# Petition for Writ of Certiorari — Mitchell v. Myrtle Grove Packing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0805%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1955 - **Citation:** 350 U.S. 891 ## Text INDEX Page SN icadnnecincinasecersastsnaentwars 1 EE tnnkdateehancneadetnienneinnn dete 1 RISE REO E A Rigen ante oer eno 2 Question presented - --.......-...-.-------------. 2 SE icnewssuacunsswerekteaneseveondsucasss 2 Reasons for granting the writ__...........-.------ 7 SR Sb iackuensinneeabvinednedusebannaneass 14 CS 17 hs oe 30 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: 31 ““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 32 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. 33 “Let me ask you, Mr. Adam. SUBJECT INDEX. Page OPINIONS BELOW Sr ke ress On 1 JURISDICTION .............. 1 QUESTION PRESENTED ...._—s—a—ad«sr—r adds > PPe Por O&O Peo PoP o 51 If you had to raise the lower one to the higher scale, to 75¢ an hour, would it be possible for you to continue? Couldn’t stay in business. As stated in the bill of complaint that the prices paid to the union for opening oysters and cleaning shrimp during the past sixteen or seventeen years, has risen about one thousand percent. Is that correct? It has risen quite a bit, but I don’t imagine it has gone that high. Now, Mr. Mavar, in conclusion, you know what canning is? Yes, sir. You have been all over the country? Yes. You have been in all kinds of canning plants? Yes, sir. And you are experienced in cans hermetically sealed? Yes. At various, in different plants? Yes, sir. And under different conditions? Yes. Is there any direct or necessary relation be- tween the first process here of cooking and packing the meat of oysters and the canning of them? No, sir. Q. A. (28) 52 Would that apply likewise to shrimp? Yes, sir. Cross-Examination By Mr. Bidwell Adam, Counsel for Defendants: Mr. Mavar, what office do you hold in connec- tion with the Mavar Shrimp and Oyster Com- pany; are you an officer of the corporation? No, sir, I am an employee. In what capacity do you represent the Mavar Shrimp and Oyster Company at their plant at Biloxi; do you have a title? Well, no, not specifically. I am a second lieu- tenant, or superintendent. You act as superintendent of the plant? Yes, sir. Your organization has a kind of fleet of boats; that’s correct, isn’t it? Yes. How many boats do you have, use to go in the waters of the Mississippi Sound, Gulf of Mex- ico, to secure shrimp and oysters? About thirty-five. Do you buy any oysters from any other boats other than your own fleet? Occasionally we do. You have what is known as a freighter; that is what is known as a lager? Oh, yes, we buy from all. 4), 2 4x Vr eee ee ©Prp © Po Po (29) © p> > ©re &@P PrP Oo PoP © 53 You buy from who you can; is that right? Yes. On the open market? Yes. I want to ask whether the prices of oysters and shrimp are fixed by a union? Yes. You have a Gulf Coast Fish and Shrimpers and Oystermen Union? Yes. And you pay so much a barrel and so much for certain grades and classes? So much a barrel for shrimp and oysters we buy by the pouud. Do you buy any of these oysters before they are brought into Biloxi to your plant? From the fishermen? Yes. No. You don’t buy them until they are brought to the plant? No. They are unloaded on cars and then they bring them into the plant. Is that right? Yes, sir. What I want to know is when does the oyster- man lose his title, or sell his interest in the 54 oysters, and when do you all buy. At what stage in the proceedings—these pictures of- fered by your lawyers, pictures numbers one to nine from Exhibit No. 1 of the plaintiff that are in this yellow envelope marked Ex- hibit No. 1, and nine pictures numbered one to nine? Yes, sir. And one I hold in my hand, number 9, which has this notation—“Oyster shucker having shucked meats weighed up in order to arrive at the amount earned.” Yes, sir. The oyster shucker shucked oysters from the shell and brought them to the window? Yes. Who did these oysters belong to? The fishermen that caught them. They are brought into your factory? Yes. And when they get out of the shells they get in a large can the shucker is holding in front of the scales and being weighed? Yes. After they are weighed you all buy them? Yes. You pay them how much a pound after they are taken from the shell? {ee gE ye oe ‘4 © Pp & Pe ©& PO Po Pp © Po p> 55 They run 40 and 45 cents a pound. Who do you pay for these? The fishermen that catch them. That the captain of the boat? Yes. That captain operates a boat in most cases for your organization? That’s right. And he operates with other men besides him- self. How many other men? Three to five. Each man receives a share—assuming they make $100.00 for oysters and there are four men and the boat, that would mean five shares, would it not? Yes. Each would get $20.00 out of that? Yes. At that stage, when you buy these oysters and you pay the captains of the boats and pay so much a pound for oysters, he in turn goes back and distributes this money to the mem- bers of his boat? Yes. And he also pays your organization a share for the boat? Yes, A. Q. A. Q. A. Q. These women that have to shuck these oysters, they are paid by whom, Mr. Mavar; at that time, this woman in picture No. 9, she gets how much a pound for shucking? 