# Appendix — Swift & Co. v. Wickham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0185%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1965 - **Citation:** 382 U.S. 111 ## Text SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1964 /76 5 No. 571 7 SWIFT & COMPANY, INC., ET AL., APPELLANTS, vs. DON J. WICKHAM, COMMISSIONER OF AGRICULTURE AND MARKETS OF NEW YORK. APPEAL FROM THE UNITED STATES DISTRICT COURT * FOR THE SOUTHERN DISTRICT OF NEW YORK INDEX Record from the United States District Court for the Southern District of New York Amended complaint A 1 Exhibit A—Regulations Governing the Inspee- tion of Poultry and Poultry Products (7 C. F. R. Part 81) Issued July 1961, United States Department of Agriculture, Agricui- tural Marketing Service, Poultry Division and amendments L 11 Exhibit B—Sample of plastic wrapper ap- proved for use by the plaintiff, Armour— Original Print Stuffed Junior Young Turkey MM 38 Exhibit C—Sample of plastic wrapper ap- proved for use by the plaintiff, Swift’s Pre- mium—Stuffed Young Roaster Turkey —.. NN 39 Order of Chief Judge J. Edward Lumbard des- ignating a three-judge court 00 41 Answer PP 42 Transcript of hearing, March 5, March 10 and March 11, 1964 1 44 Appearances 1 44 Recorp Press, Printers, NEw York, N. Y., Apri 9, 1965 ii INDEX Original Print Record from the United States District Court for the Southern District of New York—Continued Transcript of pearing, March 5, March 10 and March 11, 1964—Continued Colloquy, stipulation of counsel and offers in evidence 2 45 Testimony of Charles Atkin— direct 7 48 cross 31 61 redirect 79 88 Russell Posegate— direct 83 90 cross 92 95 William E. Hauver— direct 115 108 Offers in evidence 121 112 Testimony of William E. Hauver— cross 137 121 Offers in evidence 172 141 Testimony of William E. Hauver— ; cross 173 141 redirect aE Se ne Ate 222 170 Offer in evidence 223 170 Testimony of William E. Hauver— recross 227 3=6173 Francis Sniegocki— direct 230 175 cross 233 177 Kenneth K. Geiger— direct 234 178 cross ; 238 180 Charles B. Simonetti— direct 239 181 cross 241 1£2 William R. McKnight— direct 245 185 cross 249 188 Joseph Rufino— direct 254 191 cross 257 192 Original Print Record from the United States District Court for the Southern District of New York—Continued Transcript of hearing, March 5, March 10 and ' March 11, 1964—Continued Testimony of John M. Kerbs— direct sa 259 194 Offers in evidence 263 196 Testimony of John M. Kerbs— cross 270 201 Clyde Wensing— direct 277 205 cross 284 209 Testimony of James A. Van Zetta— direct 288 212 cross 292 214 Stipulation as to sales of stuffed and unstuffed turkeys 295 216 Plaintiff rests 296 217 Defendant’s motion to dismiss complaint —. 296 217 Testimony of John F. Madden— direct 300 219 cross 307 224 Offer in evidence 317 229 Testimony of John F. Madden— redirect 328 236 Offer in evidence 333 238 Testimony of John F. Madden— recross 333 239 redirect 335 240 Esther E. Hendler— direct 335 cross 346 246 redirect 347 247 recross wie 348 248 Both sides rest 349 248 Plaintiffs’ motion to amend complaint and col- loquy thereon 349 248 Reporter’s certificate (omitted in printing) 352a 250 Record from the United States District Court for the Southern District of New York—Continued Plaintiffs’ Exhibits: 1—Plzintiffs’ request for admission, dated Feb- ruary 20, 1964 2—Deposition of John F. Madden, dated De- eember 19, 1963 Exhibit 1—Notice to take deposition upon oral examination Exhibit 2—Letter from John F. Madden, Director to Mr. J. Edward Dean, Scaler of Weights and Measures, dated October 10, 1963 5—Swift & Company application for Label Ap- proval; temporary approval dated May 16, 1962 6—Swift & Company Application for Label Approval COMMENTED ON ONLY May 28, 1963 7—Letter of United States Department of Agriculture to Earl Spiker, Swift & Co., dated July 24, 1963 8—Armour & Company Application for Label Approval—COMMENTED ON ONLY May ig 395 axgust 19, 1963 9—Letter of United States Department of Agriculture to Basil M. Vastola, dated De- cember 12, 1963 10—Exchange of correspondence between John M. Kerbs and John F. Madden dated Feb- ruary 10, 1964 and February 25, 1964 ____ 11—Memorandum of H. G. Ehrhardt, Suffolk County Department of Weights and Meas- ures, dated February 6, 1962 _.___ 12—Letter from George W. Gloning, Jr., De- partment of Agriculture and Markets to Mr. E. E. Palmer, dated August 21, 1963 _.__. Original sew 353 251 353 251 361 259 376 270 377-271 378 278 389 279 393 283 285 398 288 399 - 289 401 291 402 292 INDEX Record from the United States District Court for the Southern District of New York—Continued Defendants’ Exhibits: A—Answer to request for admissions _______. B—Deposition of Robert William Burke, dated December 4, 1963 C—Deposition of H. W. Maidlow, dated Janu- ary 31, 1964 - D—Label of Idle Wild Farm, Rock Cornish Game Hen—Boned & Stuffed — E—Idle Wild Farm Applications for ap- proval—Temporary Approval dated March 26, 1963; June 24, 1963 and August 23, 1963 F—Letter of B. M. Vastola, Canada Packers to Philip Kayner dated October 30, 1963 en- closing letter of United States Department of Agriculture to Basil M. Vastola dated December 7, 1962 G—Idle Wild Farm Rock Cornish Game Hen Label Opinion of three-judge court, Friendly, J... Judgment Order of Judge Croake amending judgment dated June 12, 1964 Notice of appeal Order authorizing transmission of original pa- pers Affidavit of William J. Condon — Clerk’s certificate (omitted in printing) ——. Order postponing jurisdiction Original Print 404 295 404 295 407 297 470 337 519 367 521 369 524 372 526 374 527a 376 554 396 555 397 556 398 561 401 562 402 564 403 565 404 Orn 8 ~ [fol. A] [File endorsement omitted] IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 63 Civil 3085 Swirr & Company, Inc. and Armour anp Company, Plaintiffs, —against— Dow J. WicxHam, Commissioner of Agriculture and Markets of the State of New York, Defendant. Amenpep CompLtarint—Filed November 7, 1963 Plaintiffs, for their amended complaint against defen- dant, allege: First: Plaintiff Swift & Company, Inc., hereinafter re- ferred to as Swift, is a corporation duly organized and existing under the laws of the State of Illinois and is qualified to do business in the State of New York. Second: Plaintiff Armour and Company, hereinafter referred to as Armour, is a corporation duly organized and existing under the laws of the State of Delaware and is qualified to do business in the State of New York. Third: Defendant is Commissioner of Agriculture and Markets of the State of New York whose duties include the enforcement of the Agriculture and Markets Law of the State of New York and the promulgation and enforce- ment of rules and regulations pursuant to that law. Fourth: Under USC, Title 28, Sections 2281, et seq., provision is made for the convening of a three-judge dis- trict court where the relief requested is an interlocutory or permanent injunction restraining enforcement, opera- tion or execution of any state statute by restraining the action of any officer of such state in the enforcement or J2 execution of such statute. As appears more fully below, plaintiffs seek such relief and request the convening of such court. {fol.B] Fifth: This action is brought pursuant to the Federal Declaratory Judgment Act, 28 USC, Sections 2201 and 2202, to protect the rights bestowed on plaintiff under Article I, Section 8, Clause 3, and Article VI, Clause 2, of the United States Constitution, Amendment XIV, Sec- tion 1, to the United States Constitution, and by the Poultry Products Inspection Act, 21 USC, Sections 451, et seq., and the regulations issued thereunder as more fully appears below. The amount in controversy, exclusive of interest and costs, exceeds the sum of Ten Thousand and No/100 Dollars ($10,000.00). Sixth: Plaintiffs are engaged, inter alia, in the business of the manufacturing, processing, distributing, offering for sale and selling food products, including poultry and poultry products, throughout the United States. Among the products manufactured, processed, distributed, offered for sale and sold by plaintiffs are frozen stuffed turkeys. Plaintiffs ship in interstate commerce several hundred thousand pounds of said stuffed turkeys throughout the United States from their plants located in Minnesota, Wis- consin and California. Such interstate shipments of frozen stuffed turkeys are an important part and represent a sub- stantial portion of the business of plaintiffs. Seventh: A frozen stuffed turkey is a poultry product consisting of the eviscerated carcass of a turkey whose visceral cavity has been filled with an edible dressing and which is frozen at the manufacturing plant immediately after stuffing and remains frozen until its sale to the ulti- mate consumer. The frozen stuffed turkeys produced by plaintiffs in their manufacturing plants in Minnesota, Wis- censin and California are enclosed and sealed in a flexible plastic wrapper prior to freezing. The frozen stuffed turkeys are intended to remain and do remain enclosed in these plastic wrappers oon after their sale to the ultimate consumers. 3 [fol.C] Highth: The Poultry Products Inspection Act, 21 USC, Sections 451, et seg., prescribes a comprehensive detailed scheme for regulating the processing and distribu- tion of poultry and poultry products in interstate com- merce. The following are pertinent provisions of that law: “The term ‘Secretary’ means the Secretary of Agri- culture.” 21 USC 453(b). “The term ‘immediate container’ includes any consumer package ....” 21 USC 453(p). ' r “The Secretary whenever processing operations are being conducted, shall cause to be made by inspectors post mortem inspection of the carcass of each. bird processed ...” 21 USC 455(b). “Bach immediate container of any poultry product in- spected under the authority of this chapter and found to be wholesome and not adulterated shall at the time such product leaves the official establishment bear, in addition to the official inspection mark, in distinctly legible form, the name of the product, a statement of ingredients, if fabricated from two or more ingredients including a declaration as to artificial flavors, colors, or preservatives, if any, the net weight or other ap- propriate measure of the content, the name and address of the processor and the approved plant number of the’ official establishment in which the contents were processed.” 21 USC 457(a). (Italics supplied.) “The following acts or the causing thereof are hereby prohibited : i (a) The processing, sale or offering for sale, trans- portation or delivery or receiving for transportation, [fol. D] in commerce or in a designated major con- suming area of any poultry product, unless such poultry product has been inspected for wholesome- ness and unless the shipping container, if any, and the immediate container are marked in accordance with the provisions of this Act. (d) Using in commerce or in any designated major consuming area, a false and misleading label on any poultry product.” 21 USC 458. (Italics added.) Ninth: Pursuant to the authority granted by the Poultry Products Inspection Act, the Secretary of Agriculture of the United States has issued regulations governing the manufacture and distribution of poultry and poultry prod- ‘ucts, including detailed regulations with respect to the labeling of such products. The pertinent sections of such regulations are set out below: 7 CFR 81.1 provides, in part: “‘Administrator’ means the Administrator of the Agri- cultural Marketing Service of the Department of Agri- culture or any other officer or employe of the Depart- ment to whom there has heretofore been delegated or to whom there may hereafter be delegated the au- thority to act in his stead. ‘Department’ means the United States Department of Agriculture.” 7 CFR 81.125 provides: “Except as may be authorized by the Administrator with respect to shipments of products between official {fol. E] establishments, each shipping container and each immediate container of any product shall at the time it leaves the official establishment bear approved labels containing information in accordance with the provisions set forth in Sections 81.126 to 81.146, in- clusive, and the act.” 7 CFR 81.127 provides, in part: “No label, except printer’s proofs bearing official iden- tification shall be printed until the printer’s proof or a photostatic copy has been found by the Administra- tor to be acceptable...” 