# Petition for Writ of Certiorari — Roland Electrical Co. v. Walling > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0022%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 326 U.S. 657 ## Text x ' ~ G ; — pecee = ae . JIN THE Seine ) ; - : tz ; ° Ts | a (pees Pas nou Tig s10Fou JO 20434 o1gB SOPHIZU]) BOIws ION — 908! ——~=——— po'08e'y ————= - Loe ot ee ee J0 a1edas uo #800 Aout Pus s0qy] sepnjou!) sajes doyg . _ ores SL FOB LEL'SS §=-B9"LZ9°99. 00°829'T 8e'9Ps" 1 4S" era si" coq STVAvUt pu® s0qut #uypnjour) or subi er'gor" LL -~ oS 1r 910'89 ze mache esp “SUONWOYISSB[D : Mad (ede ibaa . soqve ee. 18790 0% e161 bs Fe mr ay} 40f ope _ umopyna.g » e Se: Benge aan ; 6, ~ . ¢ - >: e. J phe -The- designations: “Shop ‘or ‘A’ Sales’’, ‘‘ Wiring or ‘B’ Sales’’ and ‘‘ Material or Storage Charge Sales’’, as used in the-above tabulation showing gross' business of. $251,833. 35 . for the ‘period January 1, 1942, to Qetober: 31, 1942, are: defined in paragraph VI of the stipulation. It is stated therein ‘that “Shop * or ‘A’ sales’’ represented all income . vbtained from customers as the result of repairs: and recon- ditioning of.motors on and off of the premises of the cus- ° -tomer and included“both the labor ‘and material costs of such nee ae ‘The ‘* Wiring or.‘B’ sdles’” represented all ° ‘income from customers for thé repair and installation of wire, fittings, and relocation and rearrangement of elec- - trical motors, -ete., ‘in ithe plants of such customers. The ‘Material or storage charge sales’’ represented receipts _- from the sale of new and used motors, generators, ete. _- There’ was an additional income of $500 resulting from | sales by petitiones, of scrap incidental to. the repair and reconditioning work in its shop. (R. 4 ee tioner were not manufactured by the petitioner but equip- ment.it ad purchased from manufacturers. thereof for resale in the petitioner’s retail trade. is ae was’ stipulated in Paragraph IX:of the stipulation (R.: that as of November 1, 1942, the petitioner had approxi- on y. 1,000 active accounts, 99 per cent of which were those * of commercial or industrial. firms... It is further stipulated. , in paragraph VIT that during the period-of June 30, 1941, to October 31, 1941, the petitioner performed work i in Mary- land plants for bat eleven customers whose pripcipal offices were -in- other. states and that during that etitire year the \ petitioner sold but ‘six rebuilt and repaired: motors for an aggregate of $1,020.09 to/ customers in other states than Maryland: (R. 11) Thé-parties apparently used the figures -. . for 1941 in this reSpect either because the figures for the _ * above,period of January 1, 1942, to October.31,.1942, w ere... not available or.the stated figures for 1941 were represen- . tative of the volume of petitioner’s business of an interstate The new motors’ and other equipment sold by the peti- ra ees 8. 1 character, infinitesimal part | of the aggregate business: Among the 99 per cent of. the commercial ‘or industrial firms which were customers of. the petitioner, 33 of them ‘furnished $55,013.20 of the total .of $251,833.35 business - dene by ‘petitioner for' the period from January 1, 1942,,. to October 31, 1942, and of the 33, four were engagéd in’ the State: of Maryland i in repair of ships, tugs, barges and other boats intended for movement inf interstate commerce ; _and 28 were engaged in the production of other goods than electric motors and other appliances for commerce, as set forth in paragraplis X’and XI of the stipulation. (R. 11-13). | The record dees ‘not sliow that-the other 967: accounts - ° producing the balance of $196,820.15 of the aggregate in- come of $2 51,833.35 were producing goods for commerce, . though it is indicated ‘in paragraph. [X of the’ stipulation 3 that they. were almost entirely commercial and industrial concerns. (R. 11)-4n-view of the care with which it was stip- ulated i in paragraph XI that almost all of those 33 concerns: - were producing: goods for commerce; it'must be presumed upon’ the basis of: expres St0, unis est exclusio alterius, that ; none of the other 967 concerns were doing oe .:) = Some of these customers of the petitioner had electrical maintenance departments, but for some reason or another, not fully disclosed by the record, the petitioner was called upon to do some of their repoit work, (R. 68, 69). " (¢) | Number of Petitioner’ 8s Employees and Deicription of | . Their Duties. Thia electrical repair shop employs thirty- Six - persons, including one foreman, eight mechanics, six help€rs and | ‘four trouble shooters in the shop departments, six mechanics - and five'helpers in the wiring department, and. six office employees: Eliminating the six office eraployes, this shop | is taanned by thirty men, eleven of whom are helpers. ( R. t, 8). They ‘manufacture nota for commerce, either intra- state or interstate, unless it be a few. parts for use in| 9 > repairing, rebuilding siden sensilla biinin mating — or some other electrical appliance for customers. (R. 17, 71-95). The men in‘the shop work on disassembling, clean- ‘ ing, rewiring, and/or rebuilding electrical motors and other electrical appliances belonging to customers of the peti- tioner. .In a few instances it. may be assumed that they re- ~ build or recondition electrical motors which the petitioner — . purehused’ from, or took in trade from, some of its custumers. ; The trouble shooters divide their. time. between work in, the shop on the repair, ete., of electrical appliances, and work in the plants and’ business. establishments of peti->_ ioner ’s customers where an ‘electrical. motor or appliance mete out of working condition and the trouble is such that it may be® corrected. without disconnecting the motor and taking it to petitiéner’s shop for repairs. These trouble. hia shooters also do a ¢gertain amount of rewiring and relocating electrical motors in the shops of petitioner’s customers— _ = located in Baltimore. When.a motor has to be removed to petitioner’s shop for repairs, a motor, the property of =a ioner, is usually loaned or rented to-the customer for ’ use during the repair peried. These lozned or rented motors | *. are installed and connected in the customers’ plants and. establishments’ by the petiticaer’s trouble shooters. It -is _ . Stated in -the stipulation (Far, XIT) that approximately 400 motors of custowiers were in petitioner’ s shop for repairs as of November 1, 1943. (R. 13). There is nothing in the stipulation or in the record to ; the effect that any of petitioner’s thirty-six employees © — operate machines when installed in the. plants and other establishments of the cpstomers of the petitioner in the manufacture of anything for commerce. By repairing. and installing the electrical motor or other appliance owned by’> . the customer, or even a used or new ‘motor sold. by the | petitioner to’ its customer, such a motor becomes a fixture - and is removed from the stream of commerce, as. effectively > as was ‘the. sack of cement converted into concrete and used in the construction # the building i in | which such motor is housed. (R. heat ae 10° ——frere is likewise nothing in the record to show, or even _ suggest, that the customers of the petitioner are engaged in manufacturing and repairing elevtrical motors for com- ,merce. On the contrary, the showing is‘to the effect that | ~ some 32,.only, of the 1,000 firms and ,individuals having m5 accounts with the petitioner as of Nov ember 1, 1942, manu- faeture or otherwise produce other goods for commence. While. some part of the ‘other 968 firms and individuéls are . stated to be commercial of industrial firms, it is not stated that they or-any of. them produced goods for interstate commerce and that fact cannot be assumed. On the con- trary, having regard for the industrial. and commereial _ community of .Baltimore—of. which the Court may-take — , judicial notice—it i “to ‘be assumed. that these other 968 industrial and cotimer cial concerns are retail stores, hotels, shops, and the like.. °° . ‘ The status of petitioner’s employees as to the production ‘of: goods by petitioner’ ~ customers . for commerce is not unlike ‘that of an. employee operating a shop ‘to grind axes . to be used by woodsinen in‘ cutting trees which are after- wards sawed into tumber and the lumber placed in the stream of ecommerce. ° : 6 , As to motors sold by the petitioner, its status is that of a retail dealer and as to used motors and other. appliances _ repaired by ‘petitioner: for its customers to be used in, their _. ‘plants and business establishments, the status: of petitioner ~ remains that of both a retailer‘and a service establishment. The status of, the customers owning both the used motors and the new motors is‘ that of the ultimate consumer. © SPECIFICATIONS OF ERRORS TO-BE Sameera The Cireuit Court of Appeals erred: ae i ae: Rowwising the District Court of the United States for the District of Maryland at Baltimére which ‘gave judgment forthe petitioner here and in giying: judgment for the — here. e ae w | = = “3. lx holding that the petitioner’s. employees : were engaged i in the production af goods for commerce within the terms of the Fair Labor Standards Act (Title 29,. Section 203 (j), U. S. Cede), instead of affirming | the . employees were not oneged in in the db capemerets of ‘goods : for commerce. exemption from the Fair Labor Standards Act..