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October 28, 1947


The opinion of the court was delivered by: WATSON

This action is before the Court upon the complaint by the Administrator of the Wage and Hour Division of the United States Department of Labor, alleging violations on the part of C. H. Musselman Company, the defendant, of the Fair Labor Standards Act of 1938, U.S.C.A., Title 29, Sec. § 201 et seq.; and requesting an injunction restraining further violations.

The facts in the case were stipulated, arguments were heard, and briefs were filed by the parties and by the International Apple Association and the National Canners Association amici curiae.

 During the period beginning approximately September 1 and ending approximately February 1, and depending upon the size of the apple crop, but not exceeding 28 weeks in the aggregate in any calendar year since October 24, 1940, C. H. Musselman Company has employed in each calendar year during such period 1,800 employees in and about its three plants heretofore referred to. During the remaining period in each calendar year since October 24, 1940, the total number of employees at the three plants of C. H. Musselman Company has been approximately 350. During the period beginning September 1 and ending approximately February 1, the number of employees engaged in pomace drying operation in each calendar year since October 24, 1940 has been 3, 2, and 6 at the Biglerville, Gardners, and Inwood plants respectively.

 Beginning approximately September 1 of each year, and for about 14 weeks thereafter, apples are delivered to the defendant's plant at Beglerville. There they are weighed and then, as needed, go through the following process: the apples are deposited in a trough and, by a current of water in that trough, are conveyed to the cannery from the warehouse. From the trough the apples are ejected to a sorter constructed of moving link chain belts with holes of various sizes. Apples larger than 2 1/4 inches in diameter are conveyed to the canning room where they are carried through a series of paring and coring machines, after which they are conveyed past workers, who remove apples unsuitable for slicing and canning, and who remove remaining peel or bruised specks from such apples.

 Apples smaller than 2 1/4 inches in diameter fall through the holes in the first series of belts on to a conveyor, to be carried to the press room to a grinder. These small apples are intermingled in the press room with the apple peelings and cores, and with the whole apples unsuitable for slicing and canning and with the bruised specks and peelings removed by the workers referred to above; and also with the remnants of cores from the apple slicing machines. All of the foregoing are ground into a mash, which is then subjected to high pressures to extract the juice, after which the grinding is repeated, and the mash is again subjected to high pressures. The solid pulp remaining after the second pressing, called 'green pomace' is again broken up into fine pieces and conveyed to kilns, where the green pomace is dried, which drying process is conducted by employees, whose overtime hours are involved here. The dried pomace is packed into bags and stored for use in making pectin for use or sale by the defendant.

 Plaintiff's right to succeed depends upon the interpretation and application of the phrase 'first processing', as used in Sec. 7(c) of the Act. If defendant's operation be deemed the 'first processing of * * * perishable or seasonal fresh fruits', then both of the exemptions are properly claimed, since the Administrator has found the first processing of apples to be an industry of a seasonal nature within the meaning of Sec. 7(b)(3) of the Fair Labor Standards Act.

 'Process' has been defined as follows: 'A series of actions, motions, or occurrences; progressive act or transaction; continuous operation or treatment, a method of operation or treatment as the process of vegetation.' Webster's New International Dictionary.

 However, we are concerned here with 'first processing', as used in 7(c) of the Act. That section provides a 14 week exemption as to the employees of an employer engaged in the 'first processing of, or canning or packing, perishable or seasonal fresh fruits or vegetables.' It is clear that the requirements for the first processing exemption are: (1), The fruit or vegetable which is being processed must be fresh; (2) It must be seasonal or perishable; (3), Processing must be that which first converts the fresh fruit or vegetable into a nonperishable salable product. The ingredients of which the pomace is composed are as follows: whole apples less than 2 1/4 inches in diameter, peelings, and cores of fresh apples, and whole apples peeled but not sliced. It must be conceded that all of these ingredients are fresh, although the Administrator contends to the contrary. The apples, and parts thereof, from which the pomace is made, are both seasonal and perishable, all of which is agreed to in the stipulation of facts. The first process continues until a non-perishable and salable product is produced; otherwise, the exemption would be entirely meaningless, and would fail to accomplish its purpose of providing relief for the processor of perishable commodities during the peak season. A non-perishable product results only after the pomace has been completely dried. Without this complete drying, the green pomace is entirely useless, for fermentation begins within a short time resulting in loss of its pectin content. As the green pomace is highly perishable and non-salable, the only conclusion is that the first process continues at least until the pomace is thoroughly dried, when it becomes a non-perishable and salable product.

 In the opinion of this Court, the admitted facts bring defendant's pomace processing operations within the requirements of the first processing exemption. Certainly Congress did not intend to penalize employers for converting the little apples 'which God made', the peelings and cores of other apples, and whole apples already peeled, all perishable, into a non-perishable salable product. In Walling v. California Conserving Co., D.C.N.D. Cal. 1945, 74 F.Supp. 182, an identical question was before the Court, and it was held that the employer of those engaged in processing of apple pomace was clearly within the Sec. 7(c) exemption. In Hendricks v. Di Giorgio Fruit Corporation, D.C.N.D. Cal. 1943, 49 F.Supp. 573, a similar question was involved and the Court, in a well reasoned opinion, found that the 7(c) and 7(b)(3) exemptions were properly taken.

 Under the plain meaning of the Statute and the Congressional intent, the Administrator is not entitled to the relief prayed for. The exemptions provided by Sec. 7(c) and 7(b)(3) of the Fair Labor Standards Act were properly taken by the Defendant, W. W. Musselman Company; and judgment will be entered in favor of the Defendant upon the Finding of Fact and Conclusions of Law filed herewith.

 Finding of Fact.

 2. C. H. Musselman Company is engaged in its three aforementioned plants in the production, sale and ...

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