7 CFR 81.130(a) provides: “Bach label approved for use on an immediate con- tainer for poultry products shall bear in distinctly legible form the following information: (1) the com- mon or usual name of the poultry product. (2) a statement of ingredients if fabricated from two or more ingredients, including a declaration as to arti- ficial flavors, colors or preservatives, if any. Such in- gredients shall be listed by their common or usual names in the order of their descending proportions. (3) the net weight or other appropriate measure of the contents, except that the Administrator may ap- prove the use of labels for certain types of immediate containers which do not bear the net weight...” - (4) the name and address of the packer or distributor and, when the name of the distributor is shown, it shall be qualified by such term as ‘packed for’, ‘dis- tributed by’ or ‘distributors’. [fol. F] (5) the official inspection mark...” A copy of the full text of the regulation issued by the Secretary of Agriculture pursuant to the Poultry Prod- ucts Inspection Act is attached to and made a part of this complaint as Exhibit “A”. Tenth: The manufacture, labeling, disiributiou and sale of frozen stuffed turkeys in interstate commerce are sub- ject to all the provisions of the Poultry Products Inspec- tion Act and the regulations issued thereunder. Plaintiff Armour’s plants at Barron, Wisconsin, and Turlock, Cali- fornia, and plaintiff Swift’s plant at Detroit Lakes, Min- nesota, are operated within the authority of the Poultry Products Inspection Act and under the jurisdiction of the United States Department of Agriculture. Every operation in these plants is conducted under the continuous super- vision of United States Department of Agriculture in- spectors. The facilities of the plants and every label ap- plied to every product produced therein is required to have and does have the prior approval of said Department. Eleventh: Under Article I, Section 8, Class 3, of the Constitution, Congress has the power to regulate the label- ing of products moving in interstate commerce until the product has come into the possession of the ultimate con- sumer. In the exhaustive provisions of the Poultry Prod- ucts Inspection Act and the broad grant of power to the Secretary of Agriculture to issue regulations thereunder, the Congress has exercised its power to the fullest with regard to poultry and poultry products. Twelfth: The plastic containers in which plaintiffs wrap their frozen stuffed turkeys are consumer packages and, as such, are governed by the provisions of the Poultry Products Inspection Act and the regulations issued there- under which regulate the labeling of the “immediate con- tainer” of poultry or poultry products. The wording of the labels of said plastic wrappers has been approved by [fol. G] the United States Department of Agriculture pur- suant to the Poultry Products Inspection Act and the regu- lations issued thereunder. A sample of the plastic wrapper approved for such use by the plaintiff Armour is attached to and made a part of this complaint as Exhibit “B” hereof. A sample of the plastic wrapper appreved for such use by the plaintiff Swift is attached to and made a part of this complaint as Exhibit “C” hereof. Thirteenth: The labels on said plastic wrappers of frozen stuffed turkeys approved by the United States Department of Agriculture provide for a statement of the net weight of the contents on said labels. 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SNOILIIVIA ONINOOD MO1104 a3as4anls AdV34¥ s Q344dNLS AQV3Y » a3434dNLS AQV3IY “&, s a334anl ONUAVHI-3%d INOHLIM 1SVOU °° * N3ZOUd 433% “"$331dS GUY “AUIVID "EIGMOd HOMO “LIVE ‘Ou! “CO” to AMENDED ComPLAINT $ : : “S21BONS “OVIEE “BILVR ‘LIWERL -SiNzIGIESe BOSNIDN SUsI3se OF] ® ‘oo Darareste v'S'N 3H1 NI ANYEHOD @ 131aS “20 -ee7 . ° 4O ABVH3OVE le “111 ‘ODVDIHD “3430 “NID me ANYEHOD @ L3IaS A@ C3ineisisia —— age ge “DuISS300Nd ONRING G300V 1T¥S f 40 wie 2s ‘ ; if F i ay : at n z i Pe liege ig Po i Rs 5 st g Si 2 i Bs ae ig stelto1I ! Aik He fiieatlant” fi Par est i feats 3 ty HE ge ga Pesce ney a Bt east ivi He iis Balig dis dill my il i Blais EH ie ga! __ Proof of Service (omitted in printing). [fol. OO] [File endorsement omitted] In THE Untitep States District Court SovuTHErN District or New York 63 Civil No. 3085 [Title omitted] Orper DesigNaTinG THREE J upGE CourT— November 21, 1963 Having been notified by the Honorable Thomas F. Croake, United States District Judge for the Southern District of New York, that an application has been filed in the above matter for relief pursuant to Title 28 United States Code Section 2281, pursuant to Title 28 United States Code Section 2284 I hereby designate the following judges, in addition to the Honorable Thomas F. Croake, to hear and determine said cause as provided by law: Honorable Henry J. Friendly, United States Circuit Judge and Honorable Inzer B. Wyatt, United States District Judge for the Southern District of New York. It Is Hereby Ordered that this order be filed in the above entitled cause in the said District Court. J. Edward Lumbard, Chief Judge, United States Court of Appeals for the Second Circuit. 21 November 1963 42 [fol. PP] [File endorsement omitted] In THE Unitep States District Court SoutHERN District or New York 63 Civil 3085 [Title omitted] Answer—Filed December 5, 1963 The defendant, by his attorney, Louis J. Lefkowitz, At- torney General of the State of New York, answers the amended complaint as follows: ra 22 ¥ First Defense This Court lacks jurisdiction over the subject matter of this action. Second Defense The amended complaint fails to state a claim upon which relief can be granted. Third Defense This Court should abstain from adjudicating any issues respecting the state statutes and regulations and inter- pretation thereof challenged by the amended complaint until their construction and interpretation have been dt-’ termined by the New York State Courts. Plaintiff, Swift & Company, Inc. failed to appeal from a judgment of the Criminal Court. of the City of New York obtained in November, 1962, by the Department of Markets of the City of New York for violation of § 193 of the Agriculture [fol. QQ] and Markets Law nor has either plaintiff re- sorted to other remedies available in the state courts in order to determine the issues raised in the amended com- plaint herein nor has either plaintiff resorted to the reme- dies available to them in the Poultry Products Inspection Act, 21 U.S.C. $451 et seg. 43 Fourth Defense 1. Defendant denies knowledge or information sufficient to form a belief as to the allegations contained in para- graphs “First”, “Second”, “Fifth”, “Sixth”, “Seventh”, “Tenth”, “Twelfth”, “Thirteenth”, “Fourteenth”, “Kight- eenth”, “Nineteenth”, “Twentieth”, “Twenty-First” and “Twenty-Second” of the amended complaint. 2. Defendant denies each and every allegation contained in paragraph “Eleventh”, “Twenty-Third” and “Twenty- Fourth” of the amended complaint. 3. Defendant denics each and every allegation contained in paragraph “Fourth” of the amended complaint except admits as the statute indicates. 4. Defendant denies each and every allegation contained in paragraph “Seventeenth” of the amended complaint ex- cept admits that defendant has interpreted $193 of the Agriculture and Markets Law of the State of New York and Regulation 221.40 promulgated in connection there- with to require that frozen stuffed turkeys selling at retail bear a label separately stating the net weight of the turkey, the net weight of the stuffing and the total net weight of the entire package. {fol RR] Wherefore, defendant demands judgment that the amended complaint herein be dismissed and that he be avrarded costs and disbursements of this action. \ Louis J. Lefkowitz, Attorney General of the State of New York, Attorney for Defendant. Philip Kahaner, Assistant Attorney General, Office & P. O. Address, 80 Centre Street, New York, New York 10013. [fol.SS] Affidavit of Service (omitted in printing). — (fol. TT] [fol. 1] [File endorsement omitted] In THE United States District Court SoutHErN District or New York No. 63 Civ. 3085 Swirt & Co. and Armour & Co., Plaintiffs, vs. Dow J. WickHam, Commissioner of Agriculture & Markets for the State of New York, Defendant. Transcript of Hearing—March 5, 1964 New York 2:00 o’clock p.m. Room 905 ‘Before: Hon. Henry J. Friendly, Circuit Judge, Hon. Thomas F. Croake, District Judge, and Hon. Inzer B. Wyatt, District Judge, Sitting as a statutory court. APPEARANCES: William J. Condon, Esq. and William J. Colavito, Esq., Attorneys for Plaintiff Swift & Co. Evans, Orr, Gourlay & Pacelli, Esqs., Attorneys for Plaintiff Armour & Co., E. Gordon Robbins, Esq., of Counsel. [fol.2] Louis J. Lefkowitz, Esq., Attorney General of the State of New York, Attorney for Defendant State of New York, Philip Kahaner, Esq. and Lester Esterman, Esq., of Counsel. The Clerk: Swift & Co. and Armour & Co. versus Don J. Wickham, Commissioner of Agriculture and Markets for the State of New York. 45 Gentlemen, are you ready? Judge Friendly: Gentlemen, I understand that the plain- tiffs want to adduce some evidence, which I take it is neces- sary since some of the allegations in the complaint are denied. How do you wish to proceed? Who wants to go forward? Mr. Condon: If your Honor please, before we begin, if I may ask your indulgence, I would like to introduce to the Court Mr. E. Gordon Robbins, attorney from the State of Illinois, admitted to practice in the Northern Dis- trict of Illinois, and I ask that he be admitted to practice in this court for the purpose of this case only, representing Armour. Judge Friendly: Yes. CoLLoquy, STIPULATION oF CoUNSEL AND OrFers IN EvipENCE Mr. Condon: Secondly, I might say this, your Honor— [fol.3] this is in response to your earlier question—in order to put on an orderly presentation as quickly as we can, it has been agreed between counsel that I will pre- sent all the evidence on behalf of both plaintiffs and we will put it on as one case, if that is satisfactory to your Honor. Judge Friendly: Yes, it is very satisfactory. Do you want to call a witness, or offer your depositions, or do you want to proceed? Mr. Condon: First, if I may, I am authorized by the Assistant Attorney General to state that it has been stipu- lated between counsel that Swift & Co. is a corporation duly organized and existing under the laws of Illinois and duly qualified to do business in the State of New Yor; that Armour & Co. is a corporation duly organized and existing under the laws of Delaware and is duly qualified to do business in New York. Finally, it is stipulated between counsel that the testi- mony of Mr. Burke of Armour & Co. in his deposition given before trial, referring specifically to page 15A thereof, wherein Mr. Burke testified that-Armour & Co. 46 does not sell stuffed turkeys in any part of the State of New York, is erroneous. {fol.4] It is stipulated the fact is that Armour & Co, does sell in some parts of New York State, as is the case with Swift & Co. Mr. Kahaner: At the present time we are agreed, up to the time that this had been going on, up to the present time they are still selling them, both plaintiffs are still selling stuffed turkeys in certain parts of New York. Mr. Condon: Right. Judge Wyatt: What was the page? Mr. Condon: 15A, your Honor. Judge Friendly: In other words, the answer to “Do you sell these turkeys in any other part aside from New York City” is “No, sir, we do not”—it is stipulated that is sen San Mr. Condon: That is correct. At this time, for the record, your Honor, I would like to offer in evidence the original request for admissions which were served upon the defendant by the plaintiffs. (Plaintiffs’ Exhibit 1 received in evidence.) Judge Friendly: Any objection? Mr. Kahaner: Your Honors, we have complied with the (fol. 5] request as much as possible and we have filed the original. We had three here for each of the members of the Court, which I would like to hand up. Judge Friendly: Very good. The Clerk: Are you offering those? Mr. Kahaner: Yes. Judge Friendly: Are you offering that? Mr. Kahaner: I am offering that in compliance with the notice to admit. . (Defendant’s Exhibit A received in evidence.) Mr, Condon: I call to your attention also at this time— I offer in evidence the deposition of John F. Madden, taken by the plaintiffs, copies of which have already been filed with the Court, I understand. Judge Friendly: Is there any objection? ‘Mr. Kahaner: No objection. Judge Friendly: It will be received. Mr. Kahaner: . We are also producing in evidence copies of an examination before trial of plaintiffs’ witness or witnesses which have already, been filed with the court. Judge Friendly: That is Mr. Burke and Mr. Maidlow? [fol.6] Mr. Kahaner: Yes, sir. Judge Friendly: You want to offer those as your ex- hibits? Mr. Kahaner: I beg your pardon? Judge Friendly: Are you offering those as defendant’s exhibits, or is the plaintiff offering them? Mr. Kahaner: We are offering them as defendant’s ex- hibits. We can wait until our case goes in, then. Judge Friendly: Well, don’t you think that the plain- tiff—we may as well receive them now. Do you have any objection? Mr. Condon: I have no objection to receiving them. Judge Friendly: The clerk will mark Mr. Burke’s ex- amination as Defendant’s Exhibit B and Mr. Maidlow’s as Defendant’s Exhibit C. Mr. Condon: They have already been filed. The orig- inal and three copies have been filed. The Clerk: Yes. Judge Friendly: Then Mr. Madden’s will be Plaintiffs’ Exhibit 2. [fol.7] Judge Wyatt: And Defendant’s Exhibit A are the answers to the requests for admission? Mr. Kahaner: Yes. Judge Wyatt: All right. Mr. Condon: I call Mr. Charles Atkin. 