( Title 29, Section 213(a)(2), U. S. Code), as being a ‘‘retail . or service establishment the greater part of whose selling or servicing is in.intrastate commerce.’’ 4. In failing.to hold that the used motors and other electrical. appliances, property of petitioner’s cus- ‘tomers, repaired, reconditioned, and/or rebuilt by peti- . tioner for such customers, as well as the new and used ~ motors sold by petitioner to its customers, almost wholly intrastate, were not goods in the hands of. the ultimate consumers and thereby wholly. removed from the stream of interstate comemrce. i: 5. In failing to hold that repairing, reconditioning, “: and/or rebuilding of electrical motors and other appli. ances used by others as a tool. in producing ‘somé part or all of some other type or class of goods ‘for com. mercé was too remote from the production of stich goods for commerce to come within. the terms of the . Fair Labcr Standards Act. 6. In hélding that petitioner wa¢ not a retail and . service establishment because goods were produced for - gommerce by some 32 of its. 1,000 customers’ for all of whom the petitioner performed repair, reconditioning, © and/or rebuilding services on theirs’ electrical appli- -aneces or.sold.to some of. them at retail ‘new and/or used electrical motors which were used by such ¢us- © tomers as a tool in the — of goods for . commerce: « REASONS FOR GRANTING WRIT. Sa. The judgment entered, January 3, 1945, by the Court “of Appeals for the Fourth Cirenit in this case is contrary ‘to ee of the following other United States Cir- cuit Courts of Appeals, namely: a) s _ holding wf the District Court that the petitioner’s. ” 3. In holding that the petitioner was not within the 12 “No. 78 decided January 9, 1945, _ the ania Cirepit V ] _ + in Phallips, Administratriz, et al. v. Star Overall Dry oF 7 Sie Laundry Company, Inc., and All” Service Ze undry Corporation. The opinion in said case has . ~ fot been xeported as yet but a copy thereof is printed as Exhibit ‘‘B’’ to the brief in support of this petition. ‘White Motor Company-v. Littleton, (Cc. C. & 5th), -——7 72a Fed. (2nd) 92... ° Lonas v. National Linen Service Cor ‘poration, (C.C. A. 6th), 136 Fed. (2nd) 433, 150° A. L. R., 697; Certiorari 7 denied, 320 U. S. 785. To the same effect, 1 ‘Hunt vy. - National Linen Serv sice 78 Tenn. 262. Martino v. . Michigan Window Cleaning C ompany (G C. . A, 6th), 145 Fed. (2nd) 163. Re oa The judgment of the Circuit Court of Appeals in this case is contrary to the Loccerac onto this Court: in the “following cases: MeLe od V. Threlkeld, 319 U. s. 491, 502. Western, Union Telegraph Company v. Lenroat, ‘No. 49, decided January ‘8, 1945, where the telegraph messages ' were no more ‘ produced” Vy the telegraph company employees than the goods in commerce in this casé-« were ‘‘produced|’’ by petitioner’s employees because they worked on lectrical. appliances used by others to assist. in produci 1g such goods. rothers Company, 317 U. S. 574. —— v. United ‘States, 295 . e e Higgins v. Carr Schechter Poult? U. S.. 495. 5. eae oS Kirschbaum @ company v. W alling, 319 U. 8. 517. 3. Finally, the Circuit ‘Court of Appeals sin betauses ‘its judgment in this case is eontrary to the stipulated facts — - that petitioner’s employees-wérked on electrie motors and ' other appliances which had’ ceased to be a part of the stream of commefce and had come ‘into the possession of the ulti- - mate consumers, the os « the petitioner, and such eel appliances, in the instance of 32 concerns, were but tools used by such customers, and not by petitioner’s employees,’ in producing goods for commerce. Hence the petitioner’s’ _ employees were not within the terms of Sections.6 and .7 of, tha Fair Labor Standards Act; Title’ 29, Sections —- and and 207 U. S_Code;- -aind-Wore Within the exceptions from. ~ said Act contained in Title 29, Seetion 13(a) (2), U..8 Code. : ; Respectfully ‘submitted, . ¢ O: R. McGutrz, ae a Attorney for Petitioney” ° ? a March &, 1945. / 1 2. IN THE oupreme Court of. the, United States October Term 1944. No. Tue Rofanp Exvecrricat.Company, Petitioner, » eo : , F Vs. ‘ a. hia Waigss, Aduniersaton OF THE W AGE AND Hovr Drivistox, Department oF Lanon, ‘Re spondent. - BRIEF IN. SUPPORT. OF THE oak ulartes, , THE PACTS. The material and essential facts i in this matter have been’. stipulated, the stipulation is in the record and the stipu- lated facts have been summarized in the foregoing petition under the subheads: (a) Character of petitioner’s place of business; (b) Volume and description of work performed ~ in petitioner's business ; anid (c) Number’ of petitioner’ 8 employees and description of their work. - These facts will not be repeated herein- except to ‘the™ extent necessary to point up the argument as to. why the ie petition should be granted and the judgment. by the Circuit Court of the United States for the Fourth Cireuit should | be reviewed aml refersed in-order to prevent confusion ins: the administration, of the Act. ; ARGUMENT. ; ee ” i _ * P | ae Conflict Afiong the Circuits and With This Court as to What Co tes Production of Goods for Commerce : - Within the Term’ of the Fair Labor Standards Act. There exists a ‘decided conflict aniong judgments of the Cireuit Court of Appeals and. with. judgments of ~ _ a tee SS. peel eae this Court as to what constitutes the production of goods ’ for commerce within the terms of the Fair Labor Standards Act, which conflict has not been, but which should be re- solv ed by this Court. oe “Conflict.among Circuit Coyrts of deen ! The Circuit Court of Appeals for the Fourth Circuit held in this case to the effect that the petitioner’s employees were engaged in the production of goods for commerce while the Circuit Court of Appeals for the Second, and Sixth Circuits have held in similar cases that the. employees were not engaged jj in the production of goods for commeree. This conflict will be hereinafter more fully stated. “It seems that the difficulty has arisen by reason of the opinion and judgment of this Court in Kirschbaum v. Wall- - - ing, 316 U. S..517,.527, where. the Court, went to the — limit in holding that employees were within the terms’ ‘of the Fair Labor Staridards Act because they were | employees of an owner of a loft building which was rented to other compani¢s wherein they produced goods for com- merce but the court there said, among other things, that— ~ “Selling space in a loft building is not the equivalent is of Selling services to consumers, and, in any. even, the. . ‘greater part’ of the ‘servicing’ done by the petitioners here | is not in intrastate commerce,’ ‘The Court further said i in that case that— ‘Our problem is, of course, one of ‘drawing lines. _. But it is not at all a problem in mensuration. There ‘are no fixed point,though lines are to be drawn. The real question is how the lines are to be drawn—what are’the relevant considerations i in plaeing the line here rather than there.’’ The K ireclibawin case can be, and should be, *istinguished from. petitioner’s case—even as was«necessarily done by the United States Circuit Court of Appeals for the Second > Circuit in the case of Phillips, administratia et al v. All _— — a= 17 a yee = a, ‘Service Laundry Corporation, et al, No. 78, decided Janu- ary 9, 1945, a copy of which opinion is printed as Exhibit * _. “B?? to this brief. (Infra, 36-41). Also, a similar distinction was necessarily made by the opinion and judgment of this - _ Court dated January, 8, 1945, in Western Union Telegraph Company v. Lenroot, No. 49 and in this Court’s prior opin-- _ jon and judgment in Releed v. Threkeld, 319 U.S. 491, 502. ' The United States CircuitsCourt of Appeals for the See- ond Circuit in the case of Phillips, Administratix, et al, had before it a case where the Star Overall Dry Cleaning Laun- * dry Company, Inc., of New York, coblected laundry from customers, some of such laundry being collected in other States, and delivered the same to the All Service Laundry Carporation to be cleaned and pregsed, being in this respect , similar to the poultrymen in Schechter Poultry Corpora- tion v. United States, 319 U. S. 491 and the fruit dealer in . Higgins v. Carr. Brothers Company, 317 U. 8. 