18¢ a pound, Who pays her? The company. Do you pay her before you buy them, or after? At the same time. At the same time, did this woman shucker have any arrangement with the captain of the boat about shucking of them; does he have any- thing to say about that? Yes, Does that woman have a representative in your office all the time? They are right at the scale. The defendants you named in this case, start- ing with Josephine Donnelley, all these ladies belong to a union also? Yes, sir. Do they have their representative all the time in the factory to see they are taken care of, their interest is taken care of? Yes. You don’t pay for any of the oysters until after they get at that window, come through that window and are weighed up? No. —— © > Op 57 And each boat load is brought to the factory, shucked, and goes through the processes of cleaning, preparing them for shucking, and after they are shucked then they are paid for and not before? That’s right. And you have that arrangement in working with the union? That’s right. In the old days, or prior to this arrangement, the factories bought at so much a barrel taken off the boats, loaded them in cars, but through the factory and union organization, both men and women, they got away from that, it being the scheme and desire to have them bring a better grade oyster into the plant? Yes. And they get larger prices for oysters. Is that right? Yes. Mr. Mavar, with reference to the manner in which the shrimp are handled. I want to refer to the exhibit, please sir, referred to as Ex- hibit No. 4, marked File No. 4, which has pictures one to 10 inclusive, I am now address- ing myself to Plaintiff’s Exhibit No. 4; picture No. 1 shows the proceedings of the shrimp in the early stages; is that right? Yes. Q. A. Q. A. Q. 2 > OP 58 And No, 2 shows where they are being received and placed on tank for cooking? Yes. No. 3 shows the shrimp being transported on cooling and inspection belt? Yes. And No. 4 is the same shrimp as shown on picture No. 3, being cooled and graded for size? Yes. And picture No. 5 shows graded shrimp being staked for use later on the picking table. Is that correct? Yes, sir. And picture No. 6 shows the same shrimp as picture No. 5 being placed in cans preparatory to being sealed? Yes. No. 7 shows the same shrimp after the cans are filled with water traveling down picking line to be sealed, and shows the canning ma- chine which hermetically seals the cans? Yes. Picture No. 8 shows the canned shrimp being placed in baskets preparatory to sterilization? Yes. No. 9 shows basket being dropped in kettle or drum for the purpose of being sterilized for 13 minutes at 250 degrees Fahrenheit? 59 Yes. And No. 10 shows the sealed and sterilized shrimp prepared for shipment? Yes, What I wanted to ask you, Mr. Mavar, the same arrangement with reference to oysters; is also true with reference to shrimp, so far as oper- ation of the fleet of boats is concerned, where they go out in the Gulf waters to catch shrimp? They go out to catch shrimp. And they work on shares the Same as they do with oysters? Yes, And you have three or four large boats you refer to as freighters? Yes, These men working on the small boats catch shrimp and bring them to the freighter. Is that right? Right. And unload on the freighter to be weighed? Yes. What do they get to show that they own the shrimp? Get a receipt from the captain of the freight boat. Does he also catch shrimp? Yes, > © >o p> © 60 When the small boats brings shrimp to the freighter that later brings them to the factory, what process with reference to unloading, handling and selling takes place; how is it done, I want to know that; is the shrimp unloaded on the docks, at the boat? Yes. Into what? Into a tank on the end of the pier. The ice is removed. Is that assortment or shipment, group or batch of shrimp brought in by a boat named by a freighter named John M, and the John M. brings a batch of shrimp, are those shrimps set aside separate from all other shrimp? They are all mixed up. But say the captain off the... has a receipt that he owns 500 pounds of shrimp? That’s right, they have a receipt for their shrimp. As set out in pictures one to ten in Exhibit No. 4, when is it you buy the shrimp, when is it that they become your property? We buy them when we unload them at the fac- tory. Then your arrangement to buy shrimp is a little different than that to buy oysters? Yes. Then when they are picked they belong to you? Yes. (35) ©Pr ©PrP OP Op 61 They belong to you when you unload them at the pier; is that right? Yes. Getting down to the actual work of these people, the time it takes to shuck oysters and pick shrimp. These shrimp pickers that have to pick shrimp, they pick them in your factory after they go through the process of boiling and cooking? They pick them before. Don’t you have some shrimp picked after they are cooked? They are picked out and graded. You take the hulls off of them before they are ever cooked? Yes. That is true of all shrimp in your factory, and of other factories operating on the same basis? Yes. After the shrimp are picked by these employees, in the picking department, Mr. Mavar, they are classified and placed in three or four different classifications, and you sometimes cook the shrimp and seal them as soon as they are cooked? Yes. The other shrimp are frozen after they are cooked ? Yes. 62 Those frozen are not put in little cans and sealed? No. Most anybody comes in to you and gets them £4 and carry them off to retail trade? 4 Right. , Where they are canned and sold as in these As pictures, they are put in cans, hermetically r sealed, and later put in containers of either e 24 or 48 cans to the container? Yes. Of different sizes and weights? E Yes. And you then ship them off to different mar- kets throughout the country? Yes. Is it your contention that these people picking shrimp, the defendants here, that they don’t participate in any type of work classifying them as engaged in the canning business? That is right. t They don’t have anything to do with canning? No. At the time they pick them, or at the time they pick anything, do you or anyone else know what is going to be done with that at that time? No. ra e f eo Pa [ Y My - © > Crp &© Po PoP oO 63 You might get an order for a 1000 pounds of shrimp and sell them? Right. Those shrimp are in cans? No. What about the shrimp that are in cans? What do you mean? Do they have anything to do with the canning of those shrimp? No. How much time from the time the shrimp are picked; how do you pay them off, how often; do they get paid off every day? We pay them for the hulls. Whatever system you use. Assuming they have 20 pounds of hulls, they get paid how much per pound? 