48 Cartes ATKIN, called as a witness by plaintiffs, having been first duly sworn, testified as follows: Direct examination. By Mr. Condon: Q. Mr. Atkin, will you state your position, please? A. I am a superintendent of the turkey plant of Swift & Co. at Detroit Lakes, Minnesota. Mr. Kahaner: A little louder, please. A. Superintendent of the turkey plant for Swift & Co. at Detroit Lakes, Minnesota. Q. Now, in that position, Mr. Atkin, what are your re- sponsibilities? A. The production and operation of the plant. Q. What products do you produce at that plant? A. We dress turkeys and put up stuffed turkeys and also dress a few fowl. Q. Will you describe for us the operation from the be- ginning of your responsibility to the end of it of stuffing [fol. 8] the turkey? A. After the turkeys are bought by buyers, who go out in the country and inspect flocks, then it’s my responsibility to get the trucks out, pick them up and bring them into the plant and dress them. — We bring them in on trucks, weighed—and try to bring those scales into the plant—and defeathered, first hung on shackles running through the plant, defeathered and_ then eviscerated— Mr. Kahaner: Excuse me. I find it difficult to hear the witness. Judge Friendly: Will you talk a little louder, please. The Witness: Yes. A. (Continuing) Brought into the plant, hung on con- veyor chains or shackles, as we call them, go through the dressing operation, which is the defeathering operation; then they go from there through another part of the plant 49 where they are eviscerated and then go from there into slush ice and water in a tank where they are chilled over- ight. spre from there they go to different departments which might be the stuffing department or just the regular turkey department where they are packed in Cryovac bags and [fol. 9] frozen. Q. All right. Now, this— A. It’s roughly the summation of it. Q. What do you mean by “dressing”? A. Dressing—I refer to dressing as defeathering. Q. Defeathering? A. Yes. Q. Do you ever kill these turkeys? A. Yes, we do. That’s part of the dressing operations. They are killed, throats cut, shocked with electric shocker and throats cut and they bleed to death and they are scalded, run through a machine where the defeathering operations take place. Then we have girls working for finishers that get what- ever feathers that the machines don’t get and then the— after coming out of the machines, the tendons are pulled. That’s the first operation we do after the bird is de- feathered. Then they go into the next operation. They are washed again. Then they go through—the girls defeather, finisher’s work, singed. {fol.10] After they get any hair that might be on them off, then they go where the hocks are cut off in the joint and then the next operation would be they would remove the oil sac, slit the necks and then they are hung in three- point suspension, that is, the legs are hung up for hanging by the heads, the necks. While all this is going on, the girls open the abdominal cavity and pull out part of the intestine and washes it so that if it is handled it won’t contaminate the bird. Then it goes to—the intestines are pulled out the right side when they are presented to the U.S.D.A. inspectors 50 for post-mortem examination in which they check the vis. cera, the condition of the bird and general conditions and the birds are either passed or rejected and then they go on to the next operation. We have girls that are called trimmers. Any small de- fects that may be on a bird is removed by the trimmers, The inspectors inspect them, point them out to them. They treat them in this manner and then they go through the giblet cleaners where the hearts and livers and gizzards are [fol. 11] cleaned and then they go next to the machine where you remove the lungs by a vacuum machine, which removes the lungs, and any particles that might be missed by the hand pullers. Then the heads are removed. Then the crops—then we have our own inspector at this: point where the birds are washed inside thoroughly by high pressure injection and then the next operation is our own house inspector which inspects them again to see that they are all cleaned prop- erly inside. Then they go through one other washer and the necks are removed, and then they go to packing, dropped off the line where they are butterballed, we call it, or trussed. Then they go into the tanks for chilling overnight. Q. What do you mean by “trussed”? A. The legs are tucked into the abdominal straps, trussed them up so they don’t protrude. Q. Now, after they have been in the tanks, the crushed ice tanks overnight, the next day they are ready for stuffing, is that correct? A. Well, the birds that are selected for stuffing—we have a man at the end of the line that selects only the birds (fol. 12] that will do because of sizes and conformation, of course; we only stuff certain sizes of birds on orders, as a rule, and whatever size is selected; also for their quality, they are inspected for quality to be sure that we have nothing but the best quality going into the stuffed bird operation. Then they are chilled overnight for the stuffing opera- tions. Q. How do you prepare your stuffing? A. Well, the stuffing is prepared from ingredients that we buy our ingredients of red croutons, Preem, a vegetable shortening manufactured by Swift, and spices, and these ingredients are stored in a freezer where they are chilled down to a low temperature, and then they are brought out into—these two people work on this operation in our plant, a man who makes, runs the mixture. Then we have what we call a spice girl that she mixes the spices and sterilizes them in a steam cabinet, and as he is mixing puts the bread in the mixer and adds the oils, and while he is doing this, she sterilizes the spices and they go from the sterilizer—spice sterilizer into the mixer and {fol.13] they are mixed until they are thoroughly mixed and then they are dropped off into steamless steel vats, the mixer, and put back in the steamer until it is held at least 40 degrees or lower before it is used for stuffing into the bird. And this whole operation is under the control of our quality insurance department who have a bacteriologist and two technicians that supervise the department all the way through. They take samples of all ingredients as they are received into plants and bacteriological samples are run on them and moisture contents because our specifications are no more than ten per cent bread crumbs, and the powder and the other ingredients no more than four per cent. And then they look at them and when they meet specifica- tions, they are approved for use. When the spices are mixed and sterilized, they take periodic samples of that to see there is no bacteria and/no contamination, and they are ready. Q. Now, let’s go back and pick up the turkey again that we selected and it is ready for stuffing. Let’s bring the two things together. Will you describe the stuffing operation from the time the (fol. 14] turkey comes out of that tank? A. Well, at the time the turkey comes out of the tank, there is a U.S.D.A. man at that point, a licensed man work- ing under Mr. Klein, the government employee on the plant, and he grades all the turkeys that goes on to the line so nothing but A-grade turkeys are offered for stuffing and he is also responsible for—to Mr. Klein for sanitation, that everything is in order when the bird is offered to the stuffing department. It is hung on this line. The first thing is it is washed thoroughly with sprayers and then it goes from there to another inspector down the line who looks to see that there is no pinfeathers that might have been overlooked, and then it goes through the washer again and then it—the cavity of the bird is sterilized by pressure for ten seconds and then it goes from there direct and taken out the line and offered to the people who are running the stuffing machines. . We have two stuffing machines, and at this point there is a stuffing injected into the bird by a little logger. Water is also incorporated with the dressing at this time, {fol. 15] moisture, and then the bird from there is taken off the line and passed across the table to a girl who tests it over to see that it’s not overly stuffed. In other words, we stuff the conformation of the bird and no dressing is left, crumbs that get on the outside of the bird. You see, girls who handle the turkeys at all times wear surgical gloves and continuously sterilize and wash their gloves. continuously. After, handling each bird their hands have to be rinsed, dipped in a chlorine solution, and picks up the bird. This is followed closely all down the line. After picking up the bird to see if any crumbs might be on it, styles it, we call it, to see that the conformation is not out of proportion; remove the dressing. Then it’s passed down to the girl who puts it in the bay, and from there passed down to the conveyor where the ‘girl puts the giblets which have been packaged in a foil package down the back of the bird in between the wings. Then it goes to a machine which evacuates the air (fol. 16] through the bag, sets the bird up. 53 Then it goes to our scaler, who weighs the bird. Then it goes to a shrinking tank which the bag is shrunk. Then it goes into our liquid freezer. It takes it about thirty minutes to go through the liquid freezer and it comes out the other end and goes imme- diately into the blast freezer— Judge Wyatt: Mr. Atkin, is there only one department of agriculture for post-mortem inspection? The Witness: No, there is two men working on the line, double line, and one works on the one side of the line and the other on the other. Judge Wyatt: Yes. Each in the same step or process? The Witness: Yes. Judge Wyatt: You told us about that. The Witness: Yes, sir. Judge Wyatt: Now, after that department of agriculture inspection, none of the other steps are inspected? The Witness: Yes, Mr. Klein, under the supervision— {fol.17] Judge Wyatt: No, the Department of Agricul- ture. Mr. Klein is your man. The Witness: No, sir. Judge Wyatt: Oh, he is the Department of— The Witness: The Department of Agriculture em- ployee. Judge Wyatt: Isee. Thank you. The Witness: He has licensed inspectors operating un- der him. . Judge Wyatt: And he is the man who is there at the stuffing operation? The Witness: Yes, sir. Judge Wyatt: And he is from the Department of Agri- culture? The Witness: Yes, sir. Judge Wyatt: All right. Judge Croake: Do you weigh the birds in any way be- fore they go through the stuffing operation? The Witness: Well, I was afraid there would be possi- bilities of the—when moving it across the seule— 54 Judge Croake: Would it be sterilized in the same man- ner as with the other? {fol. 18] The Witness: It would take a number of scales to handle— Judge Croake: I am just talking about the bird just be- fore it goes through the operation of being stuffed and the giblets— The Witness: I don’t know. Judge Friendly: I suppose you are going to try to de- velop that, Mr. Condon. I assume that is what all this is leading up to. Judge Croake: Yes, I won’t ask it then. Judge Friendly: It is interesting to hear this, but I as- sume you are leading up to this, some showing as to whether it would be practical from your point of view to do this, do what Judge Croake has suggested. Mr. Condon: Well, I will develop that a little bit, if your Honor please, but our claim is not so much impracticability as it is government refusal to permit it. Judge Friendly: I will hear about that, too. Mr. Condon: We will get to that, too. IT have a little small problem at this point. I would like the witness to use this in his testimony. It’s a frozen tur- key. May I ask that it be marked for identification? {fol.19] Judge Friendly: I hope we have some means for keeping it frozen; otherwise, we might have to move it out of the courtroom. Mr. Condon: Counsel is concerned, he told me, lest we turn this into a food-poisoning case before we get through. (Plaintiffs’ Exhibit 3 marked for identification.) By Mr. Condon: Q. I show you Plaintiffs’ Exhibit 3 for identification, Mr. Atkin. I ask you, first of all, if that turkey was produced at your plant? A. It was. Q. How can you tell that? A. Government No. P576. That’s us. Q. That’s what? A. Government plant number. 