572. See : also the conflict’ with the Sixth Cireuit Court. of Appeals : -herein set-forth on pages 26-27. > el The Star Overall Dry Cleaning Company, Inc., then col-. ~ lected the laundry from the All Service Laundry ‘Corpora- - tion and delivered the ’ same to the customers.’ “The suit was. by employees of the "All. Service Laundry — under the Fair Labor Standards ‘Act. The United States © District:Court gave judgment for. the employees and this * . judgment was reversed by the Citcuit Court of Appeals ' for the Second Circuit. "The court assumed for the purpose of ean. case that the laundry of the garments was ‘“‘production’’ but did not determine whether the Company doing the cleaning\was a service company. The court placed its opinion on the broader ground that the garments had come into the hands of ultimate consumers before such garments were delivered to the laundry and that the employees of the iaundry jn, . cleaning the garments were not engaged in the production \ of goods for commerce, the garments having been removed . ‘from the stream of commerce by being placed in the hands _. * 18° of their ulti#fitate consumers before they canre inti the pos- session of the laundry: “ . “That court said in’ reference to Title 29, ‘Section 203(i) " of the United States Coie that: : “What are té be treated as géods within the Act fee ‘there defined, and it is made plain that,the definition ~ does not include goods after their delivery into the . actual ‘physical possession of the ultimate consumer thereof other than the producer, manufacturer, r processor thereof.’’ 6 “«The statute makes a clear distinction between goods which are being worked upon*in one or more of. thie - ways embraced within the statutory. definition of ‘pro- ' duced’ before they get into the actual physical’ posses- .. sion of the ultimate consumer and after they have gone into such, possession, provided the: ultimate con-, “ sumer is not himself a producer, ‘manufacturer or processor. We think it is.also clear that the ultimate _. consumers are the. persons who wear out these gar- ments and incidentally get ‘them dirty while doing so. ’ Congress did not attempt. to regulate houfs and wages to the full extent-of its power to do so.’” ‘Here the petitioner’s customers were the ultimate con- * sumers of the electrical applicances owned by’ them whith petitioner’ s employees repaired in its shop, or which they _ repaired in the shops of the customers. (R. 23, 69, 71- 95a: Such customers were also’ the ultimate eonstimers of: the - second-hand or new-electrical | appliances whicli. said cus- tomers purchased at retdil from petitioner’s shop. These: . motors and other eléctrical appliances were not being " worked upon or produced by petitioner’s employees for ; nercé; they had been effectively removed from all tom- sale before they. -were worked on and repaired by" _ Peti- tigner’s employ ees. Pots A CE Conflict with Judgments of this- ‘Court. This-Court had before it in Western. Union Telegzaph Company v. Lenroot, decided January -8, 1945, basically a similar question in denying the attempt of the respondent to hoit-that the telegraph cotnpany had violated the Fair Labor Standards Act by the employment of minor children ‘ to collect and deliver telegraph messages. After an exhaus- _ tive review of:'the legislativé history of the Fair Labor ‘Standards Act, the Court concluded that the telegraph mes- sengers, in collecting apd delivering the telegrams, did not ‘‘Produce’’ any goods in commerce and that in.fact the telegrams themselves never entered commerce, but only | ’ the electric.impulses which ticked out the messages written . by othérs on the telegrams. The Court there said: = ‘‘The Government contends. that in defining ‘pro- duced’ the statute intends ‘handled’ or tworked on’ to mean not only handling or Working or in relation to - producing or making an article ready to enter inter- | state transit, but also includes the handling or working | ‘on which accomplishes: the interstate transit or move- °- . ‘ment. in commerce itself. If this construction is” adopted, every transporter, transmitter, or mover in - interstate commerce fs a ‘producer’ of any. goods he . -earries. But the statute while defining ‘produced’ to. mean .‘ handled’ or ‘worked en’ has not defined ‘han- - died’ or ‘worked on.’ These are terms of ordinar ‘speech and mean what. they mean in ordinary, inter- ‘course in this éontext, They setve a usefal purpose when read to relate tovall steps, whether manufacture or not; which-lead to readiness for putting goods ‘into the stream of commerve. One who packages a product, or. bottles a liquid, or labels, or perférms any number of tasks ‘incidental to preparing: for shipnient. might otherwise escape’the Act, for in a sense he neither’.- ~ Manufactures, produces, or mines the goods, We are clear that ‘handled’ or ‘worked on’ inelndes every kind’. of incidental operations preparatory to putting. ‘goods “>, inté the stream of commerce.”? he It seems clear that the repair, reconditioning, or rebuild- ing of electriéal motors or other electrical ‘appliances by petitioner’s employees for use of employees of petitioner’s _ customers in producing, handling or working. on goods to | | be placed into the stream of comnierce is not on the part of petitioner’ 8 ban adic the “production,” ‘handling’? 20 __oF ‘‘working on’? the products which were later placed in : 7 the gtream of éommerce—any more than was the collec- tion and delivery: of telegraph messages the ‘‘production,”’ ‘‘liandling”’ or “working on’’ such messages for commerce. The electrigal appliances repaired, reconditioned, and/or rebuilt ‘by petitioner’s eniployees no more entered com- merce tham did the messages in the Western Union Tele- “graph Company case. . While in the histances of some 32 of petitioner’s: approxi- - mately 1,000 customers the electrical appliances repaired by petitioner’s employees were probably used to some extent in some of the processes of preparing other goods for the stream of commerce, yet such 32 quatmere were not ‘“producers, manufacturers or processors’ ’ of motors. and other lectrical appliances worked on by petitioner’s employees—the word ‘‘thereof’’-in Title 29, Section 203. .’ (j) U. S. Code obviously having reference to the goods which went into commerce and ‘not the consumer godds, such as electrical appMances used by the employees of such customers in producing such other: goods _ Peeperegery to. putting goods into the stream of commerce.’’ - ‘This point seems to have ‘been controlling in the opinion and judement of this Court in McLeod v. Threlkeld, 319 U.S... 491, where the cook sought to.be brought under the terms of the Fair Kabor Standards Act prepared food for em- ployees who were under the Act as maintenance-of- way . employees: of a railroad ‘company. The Court. there ad- titted that food was necessary, for the cmiprer eee engaged in commerce but: said: ete Yl “Tt is not important whether the employer, in this case the contractor, is engaged in interstate commerce. It is the work of the employee’ which is decisive. Here the employee supplies the personal needs of the main- tenance-of-way men. ie | Food is consumed apart fecan their work. The fur- nishing of the board seems to us as remote from com- merce, in this instance, as in the cases where employees © 3 supply themselves. In one instance the food would be as necessary for the continuance. of their labor as the _ > other. - “Weagree with the sunebaclaiin of the District Court and: the Cireuit Court of, Appeais that this: employee . is not. engaged in commerce under ‘the Fair Labor Standards Act.’” “The stipadation ‘of facts clearly catahtish: that petitioner ml . operates an electrical repair shop, serving all castomers seeking its service and that all but a very small part of _its business is wholly’ ‘intrastate ' in character—most of it being for customers in the City of Baltimore. It: certainly cannot be held that by. such local: and intrastate sales and serviees the petitioner. is engaged in. commerce within the terms of the Fair Labor Standards Act. 7 And we do not so read the opinion of the Cirenit Court ‘of Appeals. That opinion holds that petitioner’s employees - come within the terms of the Fair Labor Standards Act because the motors which they -repaired and the wiring - which, they performed in the petitioner’ s§ shop or in. the plants of petitioner’s customers were used by some 32 of such customers. to produce . goods for commerce, and tii 99 per cent of the balante of 968 customers were commercial and industrial concerns and ‘not private parties. Otherwise the court beléw does not attempt*to determine why such usé by the small number of 32 should require the other 968 customers of the petitioner to pay the increased costs neces- sitated by petitioner’s compliance with ‘the Fair Laber Standards Act. .