THE WORD “PROCESSING”, AS USED IN

THIS EXEMPTION OF PERSONS ENGAGED IN THE

FISHING INDUSTRY, IS A GENERAL TERM, EM-

BRACING EVERY PROCESS WITH REFERENCE TO

EDIBLE SEAFOOD, EXCEPT THE PROCESS OF

CANNING.

Prior to October 26, 1949, the words “(other than

canning)” used parenthetically to modify or limit the

word “processing” were not in the act.

It is the position of the respondents, substantiated

by the overwhelming evidence introduced and found to be

fact by the court, that the canning of oysters in the sea-

food industry is but one of the processes necessary to pre-

pare seafood for market; that shrimp taken from the sea

are transformed to merchantable and salable goods, when,

and only when, they have been subjected to several proc-

esses, the first and most important of which is picking.

After this they may be sold and merchandised in the

numerous forms set out in the opinion of Judge Holmes

in Donnelly, et al., v. Mavar Shrimp and Oyster Company,

Ltd., et al., 190 F. (2d) 409, one of which is by canning.

The use of these shrimp in the canning process does not by

some magic change the nature of the previous picking

process and convert it too, into the canning process.

It would appear from the facts in the Donnelly case,

which were similar to the facts in this case, that every bit

of the work of the laborers used in picking shrimp and

3 Se

Oe Me ATL ATE BA OA

shucking oysters could be done, and often times is done,

wholly without reference to canning; that this process is

only one of the processes used in changing the seafood

from a raw state to a finished product; and that it is

always accompanied by the production of two separate

and distinct commodities, on one hand, oyster meat and

shrimp meat that could be used for canning or for other

purposes, and on the other, oyster shells and shrimp hulls,

both of which are very valuable as fertilizer and used

for many other purposes. After this process is completed

some of the shrimp and oysters are canned at other pack-

ing plants. In any event, there is a final product when

the pickers and shuckers are finished with their work.

In the case of oysters, it is not only a separate and

distinct process, but the evidence shows without question

that the plant does not come into possession or ownership

of the oyster until the process of opening has been com-

pleted. After these workers have finished and completed

their work in opening these oysters, the oysters are sub-

jected to inspection by the union, and if the price is un-

satisfactory to the fishermen, they can then be sold to an-

other factory. (R. 44; Appendix 1, pp. 24 and 40).

And we think the evidence in both the Donnelly

case, and in the case at Bar, shows it is feasible to trans-

port this meat and can it at another factory, and, there-

fore, when the work of these laborers is completed, it can

be sold elsewhere, and is, at times, the subject of sale

and barter between the factories, before being canned or

otherwise used.

If anything, the whole record of the case at Bar,

and the record on which the opinion of Judge Holmes in

the Donnelly case was based, shows that the process of

shucking oysters and hulling shrimp is a distinct and

needed one in order to change the uncleaned and unopened

shrimp and oysters into a raw product that afterwards,

through different processes, can be canned, quick frozen,

or sold cooked and peeled. (R. 22; Appendix 1, p. 25).

We bring to the Court’s attention that processing,

as used in the Statute is an inclusive word, which em-

braces all the acts necessary to transfer raw seafood into

a commercial product, not limited to any one act or proc-

ess. It consists of the many processes necessary to create

edible seafood. Sec. 13(a) (5) excludes one of these

processes, that is, canning, from the exemption; canning

by general definition is one process.

The word “canning” has, heretofore, been construed

by a number of the Circuit Courts of Appeal, including the

second and the fifth. We here submit to the court that the

opinion of Judge Holmes in the Donnelly case is eminently

correct, and the lower court, in the case at Bar, was en-

tirely justified in following this as a precedent, because, not

only is this type of labor almost separate and apart from

all other types of labor, but it is engaged wholly in a sep-

arate, separable, and distinct process.

Respondents have recognized coverage of the act

for all employees engaged in canning as defined by the

Donnelly case and the dictionaries and has paid its said

employees accordingly.

-? 4

;

We take the liberty of citing the definition of can-

ning from recognized works on the meaning of words in

common use in this country:

Webster’s New International Dictionary, Second

Edition, Unabridged, p. 387, Can. v.t.; Canned;

canning. 1. To put in a can or cans; to preserve by

putting in sealed cans or jars.

Funk and Wagnalls New Standard Dictionary.

Canning—The act, process, or business of preserv-

ing, fruits, vegetables, or meats, by partial cook-

ing, or other process, and hermetically sealing in

tin cans, glass jars,” etc,

In older editions of Webster’s Dictionary, the verb

“can” is defined as signifying: “To preserve by

putting in sealed cans. Canned goods, a general

name for fruit, vegetables, meat, or fish, preserved

in hermetically sealed cans.”