55 Judge Wyatt: Where is that? The Witness: Right here. And then again right here on the clip: P576. Judge Wyatt: That is the Department of Agriculture mark? The Witness: That is the rating stamp and there you [fol. 20] see also a stamp on the Cryovac bag. Judge Wyatt: That is the official designation? The Witness: Yes, sir, U.S. Department of Agriculture. Q. Would you hold that up and tell us where the stuffing is put into that thing? A. First the stuffing is—the stuffing horn, we call it, a tube is inserted in the abdominal cavity at this point and the stuffing is put in there as lightly as we can. We fill the cavity, but don’t cram it. And then as the stuffing—bird is pushed off the machine and pushed off by its own weight, packed and cleaned, and the girl raises the skin with a horn and then pulls it down over and then it’s passed over. The stuffing is put in the bag. O. You referred in your description of this operation to styling the bird, I think you said. A. Yes. Q. What do you mean by that? A. You see, the conformation here is not deformed look- ing. It looks like the conformation of the bird. _ The girl can remove it, or, if it is—send it back if it isn’t - [fol. 21] properly stuffed, so it has a natural look, a stuffed look, but not a great big gob of dressing up in front. Q. I will take it out of your hand so it won’t freeze. A. It’s cold. Judge Croake: I am sure we would let you substitute pictures. Mr. Condon: I would be delighted, if I may. I wasn’t going to offer it in evidence, solely for the reason I didn’t know how to preserve it in evidence. Judge Friendly: You may substitute a photograph; if you think it is necessary. I don’t know whether it is. Mr. Condon: May I have your indulgence to substitute the photograph at a later time, your Honor? Judge Friendly: Yes. 56 By Mr. Condon: Q. All right, Mr. Atkin. Will you now tell us—I think it is clear to all of us how this operation was done—will you now tell us what would be involved if you were to mark separately on this product the weight of the turkey and the weigut of the stuffing? [fol. 22] A. Wecouldn’t do it because it’s— Mr. Kahaner: I object to that, your Honor. I don’t know what he means by “involved.” Mr. Condon: I will rephrase it. Mr. Kahaner: Is the witness going to testify— Judge Friendly: He is rephrasing it. Mr. Condon: I will rephrase the question. Q. What changes would be entailed in your operation in order to permit you to mark the separate weight of the turkey and the stuffing and the whole of this stuffed turkey product? A. The first thing, we couldn’t because the Department of Agriculture won’t give us approval. Mr. Kahaner: I object and move to strike out the an- swer. Judge Friendly: Yes, the answer may be stricken. In answering the question, limit yourself for the time being to the physical operation. Mr. Condon will develop the other point later, I am sure. The Witness: Yes. A. Well, it would involve three—at least for us at our plant, it would involve about four scalers-— [fol. 23] Q. No, I am not concerned now with the people or the cost, or anything. I want to know what would you have to do. A. We’d have to weigh the bird at least three times in order to do that, accomplish that. Q. Where in the operation would you have to weigh the bird three times? A. We would have to weigh it—before it was stuffed, we'd have to weigh it again after it was stuffed, and then we would have to weigh the gibiets and make a computa- 57 tion to add that on to the bird, which would be—and then add the weight of the stuffing, giblets and dressing to come up with the total weight of the bird. Judge Friendly: You have to have four—four weighing operations—three of the bird and one of the giblets. Is that right? The Witness: One of the bird before it is stuffed and one after it is stuffed; then the weight of the giblets; then the total weight would be a computation. Judge Friendly: It would be a computation? The Witness: Of the three. [fol. 24] Judge Friendly: The second and the third— The Witness: Either way. As I say, it would be either way you arrive at the same— Judge Wyatt: Well, how do you do it now? The Witness: We make one weighing. We weigh the bird after it is bagged with the giblets and dressing. Judge Wyatt: Now, in order to show the weight before stuffing, why wouldn’t you have to weigh it only once, that is, once before you put the stuffing in and weigh it at the end of the operation, two weighs? Judge Croake: And then subtract it. The Witness: Well, I would have to know the weight of the giblets because the giblets don’t always weigh the same and they still have to be weighed and taken off, added either to the weight of the bird after it is stuffed because they are separately packaged, and there wouldn’t be any way that I know of at our operation to handle it until you get the bird in the bag. Judge Wyatt: Mr. Condon, am I correct in supposing that what New York wants you to show is the total weight and separately the net weight of the turkey? {fol. 25] Mr. Condon: Yes. Well, there is a litle con- fusion about that, but I think that is correct. I would prefer the attorney general tell you exactly what New York requires. It is either that, the weight of the turkey and the whole, or the weight of the turkey,. the stuffing and the whole. _ Judge Wyatt: I am just not able to see why Mr. Atkin, by adding one thing to what he does, can not come out with the answer. 58 Mr. Condon: Mr. Atkin’s point is that the giblets are properly part of the turkey, but they are not with the tur- key prior to stuffing. They are not put into this package until after the turkey is put in the bag. By Mr. Condon: Q. It might be well, Mr. Atkin, if you would take Plain- tiffs’ Exhibit 3 for identification and show the Court where those giblets are placed in that package. A. The giblets are included in a foil bag right here on the outside of the turkey, this exhibit. Judge Wyatt: It is under the outside wrapping? [fol. 26] The Witness: Yes, and it is on top—between the bird—laying on the top, at that point. Judge Friendly: The weight of those varies? The Witness: Yes, sir, they do vary. By Mr. Condon: Q. Mr. Atkin, do you run, in the course of your produc- tion of stuffed turkeys, do you run any tests on the amount of stuffing that is being put in turkeys? A. Yes, our quality insurance man tries to follow it, does follow it and makes tests every—each horn, each hour, two tests an hour, for percentage of dressing going into the bird, and he does that by—at random. In other words, he doesn’t have it set up, comes to a certain time to take it because after all we want a fair operation. He steps in sometime during the hour, or one of his tech- nicians, takes the bird after it has been on the line and ready to go, just before it is sealed, takes it to the labora- tory and removes the dressing and figures the percentage of dressing in that bird. [fol. 27] Q. And do those tests indicate that the same size turkey will always take the same kind of stuffing? A. They won’t; it varies. Mr. Kahaner: I object, your Honor. This seems to be hearsay evidence. He is trying to tell us what somebody else does. 59 Judge Friendly: I take it the witness is familiar with this. Have you seen this operation? The Witness: Oh, yes, I am superintendent and I do follow the quality insurance man in the plant. Judge Friendly: Overruled. You may answer. Q. You may answer. Do you remember the question? A. Well— Mr. Condon: Would you read it back to him, please. (Question read.) Q. The same amount of stuffing, I believe is the question. A. No, the tests indicate there is quite a variance in the amount of stuffing that goes into a bird, whether it be small turkeys, which take a higher percentage as a rule, or whether it be a hen turkey—a tom turkey. [fol. 28] There is quite a variance. Just like the confor- mation of people varies, there is a variation. Q. You referred to this area, but let’s go back to it. More specifically, will you tell me what the activities of the United States Department of Agriculture inspectors are in your plant? What do they do? A. Well, the first inspection in May whicli I didn’t—on the part of the previous—they do inspect, take a look at the birds, the live birds that’s in the trucks, an ante-mor- tem inspection, to the extent if the bird don’t look healthy they could be turned down and not used and as they look at it, the post-mortem inspection, where they examine the viscera of the bird, outside, inside, for disease or bruises or contamination, and they also run sanitary inspections. Every morning one of them is there about a half an hour to an hour ahead of our operations on the sanitariness of the plant, looking at all phases of the machinery, the clean- ing up, and then they follow the Cryovac bagging opera- tion and stuffing operation. [fol.29] He goes in there, makes his inspection in there. I don’t know if he goes there several times during the day. He doesn’t have any set time to go in. Of course, the boys would be ready for him, but he makes drops unexpectedly into the stuffing room himself and Mr. Klein—he works as 60 close with his inspector or grader at the end of the line and he is in there quite often looking the operation over, and with the one man they could do this. The way it is now, they can make this inspection that way, and then they also—they check weighing. I don’t know what the percentage is, but every hour or two they make check weighs of all of our birds as they come off the Cryovac line. Q. How many Federal inspectors are there in your plant at Detroit Lakes? A. There is three full-time, three men there all the time, and then there is two off-the-premises men—Dr. Noland and Dr. Westlake—who drop in twice of a morning as a rule and twice in the afternoon, and they:are the veterinar- ians in charge. Dr. Westlake is the inspector in charge, and Dr. Noland is his partner. Q. Now, are there inspectors in your plant at all times [fol. 30] when you are operating? A. There is. Q. Well, now, suppose you are ready to open in the morn- ing and the inspectors haven’t arrived? A. We don’t start. Q. You never operate when there are no inspectors in the plant? A. No, sir. Q. How many turkeys, Mr. Atkin, of all kinds do you process in your plant in a year, pounds, if you can give it to me? A. In excess of 18 million pounds last year—I would say about 18,700,000 is about the best I can remember. It may be off a little bit, but in that neighborhood. Q. Do you know how many pounds of stuffed turkeys you processed last year? A. It would be a round figure. I could estimate. About a million pounds. Judge Wyatt: You said 18 million pounds total. The Witness: Total. Judge Wyatt: And of the 18 million, one million is stuffed turkey? The Witness: That’s right. {fol. 31] Mr. Condon: I have no further questions. Judge Friendly: Cross-examination. Cross examination. By Mr. Kahaner: Q. Mr. Atkin, will you tell us when the turkeys are brought to the plant of Swift, are they brought in coops, brought alive, is that it? A. Our turkeys are brought in in trucks that are caged trucks. They are built especially for hauling live turkeys. . Lsee. : There are layers, they are caged. Q. And are they all of different weights? A. The trucks? Q. No, the turkeys when you buy them. A. Yes, they are of different weights. Q. And then when you slaughter the turkeys, at that time when they are brought in the inspectors are there from the Department of Agriculture to examine the birds . to see if they are healthy, free from disease, is that it? A. Yes. Q. That’s very important. And if they find any that are not so, they will discard them? A. They will throw them back. {fol.32] Q. And then the turkeys are slaughtered there- after, is that it, at one time? A. I don’t get your question. Are you asking about ‘the ante-mortem inspection? Q. Well, I am saying that these turkeys, when they come into your plant on trucks, or how they come in, they are examined by these— A. Live, yes. Q. Live. ' A. Yes, he looks at them and if they are healthy in ap- pearance he lets us process them. Q. In other words, a superficial examination? A. That’s right. Q. To see they don’t look sick? 62 A. Yes. Q. And then when that happens, if there are any sick, they will take them out of there, is that it, out of the— A. Well, it never happened at our plant in Detroit Lakes. We haven’t had live ones turned down, but I know it has happened. Q. Not at your plant, but other plants? A. I know it has happened in other plants I have been working at, but not at Detroit Lakes because we have very [fol. 33] close inspection on our buying. Q. Are the turkeys bought from farmers in the vicinity? Is that how it works? A. Yes. Q. Then wher you get the O.K. from the inspector, these turkeys are processed, killed and plucked? A. Right. Q. And during that process there are inspectors there, too, is that right? A. Yes, sir. Q. To see that after they are killed the turkeys are siill healthy; in other words, they are opened up, the gizzards are examined? A. Yes, post-mortem examination. Q. Nobody is interested particularly in weight when the turkeys come in alive, or anything like that, neither you nor the inspectors, is that it? A. Yes, I am interested in weight. Q. Do you weigh the turkeys when they are brought in alive? A. Yes, they are weighed at the city scales. Q. Each one? A. Each truck of turkeys. Q. Iam talking about the individual. [fol. 34] A. The individual, no. Q. You are not interested in the weight of any particular turkey and neither is the U. S. Government inspector? A. That’s right. _ Q. They are interested in healthy turkeys. And then— Judge Croake: The answer is yes? The Witness: Yes, they are interested in healthy turkeys. 