- ‘Yet in‘addition to the facts that the electrical appliances owned by petitioner’s customers on which -petitioner’s.em- ployee’s worked had been removed from the stream of, commerce and were in the possession and use of the ulti- mate consumers, as were the garments in the above cited Phillips. administratriz, et al@gase, the work on the motors and other electrical appliances were as remote from the goods produced by .the 32 customers of petitioner which 3 ® . oF. £ 9 22 3 | - went into. the stream of commerce as was the food eaten by the rights-of-way men in McLeod v. dbealkeld. Further. such electrical appliances no more wenf imerommerce than ' did the physical felegrams it in the Westérarv nion piecneti at te i case. o- It is clearly apparent fr rom the latter case, and the K Seok: baum case that the work performed must have a direct rela-_ tion to the ‘goods actually produced, for commerce and not ° some remote relationship such as repairing an electrical “motor which may or may ot: be used for the performance of some part ‘of a production process and even if used, must °° be used by others after having been supplied with electrical _ power or impulses generated by some third. party. This . ‘Court has pointed out beth in the Kirschbaum and Western: “Union Telegraph Company. cases that the Fair Labor Stan- “dards Act is. not as broad as the National Labor Relations Act and that simply: ars affecting’: interstate cgmmerce is not. sufficient to make out a case under the Fair Labor Stand- ards: Act. This: Court said i1. Higgins v. Carr Brothers. “ Company on this point that: ‘‘# that connection it is argued that: respondent i is in competition with wholesalers doing an interstate busi- -néss-and that %t,can by underselling affect those busi- nesses and their interstate activities. As we indicated in Walling v. Jacksonville. Paper Company that argu- ment would be xelevant- if this Act had followed the +. ‘pattern of other federal legislation such as the National °° + Labor Relations Act and extended: federal xontrol to business ‘‘affecting’’ commerce. But as we pointed out ‘in A. B. Kirschbaum Co. v. Walling, 316 U. 8. 517, this _ aci did not go so far but was more narrowly confined. sek This quotation from the opinion is a sufficient answer to ’* ‘the suggestion contained in the opinion below of the Circuit _ * . Court -of Appeals . that if the repair work performed by © petitiongr’s emplévees had been performed by the em- - - ployees. of: fite customers 'of petitioner producing goods for ‘commerce, such employees of petitioner’s customers would : surely ~ been under _ Fair — Candaeds Act, and_ ° . eee, Se hence petitioner’s ‘employees were, ‘too. .The cooks cn thie dining cars of the railway company fer which the cook pre- pared the meals in MeLeod v.. Threlkeld were doubtless in commerce to the same extent as the right- of-way-mien. » Also. - in thé Kirschbaum ease this Court pointed out that the Fair Labor Standards Act did not go to the extent of covering employees whose services merely affected interstate COi- merce. eee ‘ > Farther, if the plant cauployete of petitioner's s ctaleanies : who might, have repaired the efeetyical appliances were covered by the Fair Labor ‘Standar Act—and as to that we @xpress: no opinion—their additional wages ‘could be added as a part. ef the price of the goods produced by their “ employer for.commerce and passed{éh to the ultimate con- sumer, whereas here-there. is a poi t. beyond which peti-— tioner’s péiees’ for repairs, ete., -6¥ electrical appliances cannot go with any hope of securing such work from these ‘plants having maintenance electrical employees. (R. 71-95). It is this’ and other conditions which- led Congress not to go as far i in the Fair Labor Standards Act as it did in the National Labor Relations Act. We think the follow- ‘ing language of the Court in the K irschbaum case is‘an apt reply.to the court below, namely : If the work of the- employ ee has only thie most ten- wo relation $6, and is not in any fitting sense ‘neces- sary’ to, the production, it. is immaterial that their activities would be sabstantialtly the same if the em-— s ployees worked directly for the producers of goods for. . . commerce,’’ . t re 4 \ This should surely: be true where but 32 out ofa total of - -a 1,000 customers are.the only ones shown‘b¥ the reeord © to have.been engaged in producing goods for comineree, and even that showing has not been clearly. made. An intrastate customer may be both the ultimate con- sumer. of tapital goods—such as the electrical motors and . wiring in this case in the instanée of 33 of petitioner’s eas- - tomers—and also a manufacturer or, j producer of. other » sash for commerce. 24 : 7 7) : o | I. | | The Petitioner’s Businéss Is a Retail and Service Estab- lishment the: Greater Part: of Whose Selling” and . Servicing Is in Intrastate Commerce. MS _ While it is stipulated that the petitiontr held an exemp- -& tion from city taxation for certain of its machinery, this | _ exemption was under a 1918-19 city ordinance which is printed as-appendix ‘“B’’ fo ‘the appellant’s brief in the | court below, (R. 34-35). This exemption extended, among other things, to ‘‘mechanical tools, or implements, whether worked by ‘hand ‘or steam or other motive power, machinery. ’? Petitioner’s dies, lathes, etce., used in- its repair shop clearly fall within this description and nowhere . “jn-the stipulation ‘or other evidence in the record is there . any suggestion that. petitioner operates a manufacturing plant. “All of the evidence is to the effect ‘that petitioner - operates. A ‘repair: shop and makes seme sales therein, at * retail of new and used motors and incidental electrical supplies. / The court below - brushed ‘ diside, without comment, any suggestion that the petitioner was-a manufacturer of elec- ‘trical equipment for interstate commerce and, as above > stated, grounded its ima on the point that petitioner’s empleyees worked on electrical equipmerit used by 32 custo- mers engaged ‘in mai™facturing goods for commerce and that 99-per cent of the balance of petitioner’s 1, 000 custom- ers: were ‘‘commercial and. industrial concerns.’? ~The 33 concerns produced but $51,013.20 of the petitioner’ 8 gross aggregate income: of $251,833.35 ‘for the period and cer- | "tainly the sum of 33 arid $51,013.20 are not the ‘greater part”? o£,1,000 and $251,833:35, ‘respectively. €R. 10,13). =. - Out of the gross return of $251, 833.35 on all of the busi-, ness of petitioner for the &tated period, but $77,784. 76 : resulted from. sales of new and used motors and $4,980.06 resulted from eash sales of material and: motor perts. (R. *. 10). “The latter two items are -not the “greater: part”? of the gross aggregate income from ‘‘service’’ and also they: ‘show thatthe petitioner is in fact a retail establishment in addition to being a serv icing eStablishment. The stipulated facts further show that for a typical period the sales to customers of other states than Maryland aggre- ~ gated but $1,020.00 and the testimony of Mr: Stozenbach, — president of petitioner, is undisputed that during the entire year of 1941 but six sales were made to residents of other states than Maryland and that three of ‘such sales were over the counter in petitioner’ s shop in Baltimore, with the pur- . chasers ‘hauling the purchases aWay with them. (R. 65-67). It. is-thus self-evident that the ‘‘greatér part’ of peti- tioner’s sales and services were wholly intrastate and even intercity. (a) (2). Spe cifically provides that its terms ae not apply with respect to: \ 3 “*(2) Any émploye ee éngaged i in any , retail or service establishment the greater part of whose nelling or serv icing i is in intrastate commerce. = a If there was ever an establishment which met this statu: _ tory test, it is that of the petitioner. It is as plain as‘a pikestaff- ‘that the petitioner is wholly engaged in a retail - sale and servicing business and that this busizess-is almost wholly intrastate. , ~ Even if petitioner does ans as its customers some 32 or 33 concerns engaged in ‘‘producing”’ goods for com- merce, with 967 or 968. others not doing so, ‘the 1e sales and service to such 32 or 33, are intrastate transactions to the ‘same degree as are intrastate the sales and iitrastate servicing to the balance of the 1,000 customers. There is nothing in the plain language of the statute which would nullify. this exemption, or exception by the mere sale ‘at retail or.servicing of a concerti which produces other‘ ‘goods, different from those produced by petitioner, in commerce, gtd The Fair Labor Standards Act (Title 29, Sentian 213 0. 