4¢ per pound. Those 20 pounds of hulls are weighed and they get their 80¢ right then? Yes. And if she wants to go home she can go home. Is that right? Yes. Are any hours set when a picker must start or when she must stop by you all? Not as far as we are concerned. 64 Q. It is all done on a basis of so much a pound for the amount that picker picks. Is that right? A. Right. Q. With reference to when pickers are through and retire, leave the plant, are those shrimp canned that same day? Yes. Some may be canned and some may be frozen and some shipped away right then? Yes. do with the process of canning? A Q A Q. But the pickers, you contend, have nothing to A. No. Q It is not your contention that those who come in under the canning process are not entitled to come under the wage and hour law? A. Repeat that, please. Q. Under the benefits of the wage and hour law? By Mr. Guice: I will say this: That we don’t contend that people employed in the cannery are exempt by provisions of law. They are covered. By the Court: . For the record, gentlemen. As I understand it, from the oral statement, you have other witnesses who would testify to substantially the same thing as this wit- ness. (38) By Mr. Guice: That is right, but it would be substantially the same testimony. By the Court: I can’t see no necessity in putting the other wit- nesses on. The Plaintiffs rested. MRS. GEORGE DUVALL, a witness called on be- half of the Defendants, after having been first duly sworn, testified as follows: Direct Examination. By Mr. Bidwell Adam, Counsel for Defendants: State your name, please. Mrs. George Duvall. You are Mrs. George Duvall? That’s right. You live in Biloxi? That’s right. Your business at this time is what, Mrs. Du- vall? President of the Seafood Workers Association. Your home office, principal place of business is located in Biloxi, Mississippi? That’s right. r &© PrP © PO Po Po (39) o > re Fe PP €¢ oF & PES & Po P 66 How long have you been president of this or- ganization, Mrs. Duvall? Fifteen years. You know all the defendants in this case? Yes. They are members of your organization? Yes. And you know them personally? That’s right. I want to ask you if you, with several members of the defendants in this case came to see me? That’s right. I want to ask you if, in your work as president of your organization, you are in contact with members of the union? Every day. You heard the testimony given by Mr. Nick Mavar, put on as a witness by the plaintiffs; you were in the Court room when he testi- fied? Yes. You heard all his testimony? That’s right. Now, with reference to the manner in which the oysters are brought into factories, in any factory, did he correctly state that? Right. a (40) rp &©P OP OP 67 The manner in which the oysters are shucked by the shuckers. You heard his testimony, did he correctly detail just exactly like the factory operates? He correctly detailed it. I want to know from you, in your work you go into all these factories? Every day. You observe your workers, your members of your organization? That’s right. You have a chance to discuss with them your problems? That is true. And examine conditions as to health, sanita- tion, whether they are clean, properly main- tained. That part of your job to see the mem- bers of your organization have clean wholesome places in which to work? Yes. So you have a chance to see the conditions un- der which they work? I don’t have anything to do with what the conditions are, but all our plants are modern. If you found they were not sanitary you would take that up? I would speak about it and it would be cor- rected. (41) Or Ope er © P 68 When these oysters are shucked and brought to the window and weighed—you saw the pic- ture No. 9 in this case where a woman brought oysters and dumped them on the scales to be weighed—it was testified that the oysters, up until that time, belonged to the fishermen. Is that correct? That is a fact. After they are weighed then the boatmen are paid for whatever amount they bring to the factory. Is that correct? Correct. You heard me ask Mr. Mavar about if there were four members of a crew and the boat get- ting one share. Is that correct? That is right. You haven’t done anything but be president of this organization for fifteen years? Right. That’s all you have done? Right. And you are thoroughly familiar with refer- ence to conditions of all factories? I am. Do you know that some of the shrimp, when they are brought in, some of them are cooked and sold at the factory after they have been picked and cooked, and you know that some are frozen and some are canned? > & o> © Op 69 Yes. May I make a statement? Yes. When those shrimp come in off the boats and put on the table for those pickers to pick, I have some members—I am quite sure I am telling the truth—if you asked one of the mem- bers if they were going to be picked and proc- essed they don’t know. For instance, they are large shrimp, if there are large shrimp among them they pick the heads off and throw them in a trough of running water, but if they are medium shrimp the heads are picked off and are thrown into a drum. Nobody knows that. I was a picker before I was president of the union and I saw thousands and thousands of pounds of cooked meat pulled out and put in one gallon cans that was not processed product. Therefore, you don’t actually know whether it is going to be processed or not. To clarify your statement. When they are put in cans you don’t mean put in large cans and sealed and processed? No. The size of the can would be how large; did you say a gallon? A gallon can and put it in cold storage. They were just put in a gallon can for con- venience? Yes. They have orders for that kind of shrimp. Then when they get orders the trucks would back up and take them away. Is that right? 