Process is defined in Webster’s New International

Dictionary, Second Edition, Unabridged, p. 1972, as:

“To subject to some special process or treatment.

Specif.: a. To heat, as fruit with steam under pres-

Sure, so as to cook or sterilize. b, To subject (esp.

raw material) to a process of manufacture, develop-

ment, preparation for the market, etc.; to convert

into marketable form, as livestock by slaughtering,

grain by milling, cotton by spinning, milk by pas-

teurizing, fruits and vegetables by sorting and re-

packing ;—in past part. often distinguished from

raw. * # #»

In this and other definitions of “processing” we

find nothing that is discordant between the two definitions

because while processing is a general term, it is also used

as applying to some special act.

For instance, in any place in the South, it would

be perfectly feasible to operate a cotton gin in connection

with an oil reduction plant, but certainly, there would be

nothing in common between the process of taking lint

from the cotton seed and afterwards, even though it can

be done by a direct run from the cotton gin, of pressing the

oil from these seeds, thereby turning the seed into oil, and

different forms of fertilizer or food. Yet, we cannot

imagine that a law which would exempt every act in the

procedure and processing of cotton “other than ginning”

that would mean everyone engaged in working in the oil

reduction process, would be considered as engaged in gin-

ning, simply because one of the processes of the produc-

tion of a raw material from the field consisted of removing

the lint from the seed. By the same reasoning the work-

ers, the subject of this lawsuit, engaged in the picking

and opening of shrimp and oysters where the meats of

which may afterwards be sent to a separate room or es-

tablishment, where every act that is envisioned in the

definition of canning takes place, that is, the shrimp and

oysters are cleaned, graded, seasoned, inspected, put in

cans, cooked and labeled, are not engaged in canning so as

to exclude them from the exemption of Sec. 13(a) (5) of the

Fair Labor Standards Act.

We are familiar with the fact that it is the duty

of the courts to give consideration to the regulations of

the Administrator of the Fair Labor Standards Act and to

the Congressional Committee Reports. We are further

familiar with the necessity on our part of establishing to

the satisfaction of the court that the Congress intended

definitely to include the exemption of any general class

of workers, but when Congress by the use of words hav-

ing a common acceptation and meaning creates an exemp-

tion general to a whole industry as broad and as far reach-

ing as the exemption being litigated before the court, it be-

comes the duty of the court to give a reasonable construc-

tion to these words used by the Congress,

The reason why this exemption granted under

Section 13(a) (5) of the Act is so broad and comprehen-

sive is that there is a vita] difference in working condi-

tions between persons engaged in the seafood industry and

persons otherwise engaged in industry in our country.

For, except in great factories where canning is almost

an automatic process from beginning to end, it is impos-

sible to tie down people engaged in the fishing industry to

any regular hours of work, and this is a basic reason why

the exemption was allowed.

In the case of Anderson v. Manhattan Lighteraye

Corp., 148 Fed. (2d) 971, the Court struck down the ex-

emption demanded or requested, by persons who were

commonly called captains of the lighters. The court how-

ever, did make the following pronouncement: “Persuasive

also is the further reason behind this exemption, namely,

the impracticability of regulating the wages and hours of

ordinary seamen in the manner contemplated by the

am...”

It is one of our contentions in the case at Bar that

it would be wholly impossible to regulate the hours of

work and the wages of the laborers who are really the

subject of this lawsuit.

In order to understand this, the court must look

into the background of these people, as well as the history

of the shrimp and oyster industry.

This is not a great industry. We doubt if the en-

tire income in the United States resulting from all types

of the shrimp and oyster industry, exclusive of the oysters

in Long Island Sound and in New Jersey, would be worth |

over $30,000,000.00 a year.

Beginning in about 1870, after the oyster beds of

Maryland and Virginia were exhausted, there sprung up

in the bays, bayous and marsh lands of Mississippi and

Louisiana, an industry centered around the canning of

oysters.

Certainly, many years before this time oysters were

canned in Maryland and Virginia under the name of cove

oysters, and about this time a man in Louisiana, named

Dunbar, found it possible to can shrimp and these two

fish products were developed and came into existence to-

gether. The laborers necessary in the whole operation

from catching the shrimp and oysters to completing the

work of their preservation, came from a sturdy clan of

French, Spanish‘and English fishermen who earned their

living from this work.

The younger men found their vocation in fishing

for the shrimp and oysters, in carrying out the arduous

—

labor of operating the vessels, tonging for oysters, follow-

ing the shrimp schools and bringing their catch into port,

sometimes an hour’s distance, sometimes two or three

day’s distance.