26 or which is a commereial_or. industrial concern. The. repair of an electrical appliance or rewiring of a faetory to the extent of rearranging an electrical motor does not consti- _ tute the production of other goods i in the customer’ 8 plant for commerce. : The Circuit Court of Appeals below had _ previously. _ adopted in Guess v. Montague, 140- Fed. (2nd) 500, and it ‘applied here the terms of a regulation (R. 47-53) which had been rejected. as not iti conformity with law by the Circuit Court of Appeals for the Sixth Circuit in Lonas v. National Linen Service Corporation, 136 Fed, (2nd) 433,15 A. L. K. 697, certiorari denied, 320 U. S.'785. The court there said: “**The Administrator, basing his argument upon In- | terpretative Bulletiiy No. 6 issued December. 1938 and. revised June 1941 by the Wage and Hour Division of the Department of Labor, contends that the exemptions . in See. 13(a)(2) are limited te establishments retail - in charactcr whether they sell godds or services. This view is based upon what he conceives to be drawn from legislative history of the Act and the grammatical con- struction ‘of the exemption. ‘section. Sifee the related terms are coupled in the same’ sentence and are used in the disjunctive with the terms ‘retail’ and ‘service’ both modifying the word ‘establishment’, they refer ‘to employers who deal directly with private.consumers as distinguished from commercial and industrial eus- tomers. In ‘other words, the service establishment ex- emption extends only ta those establishments having the characteristies of retail Stores, and the defendant’s business is not a retail service. establishment because 60% of its-eustomers are. industrial or business concerns. > = : ‘‘We find no support for this interpretation in the language of the exemption section. Two enterprises are ies S ‘ { | &: a » ‘ ; es » i" s ’ \ a 7 Ar \ : : ; { \ No. 6266. ‘A fingl objection to the-decisions below need not detain ; us Jong. The petitioners’ buildings cannot: be regarded as” ‘service estabiishments’ within the exemption of sec. 13(a) — (2). Selling space in a loft building i is not.the equivalent of selling services. to consumers, and, in any event, the ‘ greater part’ of the ‘servicing’ done, by, the petitioners here is not | _ in intrastate commerce. The suggestion that the Act, if applied to these eniployees, goes beyond the bounds of the’ commerce aes: is without merit. ” _ . See also an ee ee Thre lk-ld, 319 U. S. 491, 494, see’: ‘Hanson vy. Lagerstrom, 8 boo 133 F. 2d 120; Consolidated Timber, Co..v. Womack, 9 Cir. 132 F. 2d 101 y Walling v.. New Orleans Private Patrot Service, 57-F. Supp. 1433 Lo-. . — v. American Trust Co., 45 F. Supp. - 139. © a a ‘hed we do not think that MK company can be held a retail or service: éstabli -hment within the meaning of. the. aet. The labor of its employ ees was performed almost alto- - - + eoneerns, where the cost of the service would not be ab- sorbed by- ‘the one to w hom they were rendered but would ‘ be passed'dri as a part of the price of. the produet. ‘The whole policy of the act is to bring, employees rendering — this sort of serviée under its provisions. Thus in sé¢: 3(i),- 29 _— seriall on whose petunia for commerce : gen after their: delivery into the actual daar posses- sion ‘of. the ultimate consumer thereof: other than a pro-" " ducer, manufacturer, or-processor thereof.”’ (Italics sup-.’ plied). This throws light upon the sense in which the words ‘‘retail and service establishment’’ are used and indicates’ very clearly that they have application to’ establishments furnishing goods or services-to the ultimate consumer, who * ‘met by the. ahomaly arising from such an interpretation— © — gether in rendering service to.commercial and industrial ~ — . —-34 - does not expect to pass the cost on to others as a producer, manufacturer or processor. As we said in Guess v. Monta- " que, 4 Cir. 140 F. 2d 500, 503: . “In Bracey v. Luray; 4 Cir. 1 38 F. ad 8 8, this ais plecided; we hold that a retail establishment within the meaning of’ - the exemption is one which sells in small quantities to tlie ultimate consumer, ‘n the principle noscitur a soctis, the ‘service’. establishment contemplated by the: exemption must be of the same sort as thé.‘retail’” establishment therein - referred to, i.e, it must be one ‘selling sérvices to: con- ‘sumers’, and this is the clear intimation of elie geod * Court.°A. B. Kirschbaum Co.a. Walling, 316 U.S. 517, 526,- 62 S. Ct. 1116, 1121, 86 L. Ed. 1638. As. suggested by the _Cireuit Court of Appeals of the Second Circuit in Fleming V. Arsenal Building Corporation, 2 Cir. 125 #. 2d 278, 280, we think that the exemption ‘should be limited. to: those who serve consumets di-ectly, like tailors,. or garages, or laundries’. Other illustrations of service: establishmenta within the meaning of -the statute have been given: as ‘barber ships, beauty parlors, shoe-shining pariors, clothes. pressing clubs, laundries; automobile repair shops, or the - Jike.’ Wood v. Central Sand & Gravel Co., DA. 33 F. Supp.. 40, 47; Fleming v. A. B. Kirschbaum Co, 3. Cir. }24 F, 2d 367, 572. sia Le a In Br acey v. Luray, supra, we peinted out that the exemp- tion was not contained in the act as originally drafted but | was. inserted to, make clear that/the act would not apply to those dealing. with the ultimate. consumer. We said: ‘‘The exemption was not contained in the bill as originally introduced into: Congress. 8. 2475, H.R. 7200, 75th Cong,, - Ist Sess. May 24, 1937. It was added by an amendment, the | purpose of which was to make clear that the act would have no application to ‘retail dry goods, retail butchering, gro- cers, retail clothing stores, department stores’, lecated near _and making occasional sales across state lines. 83 Cong. * Ree. 7437-7438. Walling v. American Stores Co., 3 Cir. 133 F.2d 840, 843.”?. 2, The services rendered to producers of goods for inter- state commerce in the installation and repair of’wiring and the ee servicing and reconditioning of motors are suf- 35 eae "ficient without mere te bring the employees’ of the company _ under the act. As'to the rest, its business consisted in the ’. sale of new motors and the reconditioning’ and salé of second hand motors. This business was clearly not that of -a retail or service establishment within the meaning of the act. — Super-Cole Southwest Co. v. McBride, 5 Cir. 124-F. y 90 ;, Guess v.. Montaque, supra. ; ine ; The case is-fiot distingusshable in principle, although there are a feW minor factual differences, from that-which was before us in Guess v. Montague, supra. What we have is not what anyone would think of -as a rétail or service establishment, like.a grocery store or a barber shop, but an electrical machinery repair: shop, whi¢h was. engaged in ~manufacturing to the extent that it rebuilt or recofiditioned eleetrical machinery. A latge part of the services rendered by.its employees were on the premises of its customers, and praptically all of these were in furtherance of the produce’ tioh of goods for commerce. and were: of a sort which, if \ rendered by the employees of the eustomers, would.unques-.. tionably have brought them under the act. The sales which it made were not ordinary retail sales to consumers, but sales of machinery to.be used for purposes of. production. Tt is not clear that; if the work done by an employee is in. interstate. commerce of in the production of goods for interstate commerce, section, 13(a)(2) can ever have appli- eation. See note 6 to MeLeo# v. Threlkeld, supra. Certainly -, it can have no application to a ‘ease such as this. | We have not overlooked the decision in Lanas.v. National . Linen Service Corp., 6 Cir. 136 F. 24.433, and Martino v. ~ Michigan Window Cleaning C'o., 6 Cir. 145 F. 2d 163; but,. if these decisions are accepted as sound law, we think they are clearly distinguishable from the ease at bar in that the services here were more clearly in furtherance of the pro- dtiction of goods’ for. commerce and the establishinent is more clearly not a retail @r servise establishment within _ the meaning of the act. Cf. McLeod v. Threlkeld, supra. The drawing of the. line between what does,and. what does not fall under the-act is not always an easy matter. The cases have been collected. and classified in