70 Right. But they were not processed? No. You don’t actually know what is going to happen until you get to that table. All our members are paid in the back by the hour. Could any lady engaged in the picking of shrimp, could they or have they any way of knowing that the shrimp they pick would be frozen packed, or put in gallon cans? No. They don’t have any way of knowing that. Like I say, nobody knows that until they are put on the packers table. When the pickers get through with the work she performs as a shrimp picker they leave, don’t have anything to do with canning or processing? Not a thing. They work in a separate department? That’s right. The piece-worker work is in a separate department. They have no reason to go into the packing rooms where goods is being put up at all. On this wage involved in this case, can you tell us what the average pay of a person engaged in picking shrimp or shucking oysters is? We have some of our workers who are very very slow; they don’t average much. Then we have some who will average 75¢ and a little better. Then we have some who average $2.00 or $2.25 an hour. (43) 71 That depends on the ability of the picker or the shucker to turn out a great deal more than others? That is right. In other words, some can put out more work than others? You have some folks who never get any faster, just pick at the same speed. We have some that make fast workers and make good money out of it. You have some that are not very fast, did you say, some that will come and work a day and won’t make half as much as a fast worker? That’s true. If all were put on a basis of 75¢ an hour would the business of the factory be so that every- body could go on a profitable basis? I don’t think so. The people who work fast wouldn’t be willing to work alongside folks so slow. You would have dissatisfaction and that wouldn’t work. Have you discussed this matter with your mem- bers? Repeatedly. The fast workers are going to slow down if they are not going to get any more than the other people that didn’t earn it is getting. They are not going to work and let them get it and they not. 72 Let me ask you this. The average shrimp picker and oyster shucker, as we are referring to, would make the one woman picking shrimp that makes 75¢ an hour—about how many pounds of shrimp do they have to pick to make 75¢ an hour, pay—4¢ a pound; if they pick 20 pounds of shrimp they would make 80¢ an hour? Right. If you paid them all the same, 75¢ an hour, many of them would only pick about 10 pounds an hour? Right. Then you would be paid 75¢ an hour for only 40¢ an hour? 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 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 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. Every- body is satisfied with what they can earn. These older people, when they pick shrimp and shuck oysters, are they earning 75¢ an hour on the basis of 4¢ a pound? 73 Some of them may, but very few. And there are some that could? That’s right. Those that you know who cannot do that, would they be interested in trying to make the fac- tory pay of 75¢ an hour? Frankly, under the law, and they know that is what the law is, they would expect it, if it came under the provision of the wage and hour act. Our members contend they don’t come under that law because that is all piece work. © Pop > Q. State if you could successfully operate a fac- tory and pay 75¢ an hour instead of piece work? A. I am not familiar with that, but I don’t see how they could. Cross-Examination. By Mr. W. L. Guice, Counsel for Plaintiffs: Q. About how long has the Union been in exist- ence, what you call the shrimpers union? A. Miss Kolosky could answer that. Q. About twenty-five years, during the time you have served and others who have served with you, the earning powers have been advanced around a thousand percent? A. Yes. (45) MRS. FLORENCE POWLOSKI, a witness called on behalf of the Defendants, after having been duly sworn, testified as follows: 74 Direct Examination. By Mr. Bidwell Adam, Counsel for Defendants: Please state your name. Florence Powloski. You live in Biloxi, Mississippi? Yes. How long have you lived here? Forty years. I want to ask you, Mrs. Powloski, if you are connected with any organization in Biloxi? The Seafood Workers Association. And the Gulf Seafood Workers Association? Yes. That is a branch of the ladies association? Sister organization. How long have you been a member of that or- ganization? Since its organization I have been a board of director and for the past twelve years I have been secretary and treasurer. You have been a Vice President before that time, and now you are secretary and treas- urer; is that right? Yes. Your duties are the same as any secretary of that type? Yes. You were in the Court room and heard Mrs. Duvall, heard her testimony? > SPOo Poe & PO PO PO © &> &>P 2 ied abe Yes. You heard her testimony from start to finish? Yes. Has she correctly stated the conditions under which members of your union work? She has. Has she accurately given details as to the workers work and the manner of work and employment of your union in the factory? Yes. Do you have occasion to go into the factories? Yes, I do. Did you ever work in the factory? Yes. You have worked in a factory? Yes. Before I was secretary and treasurer | was a board of director and I was a floor walker. At that time Mr. Taultavaul operated ihe plant. The union and the factory work in harmony very well? Never had any argument. I 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 de- sires in this case; have you got any informa- tion you care to give the Judge? 