And after it was unloaded at the dockside, the

second of three types of necessary labor took over and we

find that while the older sons of the fishermen assisted in

operating the vessels, their Wives, mothers, their elderly

fathers, and other old relatives commenced the work of

preparing the catch for commerce and use.

This work is in a way skillful, just like it takes

skill of a kind to hoe cotton or to cut down a tree, but it

requires very little education and very little strength and

it can be perfectly easy for persons who from their in-

fancy had a knowledge of these products of the sea.

After the oysters were cleaned and inspected, these

people continued the process by steaming them to force

them open and then from the open oyster shell, the meat

was taken. The heads and hulls of shrimp were removed,

and later the shrimp meats taken into a room where it

Was required that the workers have some knowledge of the

preservation of food and where it is necessary to turn out

a safe, edible product.

In the canning room the oysters and shrimp have to

be inspected for dirt, or any foreign matter, which must

be removed from the meat. The shrimp meats are cooked

in a brine solution; an exact amount of oyster and shrimp

placed in cans and the proper amount of brine having the

exact amount of salt has to be added to the cans, the cans

have to be weighed and properly hermetically sealed, and

when this is done, the meat in the cans has to be further

expertly sterilized by steam pressure. After this the

cans are cooled, cleaned, labeled, packed in boxes and stored

for shipping.

This second process, that of canning, requires care-

ful, skilled attention. It is different in that the first

process did not require a technically skilled type of worker.

Therefore, over a long period of years the older men, the

older women, the housewife, and the elder children who

were supplementing the family income, became a separate

and distinct type of worker, one engaged in the processing

of shrimp and oysters, but not engaged in canning.

It would, therefore, appear that considering the

whole of the fishing industry in America, that the persons

engaged in picking shrimp and shucking oysters consti-

tuted a separate, distinct class. In fact, they are so sui

generis, you find no one like them in America, or as far

as the writer of this brief is concerned, any where else in

the world.

They constitute a class that came up because of the

need of this local industry and because of their natural

love of freedom and willingness to labor that is found

among fishing classes of all countries. The evidence in the

case at Bar Shows that these people do not work for par-

ticular processing plants but move from one processing

plant to another and are free to come and go as they please.

Some work two, four or eight hours. Housewives work

early in the morning, go about their home duties or social

obligations, and come back to work. Old men labor for the

number of hours that their meager strength will allow, and

the young people, where the law permits, work before and

after school hours. (R. 77, Appendix 1, p. 43).

Now, certainly, all of these conditions :an change.

Shrimp can now be hulled or picked by machinery and it is

foreseeable that the same work can be done by machinery

in the oyster industry. (R. 77). A class of persons who

cannot conform, and would not conform to the Wage and

Hour Law would be destroyed; that is, the livelihood of

these old, aged, maimed people who now subsidize their

grants by the government to the extent that they at least

have a decent living and not the meager one that comes

from social security or an old age pension, will be lost.

We are aware of the fact that the federal govern-

ment, under the commerce clause of the Constitution, can

direct by industrial legislation the activities of people en-

gaged in interstate commerce, and marshall virtually the

whole of ihe working class of Americans as some other

countries, under a differeiit form of government, do

by decrees. It is the duty of the courts to so interpret laws

as to aid and assist the Congress in carrying out the pur-

pose and intent of those laws, especially when the Congress

by the use of common, ordinary understandable English

has provided some relief for a named class of persons.

However, it is the duty of the courts to look into all of the

facts and the effect of the enforcement of the law, to give

effect to any helpful provisions in a law releasing certain

classes from its coverage and not to ignore the basic

philosophic reason for an exemption, and not to follow

the whims and desires of a department to compel a man

who works in an exempted class to conform to the regu-

lations governing a non-exempted class.

It has been the plainly expressed purpose of the

Labor Department ever since the Fair Labor Standards

Act was enacted, to so interpret the exemptions, as to

bring under the coverage of the law, every possible per-

son, whether exempted or not exempted. For instance,

in the case at Bar, the government is claiming that be-

cause the results of the efforts of the seafood workers

engaged in opening oysters and hulling shrimp was to

produce a product that, by long and intricate processing,

became canned food, that thereby this separate, distinct

type of worker, having characteristics of no other type

of worker in the fishing business or otherwise in the whole

of the United States, and having customs and manner of

labor not found elsewhere in other businesses, being as

they are free to work any number of hours, at any time, on

any day, for any processor in the community, having ab-

solute allegiance to no one, but the right to labor for all

as it suits their convenience, became a canner of food,

and yet, at the same time, time after time, we see the

same department taking a different stand. For instance,

in the case of McComb v. Consolidated Fisheries, 174 F.

(2d) 74 and Waller v. Humphrys, 133 Fed. (2d) 193 (C.