63 Q. And after they are slaughtered, the inspectors are still interested in seeing that those turkeys are healthy? A. Right. Q. And they go through minute investigation, make sure that there are no sick turkeys there and, as a matter of fact, the whole poultry inspection act is based on whole- someness of the turkey, is that it? Mr. Condon: I object, your Honor. This witness isn’t qualified to testify about that. . Judge Friendly: I think you can ask as to what the in- spectors do. I don’t think the witness can tell us what the philosophy is. Q. Well, the inspectors, anyway, are administering this [fol. 35] poultry inspection, aren’t they? A. Yes. Q. They operate the federal poultry inspection and all they are interested in is wholesomeness from the time the turkeys come to the plant alive and at the time the turkeys are slaughtered and processed ? Mr. Condon: I object to that, your Honor. I don’t think he is qualified to say what someone else did. Judge Friendly: He can tell what they do. He doesn’t have to know waat is in their minds. Q. Well, do you see how they look at the turkeys after they are killed? A. Yes, sir. . Q. And they look in the turkey, they look in the gizzards and every part of the turkey to see that the turkey is free of some disease, is that right? A. That’s correct. Q. And if they find any turkey that is suspicious, that turkey is discarded, is that right? A. Correct. Judge Wyatt: But I think the witness told us, if I am not mistaken, that they check the net weights at some point. [fol. 36] The Witness: They do. The finished product. ‘Mr. Kahaner: They do that at the end of the process. Judge Wyatt: Yes. 64 Mr. Kahaner: I am going now to the beginning of the process. Q. Do you at the time that the turkeys are processed, do you weigh the individual turkeys? A. When we are selecting birds for stuffing, we weigh, or have a competent man with a scale collecting birds of that particular size we need as near as possible, but you can't get it exact, that’s for sure. Q. Well, what kind of a leeway do you permit; in other words, you are looking, say, for five turkeys, approxi- mately five, or eight, or seven, is that what it is, about on the same poundage? A. Well, in the neighborhood, yes. Q. And you are attempting to get these turkeys of al- most a similar weight, give or take a few ounces, is that it? A. No, give or take a couple of pounds. Q. I see. Judge Friendly: How does he do that: by visual inspee- [fol. 37] tion, or by putting them on a scale? The Witness: Well, most of the time a man weighs a bird or two, it’s a man used to handling it, and he will weigh a bird or two to see how he is judging and then he goes on from there, just for judgment, because it’s not sold, it’s just merely for sorting. Q. In other words, he uses the weight to check up on him- self, is that it? A. Yes, to see that he is sorting them out right. Judge Wyatt: He doesn’t weigh each bird? The Witness: No, sir. Q. You mean, he might not know the difference between a five-pound, or seven-pound bird, something like that, is that it; he wants to make sure? A. Yes, he wants to be sure he is within the range. Q. Are you picking these birds for stuffing in the groups that weigh a certain weight, is that it? A. What do you mean? Q. When you pick these birds, when your man is there picking up the birds— A. You mean, sorting the birds? Q. Sorting the birds, you pick them for weight? [fol.38] A. Yes, as near as possible for a certain size, within about a two-pound range, give or take. Q. What does he do: take a five-pound bird and put it aside in one batch and an eight-pound bird in another batch? A. No, they just go into the same batch because he can’t sort them that way. He sorts within a two-pound range, tries to sort them within a given range, within about a two-pound range. Q. These birds, after they are slaughtered, do they come to him on some sort of assembly line? A. Yes, on a chain conveyor. Q. I beg your pardon? A. Ona chain conveyor. Q. I see. And he picks these birds from this conveyor and— A. No. Q. What does he do? A. They are dropped on a table where they are dressed and he is there and sorts out the bird he wants, as near as possible, so we won’t have any undergrade going for re- handling at the stuffing line that the grader would have to rehandle there. That’s another thing he does at that point, more or less [fol. 39] sorting, just a sorting operation, size. Q. Does he sort the turkeys from this conveyor just weighing a certain poundage, or does he take all the birds off the conveyor? A. No, he doesn’t take all the birds on the conveyor. He —just depending on what size we want to take. If we want to put up a six to ten-pound bird that day on stuffing, that’s about the range it runs, two pounds either way—in other words, a six-pound bird, six to ten—eight pounds to six and eight to ten—takes them within that range, approximately. There will be some over, some under. Q. And if the bird comes down weighing twelve or four- teen pounds, somebody else gets that? A. That’s right. 66 Q. He is just taking the birds away between six and tea pounds? A. Ata given size we want that day. Q.. Now, these birds are laying on a table, is. that right? A. Yes, conveyors—conveyor table. Q. Conveyor tablet A. Right. {fol.40] Q. They are not frozen, or it still—what are the conditions in the plant? Is it air-conditioned, the plant? Is that a freezer type of operation that he is working in, or is this an ordinary type operation? A. Well, it’s a room, just an ordinary room under—the air is not air-conditioned; don’t happen to need an air-con- ditioned room. Our plant is cool enough. But there is posi- tive pressure on the room from filtered air brought in that is required by the Department of Agriculture. Q. I see. So there is nothing special about this room to keep the birds at a certain temperature, it’s an ordinary temperature, is that it? A. No, we move them along as fast as possible to get them chilled quick. Q. How long after your man takes them off the con- veyor—he takes his six to ten-pound birds, eight pounds, he takes them off the conveyor, is that right? A. Off the conveyor onto a table. Q. Onto the table? A. Yes. Q. How long will they stay at the table? A. Oh, I would say they’re coming off at the rate of {fol. 41] about thirty a minute. Q. And then what happens after he takes his birds off on his table? What happens to those birds? A. The birds come off the conveyor table directly into ice slush for chilling. Q. And this is a slush of— A. Ice and water. | Q. And how long do they— Judge Wyatt: Wait—excuse me—the birds he selects for stuffing, they 4n’t go at that point? The Witness: Yes, they go right into slush ice. 67 Judge Wyatt: What happens to the birds he doesn’t select for stuffing? The Witness: They go into another vat the other people are working at for regular production. They go into slush icewater. Judge Wyatt: Isee. But they are different vats? The Witness: Yes. Judge Wyatt: All right. By Mr. Kahaner: Q. How long do they stay in this iced water? [fol.42] A. Overnight as a rule. Q. And these birds get waterlogged, don’t they? A. No. Q. They don’t? A. No. Q. There is no absorption of water? A. There is tolerances prescribed by the Department of Agriculture. They run tests on that daily to see that there is not an excess amount of water. Q. How much water does the turkey pick up after being there all day and all night? A. Sir, I couldn’t tell you, I don’t know. Q. You don’t have any test on it? A. No, the Department of Agriculture runs them and tells them the tolerances. Q. That turkey will weigh much more than if it hadn’t been laying in icewater all day and all night, wouldn’t it? A. There is an absorption, but it’s a percentage. I couldn’t tell you exactly. Q. How much, ten per cent? A. No, it would be under that because there are toler- ances. [fol.43] Q. You say you know it is under ten, but you don’t know for sure. Could it be more than ten? A. No. Their tolerance is— Q. What? A. They have— Q. What is their tolerance, if you do know or don’t know? 68 A. I don’t know. You will have—the Department of Agriculture man can give you that information. I don’t recall the exact— Q. You are not interested i in knowing that? A. Yes, sir, I am interested in knowing, but I don’t recall] what it is at the present time. Q. Well, then, after this bird with its accretion by water —it has some extra water in its system now, the body, the meat has absorbed water after being waterlogged all day and night, is that it, it has some percentage of extra weight? A. Yes, it has some percentage of extra weight. Q. What happens after that? A. After what? Q. Well, after it lays there all day and all night in water, what happens to the turkey after that? A. Well, it’s graded. [fol. 44] Q. It’s what? A. The grader works—when it goes to the stuffing depart- ment, the government grader checks it for grade. Nothing but A-grade stuff goes to the stuffing department. And it is hung on a line for draining. The neck skin is squeezed out for water. Then it’s washed. ; Q. You said it’s graded into what, different—A, B and C, according to the type of bird? ‘A. Yes, but nothing but the A-bird goes to the stuffing department. The rest of the stuff goes back to the other operation where it will be packed as under-grade. Q. In other words, for stuffing purposes, you use the best type of birds, is that Tight? A. The best we can get. Q. And then it’s put on an assembly line again ready for stuffing, is that right? A. Yes. Q. And is anything done between that veiled and the _ time that the turkey is stuffed? A. What do you mean “is there anything done”? Q. Well, you said something about somebody squeezes water out of it? [fol. 45] A. Well, it’s hung on and when a man hangs— the grader, or his men working with him—they generally 69 pull on the neck skin, which has been removed. They pull on the neck skin which permits draining and the bird is drained. Oh, the drain line, I imagine— Q. I don’t want what you are imagining. What do you know about the process of getting the water out of the bird after it has laid there the whole day and night? What do you know personally that they do to drain this— A. The drain— Q. What? A. We drain it on a line. We call it a draining line. Q. What do you do, bring it along the line and a few drops drip down, is that it? A. They hang down and the bird—the hanger hangs it on, straightens out the neck skin, squeezes it, sees that it’s open, the cavity of the bird, goes down this line, this drain- ing, oh, I would say about six or eight minutes. Then it’s washed, and in the meantime, while it’s on the line, a girl checks it to see that there is no pin feathers or [fol. 46] anything like that, that has been overlooked. Then it’s washed. Then it’s steamed, the body cavity sterilized, we call it. And then it— Q. In other words, for this six or eight minutes it’s go- ing along a conveyor? A. That’s right. Q. And whatever water drips out, drips out, is that it? A. That’s right. | Q. And there is no special effort made by any machinery to press, do anything to get any additional water out, is that it? Whatever drops down— A. It drains out. Q. —out on the conveyor belt, is out? A. Yes. Q. When it gets to this girl who does the stuffing—you say girls do the stuffing? A. Yes Q. How do they stuff the bird? A. We have—the first girl—it’s taken off the line, passed to the girl, to the stuffers. These girls are all wearing surgical gloves. 70 Q. Yes, I grant you that. [fol.47] A. These machines are little hoppers and: the girl feeds it with a stainless steel scoop, feeds the stuffing into this little hopper, and then it’s augered into the bird, and while it’s being augered in, it automatically injects the percentage of water into the stuffing that’s required. Q. So that when the bird is ready for stuffing and comes right to this girl who has the actual job of stuffing the poultry, she doesn’t know what this bird weighs, is that right? A. No, she doesn’t know what it weighs, no. Q. All she has got is a cavity in front of her to be filled? A. Yes, sir. Q. Is that it? A. Yes. Q. And this stuffing is available to her. Wat does she do, take it with her gloves and stuff the bird with it? A. Oh, it’s on a machine, it’s scooped into the hopper of the machine and it’s augered into the cavity of the other birds by machinery. Q. Is this something like a gun? A. No. {fol. 48] Q. Is it shot into the bird? - A. No, no. Q. How is this thing—how is this stuffing put into the bird? I mean, is it a gentle tap, or does it go in with force? How is it done? A. Well, our stuffing machine is a little auger and a little stainless steel pipe about two inches around— Q. In circumference? A. Circumference, and this water is injected, this auger —the bird is stuck on this auger, back into the bird. The girl steps on the switch which activates the machine, opens the valve that lets the water into the dressing, and then just grabs it—the weight of the bird is holding it on— and pushes it off ar. she turns it into the body, the crop cavity the same way, and that’s it. Q. You mean she has got dry stuffing which is sup- posedly mixed with a certain amount of water before being stuffed, is that it? 71 A. The dry stuffing is mixed with water as it goes into the auger. The auger mixes the water in it as it is augered into the bird. [fol.49] Q. How much water or how much stuffing goes into this particular bird when the girl doesn’t have the weight of the bird? A. They stuff to appearance. Q. What’s that? A. Just stuff to appearance. We don’t know how much 1s— Q. You stuff it, is that what you mean, as much as it will take? A. To appearance, no. Q. Whose appearance governs: yours or the inspector’s? Who is supposed to— A. Quality insurance man. We have a quality insurance. Q. You have a quality insurance man? A. Yes, sir. Q. And he is your employee? A. Yes, sir, he is Swift & Co.’s employee. He doesn’t work for me. Q. You work for Swift & Co.? A. Yes, sir, but under a different division. Q. I see. And this man would naturally like to see as much stuffing in a bird as would be possible, wouldn’t he? [fol.50] A. I don’t think so. Q. He doesn’t want less stuffing than the bird would ordinarily take? — A. I don’t know what he wants, but he wants the bird to look nice. Q. Nice, round, fat, look more than it actually is, is that right? A. No, as natural in appearance as possible. Q. He wants to improve on the bird’s natural appear- ance? A. No. Judge Friendly: I think we have the point, Mr. Kahaner. Q. So actually the bird will take as much stuffing as the girl wants to give it? A. The what? 72 Q. The bird will take as much as the girl, this girl who is applying this stv‘fing into the bird, wants to give it? Can she stop it any way, or is it automatic? A. It’s grabbed—the way the bird is, she holds the bird lightly on here and it’s pushed off and whenever it’s filled, she stops. Q. How does she know when it’s filled? A. Shuts off the end of the stuffing. [fol.51] Q. Automatic? A. Yes, holds it lightly and sets it like that. Q. In other words, it is governed by the machine itself, if you want more stuffing in the bird— A. No. Q. —you would adjust the machine to put it in; if you want less, you would adjust it for less? A. No, the girl is the operator. The girl is a trained operator. She puts the birds on the stuffing horn, holds it lightly, and as the machine pushes it off, she holds it lightly and it comes off, lifts off the turkey. Q. How do you know she holds it lightly? A. In other words— Q. What’s that? A. If she would hold it up tight, she would pack it. We don’t want our stuffing packed in the bird. Q. Oh, there is a possibility of packing the bird with stuffing if she holds it tight? A. Yes. Q. So it depends on the girl, whether she holds it light or tight, as to how much stuffing that bird gets? A. Yes. [fol.52] Q. Are you interested in seeing that the bird is fully stuffed? A. Yes, to a nice appearance and looks nice and plenty of stuffing, but not too much. Q. I see. What—how much stuffing would go into a five- pound bird? A. Oh, you could go around 16 to 21 per cent of the weight. 