76 We would like to work like we did in the past, which has been the method of our grandmothers and grandfathers. In piece work you earn what you can, a scale of work set by the asso- ciation and then brought to a meeting with the packers. We would like to work like we did in the past. May I ask you, do you have meetings of your organization and fix the price you receive, so much a pound for oysters and so much a pound for shrimp? We do. We have special meets called, advertise for three days. It is brought before the members and brought before the body of pack- ers. Would you say that what Mrs. Duvall testified to in her entire testimony is substantially what you would testify to if I would ask you what I asked her? I would, if you asked me the same thing you asked her. Yes. Cross-Examination. By Mr. W. L. Guice, Counsel for Plaintiffs: Q. In the pictures, which you have examined and which are before the Court as Plaintiffs Exhibits No. 1 to No. 4, and marked Files No. 1 to No. 4, showing separate processes of oysters and shrimp, and separate canning, ens a Auinsnelateebae “ Ba oreo eR AY eee 77 there appears to be among the workers quite a number of Negro or colored people? A. Right. Q. They are members of your union? A. Yes. Q. They receive the same fair treatment and wages as any other members of your union? A. Right. Q. They are, however, is it not a fact, ordinarily slower in their movements? A. Yes. Q. And more of them earn less than 75¢ an hour? A. Yes. (48) MRS. ROUMANIA A. FORD, one of the defend- ants, after having been first duly sworn, testified as fol- lows: Direct Examination. By Mr. Bidwell Adam, Counsel for Defendants: Will you give us your name, please ma’am? Roumania A. Ford. Where do you live? Biloxi, Mississippi. You are one of the defendants in this case? Yes. © PO >L Pe I want to ask you, Mrs. Ford, if you heard the president of your organization, Mrs. Duvall, and the secretary and treasurer of it, Mrs. Powloski, testify? 78 I did. Did you listen to every question I asked them and their answer? I did. Did they correctly, truthfully, testify the facts? They certainly did. Would you make any change in your testimony if I put you on the stand and asked you the same questions that I asked them? A. I couldn’t. © pep Op MRS. JOSEPHINE DONNELLEY, one of the de- fendants, having been first duly sworn, testified as fol- lows: Direct Examination. By Mr. Bidwell Adam, Counsel for Defendants: Q. You are Mrs. Josephine Donnelley? A. I am. Q. And you live in Biloxi, Mississippi? A. Yes. (49) Q. Mrs. Donnelley, you are one of the defendants in this case? Yes. Q. You heard the questions that I asked Mrs, Duvall and Mrs. Powloski? ie A. Right. . Q. Now, I want to ask if they have covered ac- curately and correctly the conditions where you work? 79 A. Yes. Q. And the way people are paid for their work? A. Right. Q. Would you make any changes in their testi- mony if you were asked the same questions? A. No. Q. Do you have anything else you want to say? A. No. MRS. THERESA CLARK, one of the defendants, having been first duly sworn, testified as follows: Direct Examination. By Mr. Bidwell Adam, Counsel for the defendants: You are Mrs. Theresa Clark? Yes. And you live in Biloxi? Yes. Mrs. Clark, you are one of the defendants in this case, are you not? Yes. You have heard the testimony here today? Yes. You heard the president, Mrs. Duvall, and sec- retary and treasurer, Mrs. Powloski, of your organization testify? OPe rp © Po Po (50) A. Yes. Q. You heard all the questions I asked them? Yes. And you heard their answers? Yes. Now, I want to ask you if your president and secretary and treasurer correctly and truth- fully answered the questions with reference to working conditions? Yes. The conditions, the basis under which they are paid? Yes. Would you answer them, would your answer to the questions asked them be the same as theirs? Yes. MRS. OLIVIA HAMMOND, one of the defendants, having been first duly sworn, testified as follows: Direct Examination. By Mr. Bidwell Adam, Counsel for Defendants: Q. Please state your name? Olivia Hammond. Q. Mrs. Hammond, you are one of the defendants in this case? A. Yes. Q. I want to.ask if you heard the president and the secretary of your organization testify here today? Yes. > You have been in the Court room all the time? © (51) Q. A. Pre Pp OPOoOPr OP ODO > 81 Yes. You heard all the questions asked them? Yes. And you heard all their answers? Yes. I want to ask you if they have correctly and honestly detailed your working conditions? They did, yes, sir. The members of your organization work in the factories at Biloxi? Yes. You are familiar with the work? I am. You have been working there for a long num- ber of years? For thirty-five years. Then you are familiar with all of it? Yes. I want to ask if I put you on the stand and asked you all the questions that I asked your president, Mrs. Duvall, and your secretary and treasurer, Mrs. Powloski, would you answer them the same as they did? The same as they did, yes. You wouldn’t change it any? No, sir. The Defendants Rested. 