A., 5), the Labor Department was strongly urging that a

watchman, although engaged in some of the work of

processing food and persons performing necessary duties

for .ther processes of food were not engaged in processing.

Now, in this case, they want to say that everyone who

works under the roof of a processing plant, where canning

is sometimes carried on, is engaged in canning, although

there is no more resemblance between an oyster shucker

er sage

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or a shrimp picker, and the people engaged in the actual

canning of these products, than there is between a long-

shoreman working on a dock and a clean, intelligent office

manager who daily computes the extent of their efforts.

And furthermore, we notice this inclination much

more strongly in the case of Davis v. Goodman Lumber

Company, 135 F. (2d) 52, where the business with a total

gross of about $350,000.00 a year was engaged almost

totally in the local retailing of lumber and its products.

However, in doing this, in order to meet some of the needs

of its customers, it made certain parts used in manufactur-

ing establishments and only a small amount of these parts

were shipped in interstate commerce, yet the Labor De-

partment contended, as to the workers and the foreman

who made these parts, although made in the same build-

ing with the use of some of the same material, operated

by the same firm, was a distinct class of worker engaged

in work other than service establishment or a local busi-

ness selling in intrastate commerce. In other words, the

government, in that case contended that two or three men

out of hundreds could be lifted from the local exempted

employment and brought within the fold of persons coming

under the provisions of the Fair Labor Standards Act.

Furthermore, in the recent case of Tobin v. Blue

Channel Corp., 198 F. (2d) 245, the government made the

same contention and attempted in the above case to en-

large the construction of the meaning of the word “can-

ning” so as to bring a person engaged in other activities

leading to canning, within the protection of the Act. We

therefore say to the court that there is no consistency in

the attitude of the Department of Labor. The Adminis-

Coe pa ah fee SS ae

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20 ep ARR. Re: Ree 2 : ’ a

trator of the Fair Labor Act does not make the law; he

administrates the law. Congress makes it and the courts

construe it. While in their constructions the courts will

give some consideration to the Administrator’s construc-

tion of the law, yet it is still bound by the plain obvious

meaning of the words used in the law, which gave vitality

to the exemption as well as life to the Act.

In Addison v. Holly Hill Trust Products, 332 U. 8.

607, 617, 64 S. Ct. 1215, 1221, this honorable court in con-

struing a similar exemption under Sec. 13(a) (5) of the

Fair Labor Standards Act said: “We should, of course,

be faithful to the meaning of a statute, but after all Con-

gress expresses it’s meaning by words... .” “The natu-

ral meaning of words cannot be displaced by reference to

difficulties in administration.”

It is not the duty of the administrator of this law

to disagree with the Congress in his construction, or to

attempt to broaden the base of the law so as to become a

greater watchman over the working man that he was

created by the Act. Yet it is obvious from the whole his-

tory of litigation involved in the Fair Labor Standards

Act that this is the express purpose of the Labor Depart-

ment. Certainly, provided we do it in a gentlemanly

manner, we have a right in our argument to criticize the

activities of the gentlemen who are enforcing this law.

We have a right, not only to protect ourselves in our

economy so as to prevent our businesses from being de-

stroyed, but also in doing this to consider that which is

best for the weak, halt, maimed and blind, who can find

in their work the last remaining hope for their useful,

worldly existence. These employees can work according

to their custom, free and untrammeled, in the manner of

their forefathers, and can combat the economic dangers

of this life in their old age with the same stubborn cour-

age that marked their adventure into the hardships and

dangers of fishing in their youth. They are human beings,

and this litigation is directed against them, not against

the respondent, because it may be possible for the economy

of the shrimp and oyster business in the South to stand

being changed into a wholly automatic or machine opera-

tion, but under no applicable rule of wage, hours or man-

ner of work, can these poor people qualify under the regu-

lations of the Administrator of the Fair Labor Standards

Act.

All the way throush this litigation in its briefs and

in its arguments before the court, the petitioner has been

urging that the courts adopt the rule announced in Phillips

Co. v. Walling, 324 U. S. 490, and “narrowly” construe

the exemptions granted. The Labor Department’s con-

struction of this word “narrow” would be synonymous

with crush or destroy the exemption granted. They would

have the exclusion “(other than canning)” grow to such

proportions that it would gobble up the exception “proc-

essing” it purportedly limited. In other words, the con-

struction of the decision cited above, and certainly the

court meant no such construction, was that the court should

be used to destroy a right, privilege or license granted by

the Congress. Certainly, the word “narrowly” construed

does not mean that it becomes so narrow that the exemp-

tion is destroyed. For a river a mile wide can be narrow

in comparison with a Gulf or Bay, and a Gulf or Bay

can be narrow in comparison with an ocean, or a road of

1920 can be narrow when compared with the same road

made in 1950.