21 per cent average, I imagine, for that size bird. Q. About a little over a pound of stuffing will go into a five-pound bird, is that it? A. 21 per cent of the body weight, yes. 73 Q. And is that machine regulated so that a five-pound bird will take a little over a pound of stuffing? A. No, the girls—the operators are trained. They are the ones that regulate the stuffing. Q. So, in other words, you have to leave it to the girls to determine that? A. They and the quality insurance man, who takes a sample every fifteen minutes, to see how they’re coming along on the amount of stuffing and moisture analysis. Q. After the bird has been stuffed, he takes it off the [fol. 53] assembly line and brings it to his office? A. Takes it into a laboratory. Q. Why doesn’t he take it in to weigh the stuffing, if you say that is all he is interested in? A. What? Q. Is he interested in the quality or the weight of the stuffing? A. He is interested in the quality of the stuffing, bac- teriological condition of the stuffing, and the weight of the stuffing in the bird and the moisture in the stuffing. Q. So he has got to do all that: the quality, the bacteria? A. Yes. Q. Has he a scale? A. Yes. Q. Did you ever see him do that? A. Yes. Q. When was the last time you saw him do that? A. I think we operated last in—well, this fall. I don’t know the last time we operated, but I think it was in Janu- ary we operated, I believe, the last time. Q. That is the last time you saw him do that? [fol. 53a] Well, it’s just an additiona] risk. There is a risk all the time in handling food and packages. Q. With the one weighing, how many birds are rejected because’ of deterioration? I am talking about before stuff- ing, in that haif hour. A. None that I know of. Q. None? — A. No,. there is bacteriological tests made by swabbing 82 the cavity of the birds. To date, this past season we have had no rejections at that point. Q. There are no rejections after the birds are out in the open for 30 minutes, you haven’t had one rejection for how many—say, within the last year? A. Last year we didn’t, no. Judge Croake: Mr. Kahaner, when the weight is indi- (fol. 69] cated on the specific bird, the individual bird, how is it put on after this scaler weighs it? Mr. Kahaner: All right. Q. Prior to the bird being frozen, you say it’s put in this bag and then weighed with the giblets and the stuffing? A. Yes. Judge Friendly: And the bag on it? The Witness: The bag on it, and sealed. Q. Sealed and with the stuffing and the giblets and every- thing, weighed, and actually comes out— A. Yes, that process goes through the shrink tank and the bag does shrink and then it’s frozen. Q. Who puts the weight on this? A. The scaler. Q. As the bird is weighed, has this scaler got a crayon or ink that marks the bird? A. Indelible— Q. Beg your pardon? A. They use an approved ink pencil or pen to write the weight of the bird on the bird. Judge Wyatt: On the flesh of the bird, you mean? The Witness: On the bag. [fol. 70] Judge Friendly: How does he allow for the weight of the bag? oe The Witness: The scale is set for an ounce and a half, we set it for an ounce and a half tare weight. Judge Wyatt: He writes on the plastic surface? The Witness: Yes, sir, there is a spot on there. Q. In other words, if there is a larger turkey, then the bag is more than an ounce and a half, is that it? A. Yes, it depends on the size of the turkey. 83 Q. In other words, he does this subtraction as soon as he weighs the bird? A. He does it, takes it off, the weight of the bird because, well, say, a 6-pound or 8-pound bird takes an 11 by 18 size bag, we call it, and you get one over 10 pounds, it would take a 12 by 19 size bag, and people are familiar with the size of these bags, they allow different tare weights for it. Q. In other words, he is familiar with it, he knows just how to figure it, he ‘deducts from the amount? A. Seale that much short—I mean, as ean: as that’s con- {fol. 71] cerned— Q. He puts that right onto the bag in whatever, water- proof crayon, or something? _A. Waterproof ink, pencil or crayon, screws— Q. Then what happens? How does it get onto the pack- age itself? Is this the way, this bird here that’s marked for identification— Judge Croake: Hold it up, will you please. — Mr. Kahaner: This is marked here Plaintiffs’ Exhibit 3 for identification, marked 7 pounds 2 ounces in blue ink. The Witness: That’s right. Q. Is that what the final weighing— A. That’s right. Q. That’s put right on that way? Judge Wyatt: Let’s take a look at it. I can’t see it. Where is the 7? Mr. Kahaner: There it is, 7 and 2. Judge Wyatt: And this is labeled, Mr. Atkin, on the outside? It looks as if it is written directly on the label. The Witness: Written on the label, written right on the CRYOVAC bag. ‘Judge Wyatt: There is a place there? [fol. 72]: The Witness: Yes, sir. Judge Wyatt: Is specially prepared? The Witness: Yes, sir. Q. After that weight is put on, the bird is acai A. The bag is shrunk, goes through the shrink tank and goes into the liquid freeze and frozen. 84 Q. And that’s the weight that stays on until the bird is sold? A. Yes, until sold. Judge Wyatt: Sold at retail? Mr. Kahaner: Sold at retail. Q. Do you know whether Swift has many retail stores in New York? A. To my knowledge, Swift has no retail stores. Q. They sell these birds to wholesalers, is that it? A. What do you mean? Q. I mean, when these birds—who buys these birds from Swift? A. Well, the chain stores and people like that. They are shipped to our sales unit like Mr. Maidlow here and he sells them out to some others, to retailers. I don’t know to whom they are sold. [fol. 73] Q. And you usually do stuff these birds at par- ticular times of the year? A. Yes. Q. Do you have a heavy demand, is that it? A. Yes. Q. Around Thanksgiving and Christmas? A. Before the Thanksgiving— Q. Before? | A. Yes, I would say along in October when the stuffing operation takes place. Q. You are not doing any stuffing at the moment, are you? A. No, sir, we are not. Q. No demand for it? A. No, sir. Q. Actually it’s a holiday bird, is that it? A. It seems to be more demand at that time of the year. Q. You sell turkeys all through the year, you sell 18 million pounds of turkey a year, don’t you? A. I have nothing to do with the sales. Iam merely in the processing end of the business. Q. You did say that there is 18 million pounds sold? [fol. 74] A. Processed. _Q. There is one million pounds of stuffing? A. Approximately. Q. Actually most of the turkey that you do sell is un- stuffed? A. That’s right. Q. And that’s sold all during the year? A. Yes. Q. While one million pounds is concentrated on a holi- day, is that it, on a specific— A. No, it’s sold the year round. Q. You don’t process them all year round, is that it? A. If the stocks would get low, we would be asked to start up the stuffing operation. It has happened. Judge Friendly: Are you going to have much more, Mr. Kahaner? I think the reporter would like a recess. Q. I just wanted to know, Mr. Atkin, are you familiar with the process of the shipping, how it’s shipped into New York, or any other state? A. Yes, we ship in refrigerated cars or trucks. There is refrigerated rail cars or trucks that will carry zero or lower temperatures. ° [fol.75] Q. And how are these turkeys packed after they are taken out of the freezer? Are they put in‘a shipping box or container? A. They come out of our liquid freezer, they are packed in cardboard cases that have holes in the sides of them and they are packed with the lids off, slats between each layer, and put into our freezers 18 to 24 hours before they are moved out. Then they are moved out into the storage department, into a storage house where it’s 10 below or better until they are ready to be shipped. Q. And these turkeys, stuffed turkeys, are shipped to your different sales agents with or without an order, is that it? A. With what? ' Q. With or without an order; in other words, do you-ship them the birds and te:! them to sell them? A. I don’t ship—I only ship on orders. Everything that goes out of our plant has to go out on an order and what 86 this manager has in the way of sales, I don’t know, I am not familiar with that. Q. Whatever the manager tells you to ship, you ship? A. That’s right. [fol. 76] Q. And it’s his headache to sell it, is that right? A. I would think it would be sold before he ships it. [ don’t know whether he sells on consignment or not. It’s not my business, that part of it. Q. Well, has he got a place to store these turkeys when they come in to New York? A. I don’t know. Mr. Maidlow was the New York poultry man. I don’t know. We ship them to storage houses— Q. You are not familiar with what happens to the stuffed turkeys after they leave your plant? A. No, sir, I don’t know what happens to them. Mr. Kahaner: All right, that is all. Judge Friendly: We will take a five-minute recess. (Recess. ) Judge Friendly: Gentlemen, we have been discussing our schedule a little bit. When we had this case set for this afternoon, I don’t think we realized we were going to be involved in so much evidence. Some of us have commitments for the next couple of days that will get in our way, in the way of pro- ceeding continuously, and it seems the best thing to do is, after we adjourn this afternoon, to adjourn to Tuesday [fol. 77] morning and then hope we can finish it later on Tuesday, or at the latest on Wednesday. So let’s finish with Mr. Atkin. I gather there is another out-of-town witness from Armour. Mr. Condon: Maybe we can get through with him this afternoon. We will do the best we can. Judge Friendly: Fine. Do you have anything further? Do you have any further questions? Mr. Kahaner: Yes, I just have one question—one or two of Mr. Atkin. 87 By Mr. Kahaner: Q. Mr. Atkin, I believe in reply to Judge Croake as to how many weighings would be necessary to comply with New York State law, you said you had to have a separate weighing for the bird before it was stuffed. Did you say three weighings would be required? A. There would be three weighings, I would think that would have to be made, yes. I don’t know how we could do it otherwise. _Q. Do you know what the New York State law requires? [fol. 78] A. No. Q. In other words, if the New York State law says they want the net weight of the turkey, which is the turkey it- self, and the total net weight of the bird, including the giblets and the stuffing, how many weighings would be necessary ? A. What is it now? Q. If the New York— _. Judge Croake: Let him read the question. (Question read.) A. Well, we’d have to weigh the bir.