82 By the Court: Let me ask you, Mr. Adam, as I understand 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. (52) By the Court: As I understand it, Mr. Adam, while there is much conflict in this testimony, you are demanding, insisting your clients are entitled to the minimum wage? By Mr. Adam: Yes. Under the law. By the Court: I find now, as a matter of law, the Court has juris- diction, and that it is a detestable controversy between these parties, and as matter of fact there is a rather close question of law involved and one upon which I want thorough argument, and I am going to let you submit it by brief because there is no dispute upon the facts of the case. A lot of testimony has been introduced which is im- material, for instance, the opinion of the litigants, some of them that it would be better for the factory and the union to be permitted to continue under the old scale, under the old system. That is entirely immaterial, for if they are covered by this act the Court will so hold. The only reason x * EF Pat wae Lad eH os € 4 z §3 I am requiring a brief is where your facts as detailed by witnesses on both sides and substantially admitted that these defendants are covered by the Act of Congress now to be construed. If they are covered by it then, of course, the bill would be dismissed and the declaration of law would be made that they are covered by it. Of course, if they are not covered by it then the Court would declare they are not covered by it, and the Court would issue injunction to prevent them proceeding by injunction. Bringing it down to a closer and more narrow point of law, the ques- tion for determination by the Court is whether the work is a part of the canning process of the business of these (53) plaintiffs. If it is a part of the canning process, within the meaning of the act, then they are covered. If it is not a part of the canning process, under the act, then the act would not be as to them. That is all I can determine at this time. I should like to have instructive briefs. I will give the Plaintiffs fifteen days in which to file their brief, and give the Defendants fifteen days in which to reply thereto. JUDGE’S FINDING OF FACT AND CONCLUSIONS OF LAW. (Filed July 3, 1950) (Title Omitted) The Court finds the followiag facts in the above styled cause. 1. That the Plaintiffs are non residents of the State of Mississippi, being corporations organized under 84 and with their chief domicile in the State of Louisiana, but engaged in the operation of shrimp and oyster boats, shrimp and oyster packing plants, and shrimp and oyster canning plants in the City of Biloxi, Harrison County, Mississippi; and the Defendants, and all persons similarly situated, are residents of the State of Mississippi, being domiciled with- in the Southern Division of the Southern District of Mis- sissippi. 2. That the amount in controversy exceeds the sum of $3,000, exclusive of interest and costs, and there ex- ists at the present time, as shown by the admissions (54) in the answer, the evidence produced in the Court, and the admissions made in open Court, demands upon the part of the Defendants against the Plaintiffs which will exceed in the case of each Plaintiff the sum of $3,000; and that there further exists a justiciable controversy between the parties of which this Court has cognizance because of the amount involved, together with the fact that the suit is between residents of different states, and arises under a law of the United States of America. 3. It appears further from the evidence, both docu- mentary and oral, admissions made in the pleadings and in open Court, that the City of Biloxi has, in the past been, and is now one of the chief centers of the shrimp and oys- ter industry in the United States of America, and that there is located in said city numerous oyster and shrimp processing plants and factories, some of which are en- gaged in processing shrimp and oysters raw for the pur- pose of being sold other than in hermetically sealed cans, as well as in some instances processing them for the pur- Ee. at a ee, 85 pose later of canning the same within the meaning of can- ning as hereinafter construed by the Court. It appears and I so find that each of the Plaintiffs own separate plants at Biloxi, Mississippi, and that their operation, including the taking and harvesting of shrimp, being shell fish and crustacea, including the going to and re- turning from the oyster beds and shrimp grounds, includ- ing the employment by the Plaintiffs of the Defendants in the loading, unloading, packing or processing of oysters and shrimp, and that during the period complained of in the complaint, that is on and prior to the first day of March, 1950, and for years theretofore, the Defendants were casual (55) workers of the Plaintiffs and were engaged in one of the operations of processes by which shrimp and oysters are processed so that they might theerafter be in a con- dition under which the same could be shipped raw, cooked or canned. The evidence further shows, and I so find, that the acts leading up to the actual process of canning are as follows: A. In the case of shrimp,—trawlers, that is motor- boats driven by internal combustion engines, and having a net tonnage of from one to twenty tons, which vessels are equipped with a seine, commonly called a trawl, which by means of boards called otterboards, weights, and floats, would extend in the rear of said vessel for approximately sixty feet in width, and eight or ten feet in depth, and being propelled by the power of said vessel, would engage in the bag of said trawl or seine, edible shrimp which are cap- ORME ed. a. 86 tured by means of the seine or trawl being moved upward to the rear deck of the vessel through the operation of a power winch, and after being placed in the hold of said vessel, together with sufficient ice to preserve the same, until by the power of the vessel itself, or upon being loaded onto another vessel, the said shrimp are brought to the wharf of the company’s plant in Biloxi, these shrimp being involved with crushed ice, would be shoveled onto a con- veyor that would elevate the same for about ten