the note te 150 A.L.R. at p. 700 et seg. There can be no question, we think,-but that the clear weight of anthority as mirrored by these cases supports our conclusion that the company here is subject. to the dct. . |» ; . ; eae : | Reversed. . @ . j 7 Before: % 3 , : ° 36 7 { . = Exhibit “B”. ! - UNITED STATES, CIRCUIT COURT OF APPEALS ‘For THE Seconp Circu iT be : No. 78—October Term, 1944.. | (Argued November 1, 1944 Decided January 9, 1945.) Danan: Mavup PHILLIPs, ‘as Administratix of the. goods, ..” chattels and credits of Cutrrorp R. Puiups, deceased, . -Joseru Bonvra, Tony Zv mMo}Foxy SaLapino, CHARLES * SALADLNoO, Prmup Perri, ALBERT JETT, : Danny Fanto; . Tuetma.Doveras, Ava BERKELEY, individually and on ~ behalf ef all other employees of defendant ‘similarly situated, os . Plaintiffs. Appellees- Appellants, —against— Srar OVERALL Div’ CLEANING Lav NDRY CoMPAny, Inc. bee ay Defendant, ond fo AL , Service Launpry Corporation, — ra _Defendant- Appellant Appellee. os] b. Hanp, Citas: pa cae, ,s al by the plaintiffs and i one of the defendants. from a‘judgment of the District. Court for. the Southern | District of New York. Reversed and complaint dismissed. - Barney, Rosenstein, for: Plaintiffs- -AppelleesA p- ‘pellants.; “Charles R. Katz of. Counsel, Sidney S. Wolchok, on the brief. . Samvuet’ Prive, for’ Defendant- Appellant-Appel- lee, Levy, Kornblum & - Katz and Joseph Katz, of Counsel. — : _ Posner anv Fox, for National Industrial ‘Laund- 4 erers'and Cleaners: Assn:, Amicus Curiue. Cec Sis, ' for American Institute of Launder- - "+ ing, Amicus Curiae, Bass,. Berry & Sims, of | & Counsel. : This suit was brought: by t fe plaintiffs, as employees, Lillian Mand Phillips; Admi cia zach By been _— \ Circuit Juitiee. Mri ee cae e es : eS 2 re substituted for ‘her deceased husband who, was originally a party, to recover for theyeelves and for others similarly. situated overtime compensation and liquidated damages pur- suant to the provisions of §16(b) of the Fair Labor Stand- ards Act, 29 U. S. C. ‘A. §201. “It was at first only against — Star Overall Dry Cleaning -Laundry Company, Ine., but when the trial of the action was begun All Service Laundry , Corporation for whom ‘these employees worked as pressers _ “and manglers was, by-stiputation, made a party defendant... .~ The facts were stipulated and may be summarized as fol- _. lows: » : : , \ The defendant corporations have their principal atin of business in Brooklyn, N. Y.,: where Star Overall Dry - Cleaning Laundry Company, Ine., hereinafter to be ‘ealled .. Star, was doing the period covered by the complaint engaged ; in the business of collecting soiled linens, overalls, slacks, coats, pants, union suits and hoovers ‘and of having them Jaundered or otherwise cleaned.. It then returned them to its customers and was paid a fee for the service. Many, perhaps all, of tliesé garments were rented by Star to its customers but some may have been owned by the customers _themselves.- The record is not clear as to that and in our view it is intmatedial because all the garments, whether _ owned and rented by Star or owned. by its customers, had _. been delivered to the ultimate consumer before they were: _ collected by Star and worked upon by the plaintiffs. During the time involved in this suit 95% of Star’s business was done with customers within the State of: New York.and 5%. _ with people outside that state. Its business was done with — individuals to the extent of 82%: and 18% was ‘‘bulk’’,; a - term meaning that the soiled clothes were received in larger , bundles than’ those collected from individuals. The bulk | collections weré from many kinds of industrial, business and professional ¢stablishments. ‘Star did not manufacture. any of the garments. Mase o? ie eens geen, Substantially all of the cleaning, laundering and pressing _ of these garments -was done for Star by All Service Laundry _ Corporation, hereinafter to -be called All Service, which — operated a laundry whose business. was entirely with cus- tomers within the State of New York. Its work for Star amounted to 80% of ail its business.. The defendants moved to dismiss the complaint on the ground that the plantiffs were nofengaged in commerce or in the production of goods for commerce within the meaning of the Fair Labor Standards Act and on the further. ground - that the defendants were service establishments, the greater part of whose business was in intrastate commerce, which were exempt from the provisions of the Act under §13(a) (2). The motion of Star: was granted and the complaint was dismissed as to it without cosis. Judgment was enteréd - against All Service in favor of each plaintiff for stipulated , amounts without interest and for a reasonable attorney’ fee, the amount of which was stipulated. The plaintiffs and All Service appealed. | Cxase, Circuit Judge: ’ in Star was not the employer of the plaintiffs, it is dear that the complaint should have been dismissed as to it and no one now disputes that... It should be noted at the, outset that the plaintiffs were not engaged in interstate commerce _ simply because they performed part of the work involved: in washing or otherwise-cleaning and making ready for deliv- ery to Star garments which Star later returned to its inter- state customers as and when it saw fit to Co so. Whether an employee is engaged in interstate commerce for the purposes of the Pair Labor Standards Act depends not upon ‘‘ whether - .” the eniployee’s activities affect or indirectly relate to inter- _state commerce but upon whether they are actually in or ~ sq closely related to the movement of the commerce as to -be a part of it. Employee activities outside of this move- :-. ment, so far as they are covered by wage-hour regulation, are governed by the phrase, ‘production of goods for com- meree.’’® McLedd v. Threlkeld, 319 U.S. 491 - Nor do we think the plaintiffs were engagdd i in the pro-~ . duction of goods for commerce, Nof because their work was not “‘production’’ within the meaning of §3(j), for we shall assume arguendo that the trial judge was right in| holding that it was, but. because those garments were not | ‘‘ goods’? »within the statute because excluded therefrom by the provisions of §3(i) of the Act. What are to be. treated as goods within the Act is' there defined, and it is made plain that ‘the definition ‘‘does not include goods after their - delivery into the actual physical possession of the ultimate, ‘consumer thereof other than the producer, manufacturer, or ; processor thereof.”? - - There is no clairh and no proof that : AIL poervice was engaged in the production of goods for interstate commerce , ; ig exeept as it washed or otherwise cleaned garments collected .. ' by Star and delivered to it. Indeed; the Raed con-' 39 clusively shows that its other business was all intrastate. Nor is there any claim or evidence that any of.the garménts ’ which Star collected and delivered to All Service for clean-_— _ ing-had not previously been delivered into the actual phys- ical possession of the ultimate consumer. On the contrary © it is wk org that they were dirty, ‘used garments when collected by Star and that what All Service did was. to restore their cleanliness after they had™been used by the - customers of Star, the ultimate consumers from whose ac- _tual physical possession the garments had been taken. Cases - relied on by the plaintiff like Enterprise Box Co. v. Fleming, . 125 F. (2) 897; Hamlet Ice Co. v: Fleming, 127. F. (2) 165; and Chapman v. Home Ice Co., 136 Fy (2) 353,” dre to be- distinguished because the ‘‘goods’’ had not been delivered into the ‘‘actuai physical possession of an ultimate consumer _who was not also a producer, manufacturer.or processor.’’ The gtatute makes a clear distinction between goods which - “are being worked upon in one or more of the ways embraced within the statutery definition of ‘‘préduced’’ before they get. into the actual physical possession ‘of the ultimate con- sumér and after they have gone into such possession; pro- _ vided the ultimate consumer is not himself a producer, - manufacturer or processor. We think it. also clear that the ultimate consumers are the persons who wear-out these garnients and incidettally get them dirty while doing so. ° ' Congress did not attempt to-.regulate hours and wages to the full extent of its power so to-do. Kirschbaum Co. v.- Walling, 316 U. 8, 517; Walling v. Jacksonville Paper Co., . 