—the way I take it —we’d have to weigh the bird before it’s stuffed and then to determine how much dressing there is, we’d have— Q. Wait a minute now. The law says that the net weight of the turkey and the total net weight, that’s all it says, which means that the total—after you set forth the net weight of the turkey, you can put the total net weight of the bird, which includes the stuffing and the giblets. How many weighings would be necessary? A. Well, two weighings that way, on that basis, under- standing on that basis. Judge Wyatt: One other than the weighing that Mr. [fol. 79] Atkin talked about. Mr. Kahaner: That’s right. Q. You don’t need three weighings, just two, an extra weighing, it would be an extra process, is that it? There would be one extra weighing? A. To determine— 88 Q. To determine the weight of the bird prior to the stuffing, you would have to weigh it once? A. Yes. Q. And then you do the same thing as you do later? A. That’s right. Q. So, in other words, that would be three birds in a min. ute would be the extra time involved, is that it? A. Yes. Mr. Kahaner: Thank you. Judge Wyatt: The last answer of the witness was “Yes.” Redirect examination. By Mr. Condon: Q. Mr. Atkin, are the giblets part of the turkey? A. Yes. Q. Part of the net weight of the turkey? A. Yes. Q. Irrespective of what any law requires, if you want [fol. 80] to show the net weight of a turkey on a stuffed turkey package, how many times do you have to weigh it? Mr. Kahaner: I object to that, if your Honor please. I don’t know whether it is material. We are talking about a New York State law. Judge Friendly: Nobody knows what the law means. Mr. Kahaner: Before anything is discussed, I would like counsel to be specific. We are discussing— Mr. Condon: I am not going to ask the witness about the New York State law. He is not a New York lawyer. He is a turkey processor. Judge Friendly: Whether the New York State law in- volves the net weight of meat, poultry or fish to be sold or offered for sale as food at retail by net weight only, now, if that means net weight of the bird ex giblets, you need only two weighings; if it means only three weighings of the bird ex giblets, you need three weighings. Isn’t it as simple as that? Mr. Kahaner: Yes, your Honor, but they have an inter- pretation. Defendant’s interpretation of that section and his interpretation is two weighings. 89 [fol.81] Judge Friendly: Well— Mr. Kahaner: That’s all we are interested in, is what New York State requires. Mr. Condon: This is the first time that I heard that New York State requires that the giblets not be included in the weight of the turkey. This is new to me. Judge Friendly: Until we know what New York State requires, I think we better just let the witness state the facts and later on we can find out what it required. By Mr. Condon: Q. Mr. Atkin, we were talking a moment ago before the recess about the extra time involved in additional weighing or weights. Now, if the concern that you express from a sanitary standpoint, is that concern involved with deterioration of the bird? Mr. Kahaner: I object to that, if your Honor please. Mr. Condon: I am just using your word, Mr. Kahaner. Judge Friendly: What’s the objection? , Mr. Kahaner: I don’t know what that means. Is it his [fol. 82] concern we are talking about or the U. S. inspec- tors’ concern? Judge Friendly: Will you rephrase your question. Q. In the additional few seconds involved in an added weighing, is there danger of deterioration of the turkey? Mr. Kahaner: I object to that. I don’t think the witness is an expert on that. Judge Friendly: Overruled. You may answer. A. I don’t think the point of deterioration so much as contamination might be involved. Judge Friendly: Why would that be, Mr. Atkin, if the weigher had rubber gloves, and so on? The Witness: Just the possibility of contamination. ‘Anny time you handle any food product— Judge Friendly: You regard it as a serious possibility The Witness: No, not serious, but it could be possible. 90 Judge Friendly: Anything further? Mr. Condon: I have no further questions of Mr. Atkin. {fol. 83] Judge Friendly: Anything further, Mr. Ka. haner? Mr. Kahaner: No, sir. Judge Friendly: You are excused, Mr. Atkin. I thank you. (Witness excused. ) Judge Friendly: Next witness. Mr. Condon: Mr. Posegate. RussE_L Posgeate, called as a witness on behalf of the plaintiffs, being first duly sworn, testified as follows: Direct examination By Mr. Condon: Q. Mr. Posegate, by whom are you employed? A. Armour & Company. Q. What position? A. Iam supervisor of poultry processing. Q. Where do you have your office? A. Chicago, Illinois. Q. And in that position, what are your responsibilities! A. I work with the establishing of and maintaining and enforcing quality control procedures and production tech- niques, processes and costs. Q. Of what product, sir? [fol. 84] A. Poultry and egg products. Q. And in that connection do you have responsibility with respect to turkeys? A. Yes. Q. And with respect to stuffed turkeys? A. Yes. Q. Where does Armour & Company process stuffed turkeys? A. Turlock, California and Barron, Wisconsin. Q. How long has Armour & Company been in the stuffed turkey business? A. Nine years. Q. Since 19551 A. Right. Q. Did you have any responsibility with respect to stuffed turkeys at the time that Armour & Company went into this business? A. Yes. Q. Specifically, did you have any connection with the establishment of the processes in the two plants which you named? A. Yes, directly. Q. What connection did you have there? A. My responsibility is to set up production methods, [fol.85] quality control procedures, and enforce these procedures. Also I have charge and am responsible for the costs of production. Q. Did you establish the procedures that are used at Turlock and Barron, Wisconsin? A.. Yes. Q. Were you present at those plants when the pro- cedures were established? A. Yes, I was. Q. Mr. Posegate, you have heard Mr. Atkin’s testimony, have you not? A. Yes. Q. And with respect to the receipt of live poultry and dressing and evisceration and chilling, is that operation substartially similar in the Armour plants as Mr. Atkin described in his plant? A. Yes. Q. So that if we then would start at the beginning of the stuffing operation—by the way, before I go on, where would the stuffed turkeys offered for sale by Armour & Company in the New York area originate? A. Barron, Wisconsin. Q. All right, fine. So let’s confine ourselves to Barron, (fol. 86] Wisconsin, in answering the next series of ques- tions. Would you describe the stuffing operations and proce- 92 dures and operation from the time your turkeys come out of these chill tanks preparatory to stuffing? A. The turkeys which have been graded U.S.D.A. Grade A are placed on a drain line. This drain line is an over. head conveyor having special equipment for holding the bird erect for drainage so that all free moisture is drained from the bird which takes about 18 to 20 minutes prior to the bird being stuffed. Now, the stuffing is mixed in a mixture. It is mixed three to four minutes. The stuffing consists of Pepperidge Farms dried bread, water, vegetable oil and, of course, the incorporated spices in the dressing. This is placed in the birds with an apparatus known as a Moyno pump which is a food type pump designed not to break up particles or to put excess pressure on products pumped to this system. The bird is placed over the stainiess steel pipe emanat- ing from the pump. The pump is controlled by a foot- operated electric clutch type switch which aids in starting [fol. 87] and stopping it quickly. So once the amount of dressing that is put in the bird is reached, the pump will stop without exuding excess dress- ing on to the table or other equipment. The bird is filled by holding it and the dressing moving the bird away to the point where we know the body cavity is filled. We aim for all body cavities to be filled, but without ex- cess pressure. After these body cavities are filled, the bird is placed on a belt conveyor. It’s a white rubber belt that goes down the center of the table and it goes from there to girls who re-examine the body cavity at the abdominal opening to take and remove—in fact, they cut back some of the stuffing that was left by the pump pipe. We do this so that we will have a place to place the gib- lets between the legs and into—starting into the abdominal cavity. This limits the amount of stuffing that we can have exud- ing from the abdominal cavity. 93 After we get through with this, we truss the birds with a string which ties the wings down and also holds the legs [fol. 88] in position. We do not bark-truss, as is commonly known in the trade, when the legs are inserted in the abdominal strap. After this is done we then move to the girls or the work- ers who have pans of dressing. This dressing is put in the crop cavity, in layman’s language, and it is filled till the contour of the bird is-normal. . If this was not filled, this crop cavity would be indented and detract from the appearance of the bird. After the stuffing has been completed, the bird moves on to the CRYOVAC application station. Bags are slipped over each bird. The birds are put on a vacuum apparatus, air removed; they are slipped, sealed, they are weighed. The weight is marked on the bag. The bag goes through the shrinker. From the shrinker, they go into packages. From packages into an air blast freezer. Q. Let me see if I understand this. Do you add the moisture— [fol.89] A. We add the moisture— Q. —to your stuffing before it goes into this? A. Yes, we do. Q. Does it go in automatically? A. Measured amount, exact amount. Judge Wyatt: Mr. Posegate, what is the object of put- ting the birds in this tank which somebody called slush ice? The Witness: Slush ice. Judge Wyatt: What is the object of that? The Witness: That is a common method of chilling poul- try, all types of poultry in every poultry in the United States, whether it’s chickens, turkeys, or what. Judge Wyatt: You mean to make it easy to work with? The Witness: No, to make the animal, immediately after the bird is stuffed—when it’s slaughtered it’s about 102-de- grees, and to protect it, keep it, it is necessary that we freeze it rapidly, and if we don’t cool it, we have a bird 94 that is dried up, looks terrible, because the epidermis ig removed in today’s process. We used to leave the epidermis on poultry which re. (fol. 90] quired a lot of people, but today it is all removed and so, therefore, our bird has skin removed. Mr. Condon: I will ask that this be marked for identifi. cation. (Plaintiffs’ Exhibit 4 marked for identification.) Judge Wyatt: This is going to bean Armor ‘arkey? Mr. Condon: This is an Armour turkey, yes, -r. By Mr. Condon: Q. I will hand you Plaintiffs’ Exhibit 4 for identification and ask you to tell us what it is. A. It’s Armour Star stuffed junior young turkey. Q. Can you tell me where that was processed? A. Packed at plant P-190, which is Barron, Wisconsin. Q. Now, will you show us on that package where Armour & Company places the giblets. A. Under this tag between the legs is the foil-wrapped package of giblets. The giblets consist of heart, gizzard and liver; no neck. {fol.91] The neck is not included with this bird. That package is under there displacing that amount of dressing. This tag over there, is, of course, the cooking recipe, so when she removes it she has this for her instructions, how to prepare it. Q. And that location of the giblet cavity—of the giblets, rather, is that over the abdominal cavity? A. It’s partially in the abdominal cavity. The end is in- serted slightly. That’s why I told you that we had removed some dressing. Q. Where then is the dressing in the crop cavity? A. The dressing in the crop cavity is in this neck skin which you can see here ws put back, this bird, the dressing is put in here with a spoon. This is pulled back and only enough dressing is put in there to keep the natural contour of the bird. - We have to do that because if we put in more than we should, if we would have a bulge there, this would break and pop out in the roasting process. If we put too much stuffing in the bird itself, this bone will come up out when cooked, so we are limited— [fol.92] Judge Croake: It doesn’t have to be cooked in the CRYOVAC bag? The Witness: No. Q. Do you know, Mr. Posegate, the volume of stuffed turkeys produced by Armour & Company annually? A. It has been between 4 million and 5 million pounds annually. Q. Ever since 1955? A. Right. Q. Is your plant at Barron, Wisconsin, also under United States Department of Agriculture inspection? A. Yes, it is, both inspection and grading. Mr. Condon: I have av further questions. Cross examination By Mr. Kahaner: Q. Mr. Rosegate, did you say you heard Mr. Atkin testify as to the manner which Swift stuffs their turkeys? Would you say your company is similar or different? A. The process is different. Q. As I gather from what you testified, the machine that does this stuffing is controlled ; is that what happens? A. Start and stop control. Q. And Swift hasn’t got that, is that it? [fol.93] A. Idon’t know. Q. Well, he didn’t testify to that at all, did he? Did you hear him testify to that type of a machine? A. No, I didn’t. Q. Well, why do you use that? Is that better than leav- ing it for a girl to determine how much stuffing should go into a bird, as Swift does? Would you rather have done it mechanically ? A. You misunderstood me, sir. Pea tage 96 Judge Wyatt: Yes. I didn’t understand him to say it was done mechanically. There is a clutch, a foot clutch that the girl operates to determine when it starts and when it stops; isn’t that right? The Witness: That’s right. Judge Wyatt: It is the same system as the Swift’s. Q. The girl steps on this clutch? A. That’s right. Q. And this stuffing is injected into the cavity of the bird? A. Right. Q. When she takes her foot off the clutch, it stops? [fol. 94] A. Yes. Q. No more stuffing goes in? A. Right. Q. Then, in other words, it is up to the girl to determine just how much stuffing goes into the bird? A. Yes. Q. The longer she keeps her foot on this pedal, the more stuffing goes into the bird? A. No. Q. What— A. More stuffing may come out of the pump, but it won't go in the bird. Q. So there is an automatic cut-off? A. Not automatic. Q. What then? A. No, it is not automatic. Q. If she continues to keep her foot on this pedal, you say that once there is a certain amount of stuffing in the bird, no more stuffing will go in, even though the release is on? A. That’s right. Q. What stops it from going in? A. The turkey would go out of her hands. [fol. 95] Q. The turkey—what is that? A. In other words, she is holding the turkey. Q. Yes. A. And as it fills, she feels it. If it fills she has to move it away. When she sees it’s moved away from the end of 97 the nozzle, she stops, and the excess dressing is removed later, if there is any excess. Q. Well, do you also have a system as to the weights of the bird within a pound or so as they come off the assembly line? You also pick out these birds according to weight, five pounds, six pounds, seven pounds. Are they also done at the same time? A. Yes, various sizes, depending on range, depending on orders. Q. Do you have a 5-pound turkey and 10-pound turkey going down the line? A. Not that extreme. Q. And as this turkey goes in, is it compressed? As the stuffing goes in, it’s compressed into the bird, right? A. Somewhat, yes. Q. Do you know how many pounds of stuffing go into a §-pound turkey? {fol.96] A. Approximately a pound and a half. Q. Well, is your system different than Swift & Com- pany? They have something about a pound and an eighth or a quarter. A. Yes, I think it is. Q. So you put more stuffing in your turkey than Swift does? A. Possibly by weight, I am not sure. Q. Well, you heard the testimony? A. Yes. Q. And from that testimony would you say that Armour puts more stuffing in than Swift does? A. By the testimony, yes. Q. Do you also find more than a pound and a half going into a 5-pound turkey? A. The pound and a half is average. I couldn’t answer you. Q. Well, could there be a 5-pound turkey that would have a capacity to take more than a pound and a half? Would ar ga turkey have the same capacity? 