or twelve feet, from which the said shrimp, together with the ice content, would be discharged into a tin trough filled with water, and by force of the water and gravity, the shrimp proceeds along this trough for a certain dis- tance until they are dumped into a tank, which performs (56) two functions: first, washes the shrimp, and second, sep- arates the shrimp from the ice and then the separated shrimp by means of a second trough where for a certain number of feet, the same by force of gravity, are conveyed past an inspector, who inspects and removes all shrimp considered unfit for commercial use, until finally the shrimp are discharged into baskets, which baskets are then carried to tables and the shrimp placed upon the tables, on each side of which are located the Defendants and per- sons similarly situated, who then engage in the process of either removing the heads of the shrimp, or of remov- ing the heads and peeling off the skin of the shrimp. When the heads are removed from the shrimp but not peeled, the shrimp are then placed in a waterbourne conveyor which carries them into another room, where they are weighed and placed in five pound containers and prepared for quick freezing and shipment in interstate commerce. 87 In other cases, depending upon the size and quality of the shrimp, the shrimp are placed in a different trough and carried into a different room, in which room they are graded, either for the purpose of being placed in fric- tion top cans and preserved with ice, or are moved into a further process which includes salting, weighing, capping, canning, hermetically sealing, pasteurizing, labelling and boxing the shrimp for shipment in interstate commerce, the use to which the shrimp are put being dependent upon their size, grade and quality, and when the shrimp are first taken from the boat and carried to the processing room where they are peeled or beheaded, neither the pick- ers nor the plant at that time know whether or not the shrimp are going to be used for canning or for sale in some other form. If the shrimp are used in some other form, such as being packed in boxes and uuick frozen, or are placed (57) in large containers with friction top seal where protected by ice ,they are shipped to different parts of the country in intertsate commerce, It would appear from the evidence and the admis- sions that the original process is separate and distinct and has no immediate relationship to the after use of the shrimp, that is whether they are used for canning, freez- ing or cooked and peeled. B. In the case of oysters, boats of the sau. type as engaged in catching shrimp, are sent to the oystr grounds of Louisiana and Mississippi and there by means of dredges suspended from each side of the boat, enclose or capture oysters which are brought to the deck of the ves- sel, placed in the hold of the vessel, and by means of the CLA DRS) LEASED ENE TS HE Geveer~ 4 88 vessel itself, transported to Biloxi, where at the wharf of the company by means of power hoists, the oysters in containers are raised above the level of the wharf, and there are placed into a funnel-like contrivance which dis- charges the same into a revolving drum, into which water is constantly pouring, resulting in the washing from the oysters a great part of the dirt accumulated on the bot- tom of the sea, and preparing the oysters for the next step; and from this washing machine automatically the oysters are placed in cars approximately eight feet long and three feet wide which cars are pushed along a small track into a large iron box, capable of accomodating three or four cars of oysters and commonly called a steam box, where ‘he oysters are subjected to about ten pounds of steam and about 250° Farenheit, which results: first in completely opening their shells and second, in cooking the meat of the gysters so that it is then and there edible and (58) useful for human consumption, and after being removed from the shell can and sometimes is carried many miles to a point of canning often in a different state. From this steam box, the cars are pushed along tracks into a shuck- ing shed, where the defendants and similarly situated persons, by means of small knives, called oyster knives, remove the meat from the oysters, place it in cans, and when five pounds of meat is obtained, take these to a win- dow leading into a cannery of the plant, and there the meat is weighed, and the shuckers, that is the Defendants and persons similarly situated, are paid at the rate of ap- proximately 18¢ per pound for the shucked meat. 4. It further appears, and I so find, that both in the operation of the shrimp boats and the oyster boats, ~ al ee re 89 some of which are owned by the Plaintiffs and others owned by private individuals, the boats are operated by a captain and crew, under a partnership, or joint adven- ture arrangement, with the Plaintiffs’ companies, by which the captain and crew have absolute control of their desti- nation, their hours and manner of work, and to whom they sell the catch, provided, however, that the catch is always sold to the Plaintiffs if they have a boat present or are willing to pay the market price, but if the market price is not paid, or for any other justifiable reason, the captain may sell the catch to a third person. When the shrimp are brought to the company, the company pays the captain and crew for the shrimp; but, in the case of oysters, the catch is paid for by the number of pounds of oyster meat yielded by the catch and, therefore, the title to the oyster meat does not pass to the company until the first process performed / (59) by the Defendants is completed, and at any time during this process, if the captain and crew are unsatisfied with the yield or the price, the oysters can be sent to another