317 U. S. 564. “The express limitations Congress put into the statute must be given-eifect even though it is a reniedial . Statute io be given a liberal construction. As this com- pletely disposes of the appeal we ‘find it unnecessary to = determine whether All Service was a service establishment exempt from-the Act by virtue of §13(a)(2). ; _,:. Judgment reversed and complaint dismissed. CuarK, Circuit Judge (dissentitig) : - ase The effect of the qpinion is.to make a special exception from the Fair_Labar Standards Act of all repairing and | reconditioning work done on goods owned by another. - Dif- ficulties may well develop as to the extent of this exception; thus are factories or stores ultimate consumers as to repairs or reconditioning of their equipment? Passing that, it seems .to me this interpretation of the Act must be .rejected for~ several reasons. It makes an exception quite foreign to re -; ' / ¢ f ve 5 v = : | 78 4Q ‘Si -any purpose of the Act and more or less in conflict or over- lapping with other recognized exceptions whose purpose is cléar, particularly the important one, so much discussed in this case heretofore, of retail or service establishments; it’ ‘finds the basis for such an exception in an unnattrat place. in the Act (in a definition of-goods for commerce of §3(i), 29 U.S. C. A. §203(i), not in. the ‘‘xemptions’’ provision of $13, which contains, inter alia, the exception for service’ establishments, nor even- as a limitation on the very ex- ‘tensive definition of ‘‘produced’’ of §3(j) to include ‘‘hand- | _ ling’? or ‘‘in any other manner working on such goods’’) ; and it gives what seems to me a clearly unintended turn to the words used in the definition relied on. : . In general, the definitions employed in this ‘* Definitions” - section are designed to carry out the broad coverage shown by the entire Act; witness the definition of goods in this _ -very provision as including a-consideable list-of things and | finally ‘‘articles or subjects of commerce of ariy character, or any part or ingredient thereof,’ as well as the definition ° -of ‘‘produced’’ already referred to. The obvious purpose of this particular limitation was declaratory; to make sure * that the other broad provisions were not, indeed, carried too . far; it.would not have been: necessary but for their extent; and it should take its color from them and,its immediate context, On the bare words of the other pevisions, goods already ‘in the home, the factory, the store, or the hotel would come within the Act, though ‘they were not-so in- ° tended. Much.of this limitation may be thought already ob- vious, though a carefully drawn statute would still be so . framed as to make these matters express rather than im- ° plied ; some of the transactions,otherwise included, however, would be much less obvious.- hus, the linen used in a hotel, the equipment. in-a store or factory; while being used on. the: premises by these respective establishments, would othrwise have fitted the definition: And the éonstruction - made reduces to insignificance the words ‘‘the actual phys- - ical possession of the ultimate consumer’’ and. magnifies the word ‘‘after’’ (‘‘after their delivery’’); it would be more’ natural to hold that, if the goods. go out of the consumer’s °° * actual physical possession back into the stream of commerce, there must be a redelivery to him to make the provision apply. .I would award interest, Greenberg v. Arsenal Bldg. Corp., 2 Cir., 144 F. 2d 292, 254, and then affirm on the grounds taken below, D.'C.S. D. N. Y., 58 F. Supp. 238, oN), cerns 8 , Ble ‘ ‘ o af ; ia o | . 41 : But even if I am wholly wrong’ abdut all‘ this, I still should not want to make sé novel—and, for all we’ know, possibly far-reaching and administratively confusing—in- terpretation of the Act in quite so offhand a way. There ap- pears nothing in the past -history of the Act, or of its en- actment, to suggest it; indeed, the contrary is indicated, because the legislators’ diseussion called to our attention _ Was so directed to the exemption for service establishments, as well as the fact that the answer and the motion to dismiss below were based on that exemption chiefly, with the single other point, that the plaintiffs and the goods were not in interstate commerce. That explafns why this statutory pro- vision -was not-mentioned below, 55 F. Supp. 238, and -why ‘discussion centered ‘about the meaning and effect of Lonas v. National Linen Service Corp., 6 Cir., 136 FR. 2d 433, cer- - tiorari denied 64 S. Ct. 157, which all seem to have thought - was the important decision and which likewise ‘does not mention this statute. It also explains the limited attention ‘paid the provigion in ‘the. numerous briers filed before ius. The interpretation has no ease support; it is opposed to the’ - view. taken in Walling v. Armbruster, D. C. W. D. Ark., 51 - _ F. Supp. 166 (converting sedans into buses for their owners held. within ‘the Act), and seemingly in Slover vy: Wathen, 4 Cir, 140 F. 24 258, 259 (barges being repaired held ‘‘goods’’ within the Act); and it rejects the reasoning of cases such as Atlantic Co. vy. Walling. 5 Cir., 131 F. 24 518, 921, that the words relied on have ‘‘only the effect of placing a time and circumstance limitation ‘on the application of penalties,’’ or. Chapman'v. Home Ice Co. of Memphis, 6 Cir., 136 F. 2d 353, 355, certiorari denied Home Ice-Co. of Meng phas v. Chapman, 64 S. Ct. 72, and Hamlet Ice Co. v. Fleming, 4 Cir., 127 F. 2d 165, 170, certiorari ‘denied 317 U.S. 634, that they: apply only to, goods ‘‘ withdrawn-from further traffic og 9) Cir., 125 F. 24 897 , certiorari denied Evxiterprise Bor Co. v. Holland, 316 U.-S. 704, holding not exempt the making of cigar boxes sold locally to cigar manufacturers who used © them to house their cigars for shipment and sale, is either - directly controlling or else illustrates just the confusion ; ‘noted earlier as to the meaning of ultimate consumer which must result from this interpretation. At the Very’ least therefore,.J think the case should be reheard, after an invita. tion to the Waxe & Hour Administrator to present his views, sale.’? And a case such as Enterprise Box Co. v. LT ae a & ° . 42 | = "Exhibit “0”, Smpvtation OF Facts. | + Filed 2nd February 1944 \ as * It is hereby. stipulated and agreed by and between the. parties inthe. above-styled case, without waiving the right to introduce additional testimony upon the trial of this case ' as to matters\covered herein, as well-as all other matters, _and, further, without waiving the right to-object to the-intro- duction of all or\any part of this stipulation as \irrelevent - or immaterial! to \ssnes arising in this case, as follows: . ged in the business, of. buying and sell- otors of various types; of repairing, -* Defendant is eng ing néw and used _ reconditioning, and/rebuilding used moters ; and of installing ‘and repairing private, commercial, and industrial witing systems: The detaned character of the business of the firm -is as follows: : a Sn : . * (1) The relocation. and extension of wiring in systems a. already installed in private, commercial; and industrial establishments.. # : erg. (2) The repair. of private, commercial, and industrial *wiring systems. ee ° _ (3) The installation of wiring in new private, commercial, and industrial establishments. (4) Instalaltion and relocation of commercial and indus- trial moters, including the installation of necessary switches, wiring, ete. . dere eke . "aes (5) Sale of elec:rical materials and supplies over the counter, et | an cee. (6) Rental for periods of a month or less of motors, flood- . lights, compensators, ete., to commercial and industrial firms. 