Now, all the court meant, as we believe, was that

the court would not broaden the scope of the right given

where created by Congressional exemption. It did not

mean that it would not give full effect to the plain meaning

of the English words used by the Congress in writing

the law. In order to uphold its argument for narrow con-

struction, the appellant quotes the following part of the

Conference Report. We quote: “Canning” includes “nec-

essary preparatory operations performed on the products

before they are placed in bottles, cans, or other con-

tainers”’.

The language used in this part of the report is al-

most identically the language used by Judge Holmes in

the Donnelly case, and his logical reasoning that this did

not include the separate process or operation of reducing

the raw products of the sea to separate parts, one of which

could be used for the purpose of canning, is irrefutable.

For instance, and we quote this case, “Canning includes

* * * every other operation performed necessarily on the

products before they are placed in bottles, cans or other

containers.” Now does not the record show that these pre-

paratory operations for canning are washing, grading,

cooking, inspecting, weighing, seasoning and so forth, be-

fore they are placed in bottles, cans or other containers?

Certainly it does. And these operations are entirely sep-

arate and distinct from the operation of the initial process

of steaming and shucking the oysters and peeling the

shrimp. Everybody on the ship is engaged in a com-

mon purpose, that is carrying the vessel and its cargo

or passengers safely from one port to another port, yet

if you were to construe the individual efforts of the work-

ers of the vessel, you would find nothing in common be-

tween the labor of the man who worked as a stoker and the

labor of a man who cooked the food that fed and nourished

the others engaged in this nautical operation.

For instance, in Anderson v. Manhattan Lighterage,

148 Fed. (2d) 971, Judge Clark had under consideration

the claim that captains of non-self-propelled barges were

seamen. It would appear from the evidence that the men

worked on the barges, they stored cargo on the barges,

they trimmed this cargo, they regulated the amount of

cargo, and they made trips from place to place on the

barges, BUT THEY DID NOT PERFORM THE ORDI-

NARY DUTIES OF SEAMEN, and even though they

were traveling on the sea at times in charge of a vessel

that used the waters of the seas and bays, this did not

turn them into seamen. Certainly in that case, the Labor

Department was urging that the men were not seamen,

even though they performed many, many more duties in

the nature of the duties of a man of the sea than the oyster

shuckers and shrimp pickers performed in the nature of the

duties of a canner of food. And in the very nature of the

work of these people, they are not engaged at any time

exclusively in the canning of food. Their work was pre-

paratory to the use of the raw product in many other

forms, such as freezing, cooking or canning and their en-

gaging in this preparatory work, which has set them apart

as a class for over seventy-five years, separate and dis-

tinct from people engaged in canning operations, does not

change the nature of their employment and make them

engaged in a process of canning.

When the law was considered by the Congress and

passed, it was understood that shrimp and oysters and

other seafoods are subject to varying and many processes

and this exemption was qualified only by the words “other

than canning”. In other words, every separate and dis-

tinct process which subjected aquatic life to being turned

into useful food was exempted (other than canning). Now,

what does it mean by “other than canning”? It means

that separate and distinct process of canning, which has

a historic meaning and simple meaning as shown by all the

books devoted to the construction of words and as commer-

cially considered by persons engaged in the food industry.

E. SIMILARITY OR NECESSITY OF WORK

IN A FIELD OF PRODUCTION OR ACTIVITY DOES

NOT REQUIRE A CONCLUSION OF IDENTITY.

In Farmers’ Reservoir and Irrigation Co. v. Mc-

Comb, 337 U. S. 755, 759, 69 S. Ct. 1274, 1277, where this

honorable Court was discussing the agricultural exemption

claimed by an irrigation company in Colorado, and cer-

tainly in that dry country irrigation projects are the

backbone of agriculture which could not exist without that

type of water supply, it was decided that the company’s

function was necessary to agricultural production, but

still was not identical with it and was not agriculture.

Here, shucking, hulling or picking are necessary to can-

ning, but are not identical with it. Such activity is truly

a process of its own just as canning is a process. In this

case, the fact that each is a process does not create an

equality or an identity. Each has a separate identity and

a separate function.

It would also appear that in a number of cases of

which Walling v. W. D. Haden Company, 153 Fed. (2d)

19538, (Fifth Circuit) a number of the Circuit Courts of

Appeal, as well as other appellate courts, have decided that

irrespective of the fact that men labor on vessels resting

upon the surface of the sea, kept watch, held various duties

on these vessels, that if these duties did not conform to the

generally known duties of seamen, they would not be

considered seamen under the provisions of the Fair Labor

Standards Act.