plant for working. If the oysters are bought by the com- pany, and become the property of the company, that is the Plaintiffs in this case, they are then either sold to some other company for canning or if they are to be canned by the same company, are dumped into a trough which car- ries them through a washing machine and saline bath, by means of which all foreign matter is deposited at the bot- tom of the bath, and the oysters float into a receptacle from which they are taken and placed upon tables, and from these tables cans are filled by persons other than 90 workers of the class who are made Defendants in this case. The cans are then weighed, filled with salt water, placed upon a belt, and carried to a capping machine. The cans are then hermetically sealed, then placed in large round baskets and deposited in a processing kettle, where they are further pasteurized by means of steam for 14 minutes at 230° Farenheit. Later these cans are cooled by water, labels are placed thereon, and the cans placed in boxes and then stored or shipped in interstate commerce. I find from the evidence and admissions that the De- fendants and persons similarly situated, are engaged in a process involving shrimp and oysters which is separate, dis- tinct and unrelated to any future process necessary for the salability or shipment in interstate commerce; that this process is a distinct and intricate process by which they be- come merchantable food and salable in that form, prior to any process needed or required in canning. It appears from the evidence that in the case of oysters a long, distinct (60) and intricate process is carried on from the time the oysters are removed from the boat until they are sold by the crew and captain at the window where they then become the property of the purchaser and can be canned at the plant or sent to some other plant, or sold to some other person for canning. The evidence and admissions show that practically the same initial process is carried on, has been used for 50 or 60 years, and that during that time it has been a common practice to ship these oysters to be canned in other states or for one factory to can the processed meat of another factory, so that when the oysters are finally sold to the factory, by means of the 91 efforts of the Defendants, and others similarly situated, they have completed an initialed or original process, sep- arate and apart from canning. In the case of shrimp, it would appear that neither the crew, pickers, or factory owners know of the pur- poses for which the shrimp are finally intended; that this depends upon their being cleaned and graded, and that a large percentage of the shrimp are afterwards shipped in friction top cans, protected by ice, or frozen with their skins on, and only a limited percentage ever go into can- ning. And it further appears from the evidence by way of admission and by way of documents, that the initial proc- ess of picking, beheading, washing from the time they arrive by boat until they are ready for some of the three processes mentioned herein, is a separate and distinct process, not necessarily related to canning. It further appears from the evidence, the pleadings and the admissions, that each of the Plaintiffs employs about 200 laborers, about 40% of whom earn be- tween 40 and 50¢ per hour, about 40% earn between (61) 50 and 75¢ per hour, with the balance being able to earn from $1.00 to $1.50 per hour, and the ages of these persons range from 18 years to 70 or 75 years of age, and the earnings are influenced both by natural skill and aptitude of the worker as well as their age, in the performance in removing the shrimp and oysters from the hulls. The Court, therefore, finds as a matter of fact that the Defendants are engaged in the processings of seafood (other than canning). 92 CONCLUSIONS OF LAW FROM THE ABOVE FACTS. The Court finds the law on the above facts as follows: That the Plaintiffs, both of them, under the above facts, employ the Defendants, and those workers similarly situated, in work involving the processing of aquatic mat- ter (other than canning), and the Plaintiffs, therefore, are exempt from any obligation to the employees, or to other persons similarly situated, under Sections 206 and 207, Title 29 U.S.C.A., being Sections 6 and 7, 52 Stat. 1062 and 1063, as amended, such persons being specifi- eally exempted from the provisions of the Wage and Hour Law, being Section 213, Title 29 U.S.C.A., as amended, such persons being specifically exempted from the pro- visions of the Wage and Hour Law, being Section 213, Title 29, U.S.C.A., as amended, being Section 11 C. 736-63, Stat. 917, which section exempts all persons engaged in the taking, harvesting, cultivating, farming, loading, un- loading, packing, marketing, freezing, curing, storing, or distribution of aquatic products in interstate commerce except for canning. (62) In arriving at its conclusion of law, the Court has considered among others, the following authorities: Section 13 of the Wage and Hour Law, being Sec- tion 11 C. 736, 63 Stat. 917, being Section 213, Title 29 U.S.C.A., as amended. Wala v. Humphries, 133 F. (2d) 193. a SE ITE gE Ye Sag Vp a orn © 93 McComb v. Consolidated Canning Company, 174 F. (2d) 74, Definition of word Can in Century Dictionary as follows: Can: To put into a can; especially, to put into , sealed metal cans or glass jars, for preservation, as pre-' pared vegetables, fruits and meats. Definition of word Canning, 12 Corpus Juris Secundum, page 892. Henry v. Markeston State Bank, 68 F. (2d) 554, 557. State v. Pacific American Fisheries, 131 p. 452, 454. 73 Wash. 37. This the 3rd day of July, A. D., 1950. (S.) S.C. MIZE, Judge. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0805%3A2. Public record. Not legal advice.