7 : q tae ies : ates 43. (7) Sale of new and used motors. (8) Reconditioning, repairjng, and rebuilding elect.ic | _ motors and generators imits shop and repairing motor and cenerators on its customers’ premises by removing old and - defective brushes, comniutators, armatures, stators, wiring, and bearings; anil by replacing said parts with new, re- worked, and built-in parts. es) Be tee. {9) The fabricating, when necessary, of shafts, brushes, and other motor parts in connection with its teconditioning, *. repairing, and rebuilding operations. | : II _ Defendant; as a matter of trade accommodation, oceasion- ‘ally sells motors to various dealers at special.dealers’ dis- counts, and the invoices.thereof are marked ‘*Dealer’s Spe- cial Discount, 10%—~30 Days, Otherwise Net,’’ and holds ‘itself out to the publie as being engaged, and does engage | in, commercial and industrial wiring, electrical contracting, and dealing in electrical motors and generators, for private, commercial, and industrial uses. a ee : : ‘Zan A.substantial number of the motors which defendant regu- \ larly sold, reconditioned, repaired, rebuilt, and relocated, and a substantial part of -the wiring which was installed, relocated, and repaired for various customers of the -de- fendant, as: hereinafter listed, were respectively used in the ‘production of goods- for interstate ecommerce. A substantial _ humber of the motors repaired, rgconditioned, and rebuilt were small motors, sach as those used for electric fans, drink | mixers, refrigerators and oil burners. A majority of work in® repairing and reconditioning motors in‘dollar volume | was done on motors used for industrial purposes, such pur- poses being the production of goods for commerce.. ° : In connection with its operations it had,.on November 18, — 1942, thé following typés and numbers of employees: | Office Employees. Noeatoaetctiontinaaianaanas = As ~ Shop Department |. - AOA At ae Foreman ree Trouble Shooters -. Mechanigg -_. slice pris Oieatlintiisiaditaiasieawie ED ries reba issc sth nisladLincih ch npemactinheboneteaaia Wiring Reeianaas StS ae eR el Se * ‘Mechanics hewitt acentingsiloineaiaionncntigipendiastishingieusivann 5 | 613463--44-- 4 11 Aa Rone ? _ ‘Among the duties of persons employecywithin the desig-. ‘ation ‘* Mechanies,’’ in connection wth the ‘repair and ~ rebuilding of.motors, are: eee shies Fees (a). making bearings, | ee (b) making and shaping shafts, (c) making contacts for controllers, - . (d). boring out«pulleys and couplings,. , (e) resurfacing commutators and winding stators "and armatures. ae i: 7 ae | The physical set-up of the plant is as follows:. ° Defendant oceupi “o : ies the front part of the first floor of 418 — West Pratt Street, Baltimore, Maryland, for business office, _ ' ‘drafting space for a-draughtsman, and shop for repair of : _ small electric motors, electric toasters, electric irons, and - similar appliances. In the rear of the first floor is the shop- ‘where all large motors, compensators, switehes, ete., are repaired or rebuilt; the oven for baking repaired and re-_- ': built motors; lathes, pulleys; and other equipment essential .to the operation of the shop. All electrical supplies and me terials sold. over the counter.or used in connection with | repair work are stored* on the first floor.. The rear of the iS _ second floor is used for the storage of old and new equip-- ment and sundry fabrication of carbon, brushes. Electrical motors and equipment prior to sale of same are stored in . . defendant’s warehouse at. 1418 Belvedere -Street, .. Defen- _. dant owns, this warehouse but rents the building at 418 } West Pratt Street. Re eas mie 4 45 _ For the purpose of rebuilding, repairing, and recondi- ’ tioning’ motors for its various customers, the defendant is employing the following machinery : three lathes, one drill press, and one shaper, with their respective tools, cutters, and other attachments ; vises, saws, emery wheels, a hydrau- lie press, two electric hoists and four chain falls, and other - fools and machinéry generally used in establishments of .this kind. ig coogi : The business and activities of the defendant are amplified and deseribed in the printed circular of the defendant, which ', is marked Exhibit A and annexed at the end hereof. ° _ The breakdoww of sales of the defendant for the period January 1, 1942, to October 31, 1942, is as hereinafter set. forth. Such breakdown is representative of present volume. and character of business. | ; ge . The designation ‘Shop or A Sales’ in said breakdown. | ‘means all inicome obtained as a result of the repair and_re- _ conditioning of motors worked on in. its own shop or on. _ customers’ premises, and includes labor ‘and material costs - for such oo mang Re ee a . fis The designatitn ‘*Wiring or B Sales”’ comprises income from work done outside of defendant’s own shop, and at its - respective eustomers’ locations, and comprises the repair . and installation of wire, fittir zs, and relocation and rear- rangement. of motors, together with incidental equipment. ‘The. designation Material or Storage Charge Sales”? _-covers receipts from the sale of new and used motors, gener- afors, ete. dat hs Sacks mg (quamaynde [won 99[2 saqo pun cojers 30) wey et": —_(eredes scjom queo puw sqejieywuy 70 Ajuo sows YsEd) soEs oM;pUEGosoH sO (poe PUB Mou GI0q BIO}OW Jo sojad B[es SepPNioN!) se[ee 200K 4°08 ~~ (toour 0° ayeder wo e909 {Ha~wUI PUY s0qRI wopNoU}). soF¥e doug c+ Fe he (#909 swAwU pue joqe; Surpnjouy) sajes Buja14 SUOPwoyserE[D 19Bpay teinak Iedouas (weoive poss) expo, teiouss wos; poqicoewen sores troy guecwsg - OO - 969" * Bee get eR. uzeees avi - QCCRSTNS OORT ZOLIT'S Su'sPP'S geRLe'Rs LI-ZE'6D 00°s92"t “o0°gen"t8 90°086'F ==. goroREEs a) ) “88 BLzZ9'99 O0'eLE'T 88'°9PE'T rie —— zooap’s = , IW 9T0'Se Ore BB90r'L8$ 86698 sree (MOL seUeY | $2188 YSUD so[We oSIWYD soTTe _.Gf,, SOLES ,.V,, 01098 20 20 Buy aodoyg ~- [eee ‘ aa (anop preg] o : apatite wae 1eL—ster' FB PO % BIEL ‘I “une porsed oy 40f 82,08 fo oe go - & : 47 i Wo In the course of its activities, defendant accumulates and — sells to local junk, dealers approximately 12,000 pounds of scrap metal annually at an annua! sales value of approxi- mately $500.00, which scrap is ultimately melted down and shipped in interstate. commerce. - This’ serap metal is ob- tained from. junked parts of purchased old mo rs; from \; unusable parts; and from borings and filings of recondi- - _ ‘tioned, repaired, and rebuilt motors resulting fro cutting and Shaping parts for used motors worked on for‘d fealiant - and defendant’s customers. All the inside mechani form work in every: work-week, resulting in the accumula- tion of such ju te ho ‘\ 4 ne \ Nie va ‘from June 30; 1941, to October 31, 1941, the defendant per- — formed work inthe State of Maryland for eleven customers outside said State, in the total amourit of $1,210.15.) '*+[Nore: This paragraph contains a schédule showing that ‘during the calendar veah 1944, the defendant made Six Sales of rebuilt motors to customers outside ‘the State of Mary- land, fora total dollar voluige of $1,020.00.) di IX. | Fol y cs 1 \ ies ea As of November 1, 1942, defendant had approximately | 1,000 active accounts as reflected in\its Accounts Receivable. Ledger, 99 percent. of which Are commercial or industrial. firms, which percentage is applicable.to the remainder of - said 1,000 active ‘accounts as of said date »f November i, For the period J anuary 1, 1942, througli October 3f, 1942, defendant’s larger and most active accounts were as follows: — f° 8 per- ee ? * a G t : 48 i a . “—_ Wir- . ; “A” Shop ing “Motor” Total 1: The American Ice Co. _... apaneyen-diet ome 2396.47 @ 828.81 3g 28.30 §$ 1,092.58 S. acenen Oe. 3! ON 136.32- 48.09 204.32 8. Anchor Post Fence Co... 146.00 | 836.09 - 429.56 1,404.65 4. Acme Stvel Engineerirg Co. 594.35 sl 149.56 744.41 5. American Smelting & Ref. Co. » CAO bore , 266.70 2,634.95 i ON OR oa ie ie 491.95 : 3.48- 495.41 7. American Brake Shoe & Foundry Co.’ 376.48 Nuke 274.48 8. Ameritan Cider Vinegar Co. Ss; s(242.68 536.61 161.46 940.73 9. Svein eS a an wee 2,368.06 2 oe e olaonenr That the Chesapeake and Potomac Telephone Company is engaged in interstate commerce, and that the remaining companies on said-list, With the exclusion of ‘the American ‘lee Company, were engaged in the production of goods for- commerce as defined in Séction 3 of the Fair Labor Stan- dards Act of 1938, shipping at least a substantial portion of their total production to points outside. the State ‘of Maryland. : ae 5 rae De: eee ME sees That as of November 1, 1943, defendant had ‘in its shop approximately 400 motors awaiting reconditioning, repair- ing, of ‘rebuilding, a substantial number of which were en- gaged in the Pepauction of goods for commerre. yee ae ‘That the current activities of defendant and its employees are substantially the same as those of the prior periods as hereinbefore described. oes : sees en = ae That defendant holds; ‘and is currenily operating under, a certificate of exemption from taxation on miachinéry as. a _ manufacturer from the City of Baltimore undér Ordnance 462, approved March 6, 1919. Jeng ws PROC ee Eee eam _. That in the years 1938 and 1939, defendant failed to com- — _ ply with Section 6 (a) {1) of the Act; thatsin the vears 1939 - and 1941, it failed to comply with Section 6 (a) (2) of the ° “Act ; that it has failed to comply. with Sections :7 (a) (1)-and 7-(a) (2) of the Act and is currently failing to comply with Section 7 (a) (3) of the Act. ou cats i. Defendant has not fully complied with the provisions of ‘Section 11 (c) of the Fair Labor Standards Act of.138 nor | complied with the regulations prescribed by the Administra: tor, issued under the authority of said Section 1] (ec): Dated January 31,1944. *" Anan ; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0022%3A2. Public record. Not legal advice.