In other words, the Act shows that one would not be

judged by any work he engages in, but on the contrary,

would be judged by the type of work he engages in, and in

arriving at this decision, of necessity, the Courts had rea-

son to examine the dictionaries and other books of reference

to construe the meaning of the word “seamen”, and then

to this word they gave an utterly strict construction in

order to carry out, as each court expressed itself, “the

will of Congress”, which was to the effect “the Fair Labor

Standards Act was designed to extend the frontiers of

social progress by assuring to all able-bodied men and

women, a fair day’s pay for a fair day’s work”. Phillips

Co. v. Walling, 324 U. S. 490, 493, 65 Ct. Repts. 807, 808.

In the Haden case, supra, the court reasoned as

follows: “the words of the exemption are ‘employees em-

ployed as seamen’. The italicized words mean something.

They are not mere tautology.”

Now we are of the very reasonable opinion that

Congress acted within its constitutional power in grant-

ing the broad exemption which exempted our employees

from the purpose of the Act, and their association with

other work did not determine whether or not persons en-

gaged in a particular occupation were exempted, but the

determining factor would be the particular nature of the

work itself.

This was illustrated most strongly in the case of

10 East 40th Street Bldg., Inc., v. Callus, et al., 325

U. S. 578, 65 S. Ct. 1227, 1229, in which all of the em-

ployees of a building housing concerns actively engaged in

Interstate Commerce to about forty-five percent of its ca-

pacity, requested that they be included among the persons

protected by the provision of the Fair Labor Standards

Act. This right was denied them and in the opinion of

Mr. Justice Frankfurter, we find the following: “The

series of cases in which we have had to decide when em-

ployees are engaged in an occupation necessary to the

production of goods for commerce has settled at least some

matters. Merely because an occupation involves a fune-

tion not indispensable to the production of goods, in the

sense that it can be done without, does not exclude it from

the scope of the Fair Labor Standards Act. Conversely,

merely because an occupation is indispensable, in the

sense of being included in the long chain of causation

which brings about so complicated a result as finished

goods, does not bring it within the scope of the Fair Labor

Standards Act.”

Therefore, we come again to the consideration of

the words “processing (other than canning)”. In doing

this we have to agree with Judge Holmes in the Donnelly

case, supra, for the reason that the logical expression in his

opinion is founded upon not only the meaning of the words,

but on a rule of common sense, for as J udge Holmes says,

“if picking shrimp and shucking oysters are not exempted,

what are the processes other than canning that were in the

legislative mind? Catching, cultivating, curing, storing,

freezing and marketing, are without qualification specifi-

cally exempted from the wages and hours law. What,

then, we repeat, are the processes (other than canning)

that the amendment intended to exclude from the exemp-

tions if the actual canning retroactively embraced every-

thing previously done to the product except catching, cur-

ing, storing, freezing, and marketing?”

In other words, to our simple minds, Congress in-

tended in the plain language that was in the first stat-

ute, as well as the amended statute, to exempt processing

of aquatic foods.

Now what is this process that is to be exempted

if the only process preceding canning, is to be included in

canning?

Certainly, this would destroy the intention of a

Congressional exemption and while we are willing to ad-

mit that the courts have gone very far in construing this

act to include every laborer that could be effected thereby,

yet this liberality will not include the oyster and shrimp

pickers in this case who are not engaged in canning. It

will take a rewriting of the law which under the provisions

of the Constitution, rests solely upon the Congress.

Furthermore, in the opinion of Donnelly, et al., v.

Mavar Shrimp and Oyster Company, et al., above referred

to, Judge Holmes included in his opinion the following:

“A corn shucker is not a miller, and a shrimp

picker is not engaged in canning shrimp any more

than a corn shucker is engaged in canning corn.

The least that can be said is that the processes are

separable; and that the Act so contemplated is in-

dicated by retaining the exemption as to processes

other than canning.”

It would be a far-fetched theory for one to ad-

vocate that a person who does the shucking of an ear

of corn, even if done in the same building where after-

wards the corn is canned, is engaged in canning if all

the other processes with reference to corn were ex-

empted, and certainly it would appear that it was the in-

tent of Congress that all of the processes other than

canning were to be exempted. This is clearly shown by

the fact that Congress met four times since the Donnelly

case was decided without amending this part of the Fair

Labor Standards Act although each time it had the oppor-

tunity to amend the Act if it so desired. Congressional

committees are always investigating the coverage of this

far-reaching Act because it is the subject of political con-

troversy at all times.

Now as to the liberal construction to be given by

the Courts to the Fair Labor Standards Act, we must say

that many times these statements have been lifted out of

text so as not to express the real purpose and meaning of

the Court in using this expression, but on the contrary, to

attempt to bring into existence a fixed rule of law, like the

law of the Medes and Persians that couldn’t be changed, as

if to admonish the court to exclude from any exemption

emer’

—

and to place under the coverage of the law, any laborer en-

gaged in Interstate Commerce.