0 Q. So actually, even though you have two 5-pound tur- keys, you can have a turkey taking a pound and a half, [fol. 97] some might take two pounds? 98 A. Right—no, not two pounds. Q. A pound and three-quarters? A. No. Q. What then? A. I wouldn’t answer it because I don’t know. Q. Well, would you say the capacity of every 5-pound bird is similar as to taking stuffing? A. Relatively so. Q. But there are differences? A. Slight differences, yes. Q. Well, how many— Judge Croake: The variance would be slight? The Witness: Yes. Q. How much would you say it varies? What do you call slight? A. I would say about 10 ounces variance, over and under. Q. Have you ever'tested that? A. Yes. Q. When? A. Several times during our operational— Q. And you found that the same turkey would take vary- ing weights of stuffing? [fol.98] A. Yes, alittle difference. Q. Only a little? Mr. Condon: Same size turkey. Mr. Kahaner: Same turkey. Q. When I say “same turkey,” meaning the same poundage. A. Yes. Q. And the most variance that it has ever taken is 10 ounces? A. The most I have seen. Q. Well, would you say that others have seen where it takes more than 10 ounces? A. Ican’t say what others have seen, I don’t know. Q. Well, is it possible to take more than 10 ounces? A. I don’t think so. Q. You don’t think so, or you don’t know? A. I don’t know. Q. Is there a possibility that a 5-pound turkey would have a cavity to take a pound and three-quarters or two pounds of stuffing? A. No. Q. Impossible? [fol. 99] A. No, depends on the stuffing, of course. Judge Friendly: Your stuffing? The Witness: Or our stuffing. I wouldn’t know. Q. And you have your plant inspected by the Depart- ment of Agriculture? A. Right. Q. Poultry Division. And these inspectors—what are they anxious to have happen at your plant? Are they in- terested in the weight, or are they interested in the whole- someness of the bird? A. They are interested in both. Q. They are? A. Yes, sir. Q. Are they interested in making sure that the bird is wholesome, free from disease? A. Yes. Q. That’s from the beginning, from the time the bird comes in live, is that it? A. Yes. Q. And your plant facilities must be sanitary? A. Yes. Q. Is that right? A. Yes. [fol.100] Q. And everything in connection with your plant is for the wholesomeness of the bird and to see that it is free from disease; is that the main object of the in- spection? A. That’s one of their— Q. Would you say it’s only a minor objective? A. —prerogatives. It’s one of the important parts, double inspection. Q. Is it a very important part? A. Yes, double inspection. Q. It’s important that the plant is sanitary and the birds shipped out of your plant are wholesome? 100 A. Right. Q. Free from disease? A. And in good condition. Q. Good condition. Judge Wyatt: Do the inspectors at your plants make checks of the net weights that you show? The Witness: Yes, they do. It’s part of labeling. Q. When they inspect the weight, do they inspect the scale, check it? A. Not necessarily. Q. Their job is not to check those scales, they just look [fol. 101] at it, is that it, see that the weight is there? Mr. Condon: If you know. A. In some cases they check sceies, if they have their own scales. Q. They bring their own scales into the plant? A. For some types of weight testing, yes. Q. What type—I am only talking about the weight test- ing of the stuffed turkeys. A. No, no. Q. They do not bring in their own scales? A. They do not. Judge Friendly: How do they check the weights? The Witness: On the scales that we use. Judge Friendly: To make sure— The Witness: We check our own scales. We have scale testers who come in in some states. Judge Friendly: So far as your department is con- cerned, they are only checking that the weights are correct as shown by the scales? The Witness: Yes, that we use the proper tare. Q. Do you have anybody inspecting to see that there [fol. 102] isn’t too much stuffing in the turkey that Swift testified to? Wests A. Yes, I have four men that work with me as quality control agents. Q. Quality control as to what? 101 A. As to workmanship, production costs, methods and procedures which we establish—have established. Q. What do they do about checking the weight of the stuffing ? A. We determine that on an average basis. Q. Who is “we’’? A. We know that overstuffed birds are going to come apart in the cooking process. Therefore, we have an estab- lished figure and we know how to attain that figure, just like—by the skill that we have taught our people. Q. When you say an overstuffed bird, what does Armour consider overstuffed on a 5-pound bird? A. When the crop cavity is overfilled and when the ab- dominal cavity is filled and when the dressing exudes or sticks out of the abdominal cavity. Q. And if it doesn’t do that, they don’t check it, is that it? A. That’s checked by making the dressing in the ab- [fol. 103] dominal cavity conform to the natural contour of the bird, minus a spoonful, to be exact, tablespoonful, to allow a place for the giblets to be inserted. , The other determination of crop cavity is natural con- tour of the bird, as you see on the table. Q. Armour & Company, it would appear from what you said, if I understood you correctly, you stuff your bird twice, is that it, or in two operations from the back and from the neck, or somewhere? A. Right, we do. Q. What’s that, to take advantage of the entire cavity, make sure that it is filled? A. Ali poultry is stuffed in that manner. The abdominal cavity and the crop cavity, you cannot stuff them under— Q. Swift didn’t testify to that operation. Judge Croake: Yes, he said in the process they turn the bird around. Mr. Kahaner: I’m sorry, I didn’t hear that. Judge Croake: Go ahead. Q. Actually, there are two stuffings: you stuff it in from the back and then into the neck aperture, is that it? {fol. 104] A. That’s right. 102 Judge Wyatt: That’s for appearance, isn’t it, Mr. Pose. gate? The Witness: Yes, and you have enough stuffing to sat. isfy somebody wanting a stuffed bird. Judge Croake: This probably has been done even be. fore— The Witness: That’s regular cook book procedure. Judge Croake: All right. Q. Does it happen that some of these birds are over. stuffed as they come down the line? A. Not at the final weighing station, no. Q. Where is it caugkt? A. It’s caught by the people that work along the line, the people that put the giblets on, which is the final process prior to going into the bag. : Q. In other words, they can tell from the appearance of the bird? A. You can see it. Q. In other words, if it doesn’t look overstuffed, they don’t check it? A. That’s right, yon can see. That bird’s abdominal [fol. 105] cavity is a rigid thing, it doesn’t stretch. In other words, it doesn’t expand if you try to put pressure on it. If it did, it would blew all to pieces. Q. But there is a way of stuffing it lightly or stuffing it solidly? A. That depends on the composition of the dressing somewhat. Q. Doesn’t it depend on the amount of stuffing that goes in, whether you want it to be solidly stuffed or lightly stuffed, you can have the dressing anyway if you want it lightly stuffed, it doesn’t matter what the quality of the dressing is? A. The volume would be—depending on the specific gravity of the dressing—would be the variation. In other words, if you had more dressing your weight would be greater, and vice versa, but your volume would be com- parable. Q. But, actually, you can fil' i: up and stuff this solidly, this bird, right, and the same bird can be stuffed lightly? 103 A. Possible, yes. Q. There would be a difference in the weight of the stuffing, wouldn’t there? w A. Oh, yes. Yes. [fol. 106] Q. Do you stuff all these birds solidly an some lightly? A. No, we stuff them all alike. Q. Well, how do you know that a bird is stuffed lightly or solidly? : A. Well, when you get into the term lightly and solidly, you are getting into a difference in types of dressing. Q. Well, that’s the reason we have this statute, but you go and tell me what your reasons are. A. We cannot stuff, as you use the word, solidly. Any- body would not have customers if they stuffed turkeys to that point because you would have a mass that would be very undesirable. Q. Are you referring now to Armour & Company and Swift & Company? A. Iam talking about Swift & Company. _ Q. Were you going to speak for a lot of other packers who might want to stuff it, put as much stuffing in as the bird would take without worrying about the other matters you are discussing? You say it is a matter of policy, it’s up to the packer to determine whether he wants to stuff it lightly or solidly, is that it? [fol.107] A. We have a customer to please first. Q. Well, how do you know whether the customer wants light or solid stuffing? A. That gets you into the merchandising field where I am— Q. Oh, it gets beyond you then, right? A. Right. Q. But there is a way—in other words, you can—it is up - to the packer to pack this the way he wants to, solidly or lightly? A. To a degree. Q. And he can determine the weight? A. No. What do you mean by determining the weight? Q. The weight of the stuffing. 104 A. He can determine the volume of a particular type of— Q. With less volume it weights less, doesn’t it? A. It depends on the type of stuffing. Q. Look, we are not going to deal in semantics here, If there is less volume, would you have less weight in the stuffing rather than— A. Ata particular time, yes. Q. So actually the packer determines how much stuffing [{fol. 108] he wants to put iito that bird? A. I guess you’re right. Q. And the bird—after the weight is put on, do you ac. tually have one weighing of those turkeys? A. That’s right. Q. And how long are these hirds exposed to the bacteria with the one weighing in your plant? Swift said it takes about a half an hour. A. Are you talking about the total process now? Q. Yes, talking about the process, if you take it out of the brine after it has been there soaking for a day and night, and you bring it up and let it go along the overhead conveyors and let it drip, how much time elapses between the time it comes out of the brine, up on to those conveyors, through the dripping process and down in to be stuffed and then finally into the freezing process? A. 45 minutes. Q. All of that time the bird is in the process of being stuffed, 45 minutes? A. Right, a phase of draining or processing. Q. I am talking about the whole process from the time it leaves the brine. A. That’s right, that’s what I am talking about, 45 [fol. 109] minutes. Q. So in your case the birds take 15 minutes longer than Swift to be processed? A. Right. Q. Why do you take longer? Is there any special process you give it? A. We do not use the liquid freeze. We go into an air blast freeze 30 to 40 degrees below zero and that means it— 105 Q. During this 45-minute waiting period, is there any deterioration in the bird? A. It couldn’t be measured. Q. You don’t notice any? A. No. Q. Did you ever try to determine the condition of the bird at the time it came out of the brine where it has been all day and then measure the bacteria on it from the time it gets frozen, or the condition of the bird? A. The condition, yes, there is no difference in the con- dition. Q. There is no difference? A. No. Q. In other words, the bird stays the same from the time [fol. 110] —the entire 45 minutes there is no deter [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0185%3A01. Public record. Not legal advice.