TUTTLE, Circuit Judge.
The Secretary of Labor appeals from a directed verdict in favor of appellee in this action brought on behalf of two employees for additional compensation provided under the Wage and Hour Law.
The only question is whether on the record made the trial court erred in directing a verdict against the Secretary on the ground that the undisputed evidence was to the effect that the sales of the ice company in question were "recognized as retail sales * * * in the particular industry."
The critical sales were sales of 25 to 40 tons of ice per delivery to shrimp boats at $4.50 net per ton by a company which made sales at its loading ramp at $3.00 per 300 pound block, or at the rate of $20.00 per ton. It was not disputed that the srimp boat sales exceeded 25% of the total sales so that if they were not recognized in the industry as retail sales the employes were covered and the Secretary would be entitled to recover for them.
It must be borne in mind that this exemption depends not upon whether the particular sales are retail sales, but on whether they are recognized in the particular industry as retail sales.
Here, four industry witnesses, including the president of appellee, testified that in their opinion sales of ice that
In view of the fact that the jury had the right to consider all the circumstances surrounding the sales, including the great difference in price between the admittedly retail sales and the large or commercial sales, and to consider the opinion of the industry member favorable to the secretary even though weakened on cross examination, we think the issue should have been put to the jury. The jury was, of course, not bound to accept the opinion evidence of the industry experts. New York Life Ins. Co. v. Johnston, 5 Cir., 256 F.2d 115, 118. The weight to be given to their opinions was, of course, to be weighed in light of their self-interest as well as the reasoning with which they supported them. It was not proper for the trial court to take the case from the jury.
The Secretary assigns error because of the refusal of the trial court to permit him to introduce in evidence what he calls a "determination by the Administrator of the Wage and Hour Division, concerning application of the 13(a) (2) and 13(a) (4) Exemptions to Ice Manufacturers and Dealers." This document purports to be an interpretative bulletin. It simply states that, "In applying the tests of 13(a) (2) exemptions all sales of ice will be regarded as retail except: * * * (4) Sales of ice of a ton or more."
It is not clear just what effect the Secretary contends should be given to the document. It does not purport to be a finding to the effect that in the ice industry sales of a ton or more are not considered retail sales. It appears only to be instructions for the attempted enforcement of the act by the administrator. Here, it is, of course, no evidence on the issue of how these sales are considered in the industry. It is not offered as a guide to the court in construing the statute. Cf. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124. It was tendered in evidence to be considered by the jury in passing on an issue as to which it is completely silent: "what is considered in the industry to be retail?" We conclude that the trial court correctly excluded the document from evidence.
Just as the appellee witnesses were permitted to give as the basis of their opinion their familiarity with the practices in the industry, so could a witness for the Secretary if such a one testified to the contrary, give the basis of his opinion, including the studies made by the Wage and Hour Division. We do not think, under recognized rules of evidence he could be permitted to testify as to the conclusion reached by the Wage and Hour Administrator as expressed in the "determination" here in issue.
We have not been favored by a brief or argument on behalf of appellee, since it appears that appellee is not now represented by counsel. In the absence of such presentation, however, we have endeavored to understand and appreciate the full value of its case. The judgment must be reversed and the cause remanded for further and not inconsistent proceedings.
Reversed and remanded.
JOHN R. BROWN, Circuit Judge (concurring in part and dissenting in part).
I concur readily in the Court's opinion for reversal of the cause for a new trial. With deference, however, I am unable to agree with its treatment of the official Interpretative Bulletin issued by the Administrator of the Wage and Hour Division.
While I must recognize that the matter presents unusual difficulties, it seems to me that any such ruling ignores the statutory position of the Administrator
If, as the Supreme Court states, note a, supra, the Interpretative Bulletins of the Administrator "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance," the question arises as to how they shall be of any effectiveness at all where the trier is a jury unless the jury is somehow made aware of the bulletins. Of course, a question of law might well exist in which the court will have to determine, on the standards
The courts do accord great weight to the Administrator's rulings in the evaluation of factual cases. Mitchell v. Greinetz, 10 Cir., 1956, 235 F.2d 621, 624, 625, 61 A.L.R.2d 956. That court pointed out that Congress is aware of these administrative interpretive rulings and bulletins by the 1949 Amendments in Section 16(c), 29 U.S.C.A. § 208, and which we have characterized as the "unique imprimatur" which Congress has placed upon these rulings. Libby, McNeill & Libby v. Mitchell, 5 Cir., 1958, 256 F.2d 832, 837.
Here this Court reads this Interpretative Bulletin through a technical microscope. The Court states that it "does not purport to be a finding * * * that in the ice industry sales of a ton or more are not considered retail sales. It appears only to be instructions for the attempted enforcement of the Act by the Administrator." Since the Bulletin has as its express purpose the application of the exemptions of Section 13(a) (2) and
The error of this Court is reflected by the brief comments made on how the Administrator can combat testimony, expert or factual, from industry representatives. The Court states "just as the [industry] witnesses were permitted to give as the basis of their opinion their familiarity with the practices of the industry so could a witness for the Secretary if such a one testified to the contrary, give the basis of his opinion, including the studies made by the Wage and Hour Division." This seems to me to have two primary defects. First, the ruling no longer has an institutional character. And second, this subjects the Administrator to cross examination as to the manner in which he performs his office.
As to the first, it must surely be acknowledged that the weighty deference which the Supreme Court accords to the Administrator's rulings, see note a, supra, is only to those made in his institutional status and character as Administrator. As such they represent a collective judgment in an institutional corporate sense
The effect of what this Court has done is to obliterate for all practical purposes this Interpretative Bulletin of the Administrator. It permits only that some human being speaking on his own personal knowledge and as a spokesman for those personal views — not official conclusions — shall be allowed to testify. But when thus heard by the jury, or the other trier of fact, the words no longer carry the weight of the collective institutional
That is inconsistent with the institutional character of the Administrator's rulings to which courts are admonished to give careful respect. Either they are entitled to no weight whatsoever (and this Skidmore repudiates) or they are entitled to be used under appropriate limitations by the particular agency — judge or jury — having the responsibility for drawing the final fact conclusions.
Skidmore accords deferential respect to the Administrator's rulings as an institutional product. They cease to have that status if they must be espoused by some human being on the witness stand.
I therefore respectfully dissent.
Rehearing denied: JOHN R. BROWN, Circuit Judge, dissenting.
"We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. * * *."
"The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore v. Swift & Co., 1944, 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124, 129.
"(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.
"(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the original thereof."