Most assuredly this is not true for it is the duty

of the court to give expression, if possible, to every part

of an Act of Congress and to give to each word used in

such enactment the ordinary, usual meaning of this word

as construed by those persons having knowledge of the

meaning of the English language.

We again quote from the opinion of Judge Holmes

in the Donnelly case:

“The position and punctuation of clause (5)

in paragraph (a) of Sec. 218, Title 29, indicate

that the parenthetical words (other than canning)

modify only the preceding word ‘processing’ and

not the words ‘marketing, freezing, curing, stor-

ing, or distributing.’ Curing means to prepare for

preservation or permanent keeping; to preserve as

to cure beef or fish. See Webster’s Dictionary. We

must give full effect to all the words used by the

Congress; to do this means that preparing shrimp

or oysters for preservation or permanent keeping

is exempted from the provisions of both Sections

206 and 207 of Title 29. These appellants are not

engaged in canning; they do not work in the can-

ning room; their work is frequently done without

any intention on the part of their employer to can

the articles that are being processed; they are en-

gaged in a process involving shrimp and oysters

that is distinct from, not necessarily related to,

canning. Cochrane v. Deener, 94 U. §. 780-788,

24 L. Ed. 139; Waldman v. Swanfeldt, 9 Cir., 66

F. (2d) 294, 295; Henry v. Markesan State Bank,

8 Cir., 68 F. (2d) 554, 557; Waller v. Humphrys,

et ux., 5 Cir., 174 F. (2d) 74; Cincinnati Soap Com-

pany v. United States, D. C., 22 F. Supp. 141, 143;

State v. Pacific American Fisheries, 73 Wash. 37,

P. 452-54.”

Certainly, this court in the 10 East 40th Street

Bldg., v. Callus, et al., quoted above, has held that the

court is not bound to any hard and fast rule in determin-

ing by exact measurement the class of people who come

within the meaning of the Fair Labor Standards Act.

Iu Kirschbaum v. Walling, 316 U. S. 523, and in

Borden Co. v. Borello, 325 U. S. 679, involving persons en-

gaged in the operation of a building used in Interstate

Commerce, this Court held the exact opposite of its find-

ings in the 10 East 40th Street Bidg., case, supra. The

reason for these findings were that the facts were dif-

ferent in these various cases, and therefore the court con-

strued the law in the light of the facts before it and would

not narrowly construe the meaning of a well known word.

It stands without contradiction, that the Congress

intended to exempt every single employee in the seafood

industry up to and including the time when goods were

ready for shipment except persons engaged in canning.

These persons who pick shrimp and shuck oysters are en-

gaged in processing, (other than canning), even though

this process may precede the process of canning. This

process of picking and shucking is separate, distinct and

insofar as the law is concerned, not related to any other

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process. Certainly the employees of the respondents, who

are the subject matter of this lawsuit, are not engaged in

canning, but engaged in an occupation that is one of its

kind in the United States, and which they carry on abso-

lutely without reference to canning. They open oysters

and pick shrimp for a multitude of purposes, working in

the same building under the same rules, carrying on the

same customs, working one day for one man and another

day for another man, and yet Plaintiff contends that sud-

denly, if this work precedes the canning of the goods, be-

cause of its proximity to the process of canning, it takes

on the nature of canning. We cannot so conclude.

CONCLUSION.

We, therefore, respectfully submit to the court that

the opinion of the eminent J udge of the court below and

the judgment in the Donnelly case, and the judgment of

the Fifth Circuit in the case at Bar, should be affirmed.

Respectfully submitted,

W. L. GUICE,

Attorney for Myrtle Grove Packing Com-

pany, Respondent.

CHALIN O. PEREZ,

JACOB D. GUICE,

Of Counsel.

APPENDIX 1

Testimony in Donnelly v. Mavar Shrimp & Oyster

Co., 190 Federal (2d) 409.

(21)

Mr. Nick Mavar, a witness called on behalf of the

Plaintiff, after having been first duly sworn, testified as

follows:

Direct Examination

By Mr. W. L. Guice, Counsel for Plaintiffs:

Q. Your name is Nick Mavar?

A. Yes, Sir.

Q. How old are you, Mr. Mavar?

(22)

I am 36.

You are a native of Biloxi, Mississippi?

Yes, Sir.

Q. You are employed by the plaintiff, Mavar

Shrimp and Oyster Company, Inc.?

A. Yes, Sir.

Q. How long have you been with them?

A. Fifteen years.

Fifteen years. I think you attended the Uni-

versity of Mississippi, intending to be a law-

yer, is that right?

A. Well, briefly, yes.

Q. Then you decided to go into this business with

your people?

A. Yes.

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&©Prp OP OP OP

Now, prior to the time you entered into the

actual work in the shrimp and oyster business,

were you because of the occupation of your

father and mother, familiar with, acquainted

with the shrimp and oyster business in Biloxi?

Yes.

Were you acquainted with the original plant

here, the one called Dunbar-Dukate Company?

Yes, Sir.

And acquainted, likewise, to the operation of

the Biloxi Canning and Packing Company?

Yes, Sir.

Julian and other operating parties in Louisi-

ana and Mississippi?

Yes, Sir.

Now, before the Court today, Mr. Mavar, is

whether or not the shucking of oysters, that is,

the operation beginning at the pier and ending

at the pay-off window, if that is a necessary

part of the canning of oysters. Do you know

anything about that—I mean, are you ac-

quainted with that?

Yes, sir, that is a part of the canning.

Are you acquainted with it?

Oh, yes, sir.

Are you acquainted with these two operations

as carried on by the Mavar Shrimp and Oyster

Company and Williams Packing and Naviga-

tion Company at Biloxi?

Yes.

————— —_ . —— " — _

Q. Now, is the operation as conducted by these

two factories practically the same now as the

operation conducted by the ordinarily average

shrimp and oyster processing and canning

plant in Louisiana and Mississippi?

A. Yes, sir, that’s right.

Q. Now I will ask you if, from your knowledge

of this business, gained over your fifteen years

experience in it, is the essential processes

shown in File No. 1 here entitled pictures 1 to

9, showing the process of steaming and remov-

ing the oyster meat from the shell, is that op-

eration separate and distinct from the packing

of oyster meat in cans?

Defendants objected for the reason the question

called for a conclusion of the witness.

Objection overruled.

A. Yes.

Q. State whether or not in carrying on the busi-

ness of canning plants if it is perfectly feasible

and workable to process this oyster meat, we

will say at Lakeshore, Louisiana, and canning

it at Biloxi?

A. Sure.

Q. Has that been done?

A. Yes.

(24)

Q. It is done by the original and largest oyster

factory, Dunbar-Dukate?

A. Yes.

Q. State whether or not in the past, or under ad-

verse and other circumstances which made it

most feasible, if Mr. Taultavaul, who was

with the Biloxi Canning Factory, opened oys-

ters in Louisiana and canned them in Biloxi?

A. Yes, sir.

Q. Mr. Mavar, when the boat, which catches these

oysters on the reefs of Mississippi or Louisi-

ana, ties up at the wharf of your plant or the

Williams Packing and Navigation Company

plant, to whom do the oysters in the hold of

that boat belong?

The fishermen.

The fishermen who caught them?

Yes.

Then, by the process shown in File No. 1, they

are carried up on the pier, washed, placed in

cars, steamed and cooked, opened by the La-

borers who are defendants in this case, and

then brought to a window to be weighed so

that the laborers, who are defendants in this

case, and persons similarly employed, may se-

cure their pay. When they are brought to

that window, who do they belong to?

A. The fishermen.

Q. In other words, the title to those oysters—

Defendants objected to counsel leading the wit-

ness,

Well, I will ask you this: State whether or

not, if the title of those oysters ever passes to

the canning company until they are sold at that

window?

That’s where we buy them.

Now, when you buy them there, state whether

or not it would be perfectly feasible, with an

average cooling temperature, to carry them

anywhere along the gulf coast you desire to

can them?

Sure.

Is it a fact that in many instances in the past

that one canner of oysters, in his canning plant,

would can oysters for another person in the

oyster business, that were processed originally

in his shucking shed?

That has been done.

Now we get to the question of shrimp. Most of

the factories here handle both shrimp and

oysters?

Yes.

The laborers who are named defendants in the

proceedings before the Court are engaged both

in the shucking of oysters and-in the cleaning

of shrimp?

Yes.

Now, will you tell the Court in what different

ways shrimp are processed after they come in

from the boat?

Well, they can be canned, they can be cooked

and peeled and packed in cans hermetically

sealed, frozen raw as peeled meat, they can be

headless, they can be processed what we call

fan tails, which are packed for ready frying.

Now, when the boat, that is commonly called

a trawl boat, goes into the sound, gulf and in-

lands, catch these shrimp, do you know whether

the catch they bring back is going to be canned

or cooked and sold in containers?

No, sir.

Or frozen and sold in containers?

No, sir.

When the shrimp come to the wharf do you

know?

We don’t know until we get down in the morn-

ing.

After the shrimp are completely hulled, as

shown by the last picture in File No. 3, which

I hand you here, can they still be used

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