# Memorandum for the Respondent — Roland Electrical Co. v. Walling > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0022%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum for the Respondent - **Published:** January 1, 1946 - **Citation:** 326 U.S. 657 ## Text fa oe: a a e PY ciated merge Se eaeerenas * ' ie a ed ‘ + we b . free” ¥ 5 . Oke -- ‘ Y, 2 ox 4 uv. % $ : 6 . ; Ce rn “ Fp ! a . r] e ‘ 5 ; | VAR $0 1965 iar ; CNAs Tu ee a : inci nee ney Y's oun pane og * , ? ‘Of1083 f 4 oe ae ae 7 Inthe Sepreme eure heed Stes ‘Ocroner TERM, bade a . woe: 3. Tue Rotann Exronieat Co., PETTTIONER vy, ; Axle 0 . . iL. Akeioatan Watiana, nf Ea TOR: OF THE Wace: ann Howk, Division, Ux EP TARE Dr-. PARTMENT OF Lasox’ ey . i: / % ~ ” . el : ‘ a) : ON sah YON FOR WRIT oF CERTIORARE } 10 THE UNITED STATBBS CIRCUIT COURT OF APPEALS FOR THE FOURTH ie t CINE. : Fe 2 | oe : annxonamine re FOR RESPONDENT Es tA | ir a : ae a Oe INDEX ; -Page Opinions below paca i ob ath wi Seder abi wk ee eps a - Jurisdiction... ..-..,.. hasta okie titel ob aber wll se Sad comah seseoblen adi shan x “Questions presented... iseiies eiabie Lan. Rethumascire Gitanews van 2 Statutory provisions involved... / pees aie sie a ‘ina hatin ee v: Dinenstien.... 200.05. 2: hd RNs Siivined eke wish peste icks ete. eS CITATIONS es Miter & Oo. v.: Wantock, 923 U. ERE aan toe 6 - Consolidated Timber Co. v. Womack, 132 F. 2d 101_..___- oes J _ Fleming v. Arsenal Bldg: Corp., 125 ¢. 2d 278, affirmed sub . A nom. Kirschbaum Co. v: Walling, 316 U.S. 517... .- 7 Fleming v. A. B. Kirschbaum Co., 124 P. .2d 567, affirmed a Te a Se ‘Kirschbaum Co. v. Walling, 316 U.S. 817.” RAGA Mtge ee -@ 5,7 Lonas v. National Linen Service Corp., 136 F. 2d 433, certio- Shame rari denied, 320 U. S. 785. -.__..-.--. MS fost pe a McLeod v. Threlkeld, 319-'U. 8. 491... ---- 0. 6 Martino v. Michigati Window Cieaning. Co., 145 F. 2d.163, certiorari denied, No. 849; decided February 26, 1945... 8 New Mexico Public Service Co. v. Engel, 145 F. 2d 636__... 7 _ Phillips v- - Star Overall Dry Cleaning Laundry Co.,'8 Wage (PE PIII AEE Gia s Rios ba eakceyiebnkbs hedeen oat 6 Phillips v. Walling, No. 708, “decided M h 26, 1945. ___ 7. ‘Reynolds ¥. Sait River Valley Water Us ¢ Aisn., 143 F, 2d —~ $63, certiorari denied, No. 439, this Term, decided. No? iy AI Ps Ca ante aus wnt hie nie iemiih eal Le ae Schmidt v. Peoples mere Union of Maryville, Missouri, ek 2p 8) Re epetee gcse pe 4 EYES REESE Super-Cold Southwest Co. v. McBride, 124 F. 2d 90... watieec: ' Watling v. Consumers Co., decided March 20, 1945 (C. A. A. 7) Walling v. Sondock, 132 F. 2d 77, ‘certiorari deniéd, 318 6 ES Ws Pelican ek pital paleo la Sik nae ne ¢ Walton v. Southern Package Corp.; 320 U..S. 540. Sagncwds ~ Western Union Telegraph Co. v.. Lenroot, No. 49, decided *. . ‘January 8, 1945..... 7 =. giemca Ge: OLE ae 6 White Motor Co. v. Littleton, 124 ¥. “da 92. Cpa IRS See ys 8 | Statute: . Fair Labor Standards Act of 1938, c. 676, 52 Stat. 1060, 29 U. 8. £. sec. 201, et seq. Sot i sat ; Section >: | Wenn Se Sse hh ep esac i preenedesee. 2 iodin 81D. nin siowe apa ajea ences knees. ie Beetion. 13 °(a) (2)..-..----.----------------+--- 3, 5, 7,8 6g a) 637565—45 ; Saeco | - OcronEr TERM, 1944 7 No. 1033 THE Rodakn Eurersicad Co., PETITIONER \ ¢ i v. ee L. Mercaioe WaLLina, Avagarisrasror OF THE Wace anp Hour Division, Unrrep States De- “PARTMENT OF LaBor a ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES. CIRCUIT COURT OF APPEALS FOR THE sigeat in CIRCUIT "MEMORANDUM FOR — ee : OPINIONS BELOW ; The opinion of the District+Court (R. 24-33) is reported in 54 F. Supp. 733, The opinion of the Cirtuit Court of Appeals (R. 98-104) is reported -" in 146-F, 2d 745. os 2 JURISDICTION 4 The ‘imeenk of the Circuit Court of bok “was entered on Jannary Ry 1945 (R. 105). The . petition for a writ. of certiorari was filed on ~~ Mareh 10, 1945. The jurisdiction of this Court. oS -(1) *- eal possession ‘of the ultimate consumer thereof es is invoked under its Rule 38 (5) (b) and under. section, - @) of the Judicial Code, as amended. | QUESTIONS ‘PRESENTED L Whether the repair ‘and ° reconditioning of . ‘electrical motors and equipment used in the pro- daction of goods for ommerce is ‘‘a process or - occupation necessary to the. produc tion” of goods — - for commerce within Section 3 (j) of the F air Labor Standards Act. ‘, Se Whether. such work is some wi the clause in Section 3 (i) defining “goods” as not in¢luding “goods after their delivery into the actual physi- other than a producer, manufactur er or processor thereof.” : : 3. “Whether a shop which repairs, woud tions | ‘and sells electrical motors and equipment pri-— . marily for. commercial and industrial firms is @ retail or service ‘éstablishment’’ withih » the exempéion | provided by. Section 13 @) (2) | of the Act. aati oa STATUTORY ‘PROVISIONS INVOLVED } The statutory provisions involved are Restione 3\(i) and (j) and 13 (a) (2) of the Fair Labor Standards Act of 1938, ¢. 676, 52 Stat. 1060, 29 . U.S. C. sec. 201, et seq, which read as follows: , Sec. 3. As used in this Act— es sae : - * * 4 wee ose eo ee “Goods” means goods (including _ and marine equipment), Asst, prod- a re tee : nes ucts, eommodities, merchandise, or articles . or‘subjects of cofnmerce of any character, or — any part or ingredient thereof, but does not _. consuntép thereof other than a producer, : purposes of this Act an employee shall be. 2 include goods after their delivery into the actual physical possession of the ultimate manufacturer, or processor thereof. theredt. (j) ‘‘Produced’’ -medns produced, manu- \ factured, mined, handied,‘or in any other manner. worked on ‘in any State; and for the deemed to have .been ences in the pro- c other manner working on such goods, or in duction of goods if su ployed in producing, manufacturing, mining, handling, transporting, or in ‘any any process or. occupation ‘necessary to the ’ production taarect, in any State. » : x * * Src. 13 i The provisions of séctions ° . 6 and a ‘shall not apply with respect ‘to * #*..* (2) any employee engaged in any eis or service establishment the greater part of whése selling or servicing is in . ‘intrastate commerce ; ‘ * * STATEMENT | Virtually. all of the relevant facts have. been stiputated (R. 6-14). Petitioner holds itself outas. - being engaged in the business of commercial and industrial wiring, electrical contracting, and deal- .ing in electrical niotors and generators, for pe ‘vate, commercial, and industrial uses (m 6-1). employee was.em-. , . * — . a e Petitioner’s prbiedial activities fall roughly” into ¥ three classes: (1) Repairs reconditioning, and re-__ building of electric motors, which accomated for 27.42 percent of petitioner’s gross income’ during the first ten..months of 1942 (R. 9, 10); (2) in- : stallation, relocation, extension, and repair of . électrical wiring systems which aceounted for 35.29 pereént of its income (ibid.) ; and (3) sale. of new and: used electric inotors which accounted for 33.13 percent of its’ income ‘(ibid.).’ : The motor repair , and. reconditioning work is -_ performed either on petitioner’s premises, consist-— ing of a two-story building, or on the’ premises — of the customer for whom the work is done (R. ’ 21). Ali of the wiring is, of course, performed - on the premises of the customer. To carry on its: work, petitioner. employs a foreman, fourteen me-- - chanies, eleven helpers, four trouble shooters, ane i six office employees (R. 7-8). Petitioner works on motors and wiring, and sells’ motors, for private, commercial, and indus- trial. uses (R. 6-7). Ninety-nine percent of its customers. are commercial or industrial firms (R. e 1 This figure does not reflect, hower er, all of the motor re- conditioning work since some of this work is performed on’. —_ used motors which are bought by petitioner, reconditioned... - . arid then sold by it. The income from the sale and such ‘motors is incladed in the figure of 33.13%, covering Teeéipts from the sale of new and used motors. 3 2 The-remainder of petitioner’s gross income (slightly less ‘ than 4%) accrues from cash sales and from rental of electri- cal ——— (R. 9. ws i or ats 6 7 2 11). : Thirty-two of these firms, engaged in-com- — - merce and in the production of goods for com- merce,’ accounted, during the period covered. by. the stipulation, f for-38 percent of petitioner’ s motor | . repair work, 19 percent of its wiring work and: 12 | percent of its motor sales .(R. 10, 12)" Every _tmechanie employed by petitioner worked iri prac- tically - ey vee for some of these antes 4 R. “We think the decision below is correct in alt respects, but in view .of the: conflict as to hee : meaning of the exemption for “‘vetail or service” establishments: in Section 13 (a) (2), we Believe AS that certiorari ‘may. appropriately be grani ed on . _ that question. . ee ee 1. Petitioner’s gmployees were engaged in nei in’ repairing, rebuilding and installing electrical equipment used by manufacturers in producing ‘DISCUSSION other goods and. selling thein in interstate com- © meree, The’ employees’ work was thus “ necessary to the- production” of. the ‘goods shipped in com- ‘merce by the manufacturers. Cf.. Kirschbaum — Co. v. Walling, 316 U. S517, Walton v. Southern Package Corps 320 U.S. 540 (watchmen), and * Four of these firms are engaged in the repair of ships, tugs, barges, and other boats intended for movement in inter-_ state cotnmerce ; one is a telephon¢ company engaged in inter-- state commerce; and .the remainder are engaged in the pro- ‘duction of t goods, a substantial portion of which sire ship outside the state (R. Be s . ee ae = 6 See. Armour & Co. v. Wantock, 323 U: 8. 126 (auxiliary firemen). The fact that the employees are not em-- ployed themselves by the company shipping in commerce is no more relevant here than in the Kirschbaum case. The application of the Act is. Western Union Telegraph Co. v. Lenroot, No. 49, decided January 8, 1945, and-McLeod v. Threlkeld, - 319 U: S. 491, which petitioner alleges -to be in conflict, obviously have no bearing on this question. 2. Petitioner claims ‘that it: is exempted from - the Act by. the definition of “goods” in Sevtien - . ~ 3_(i) as not including “‘goods, after their delivery — into the actual physical possession of thé ultimate consumer thereof other than a producer,: + TAA -facturer ‘or processor thereof’’—Phis- definition might possibly be relevant if the electrical equip-. ment upon which petitioner’s employees worked “were the “‘goods”’ upon which the statutory cover- > age was predicated. But here coverage is based upon the fact.that the.work performed by the em- ployeés is necessary to the -produetion of the commodities manufactured by petifioner’s cus- - tomers, - and it is not suggested that these - -com- modities are not ‘‘goods”” within the meaning of the: statute. Phillips v. Star Overall Dry Clean- ing Laundry 06., -8 Wage Hour Rept. 81 (C.C. A. - 2, 1945) (printed as Exhibit B to the petition, p. 38), did not — a similar situation, inas- _ dependent upon the relation tion of the employees” acs tivities to commerce, not upon who employs them. ec mueh as the garments. and linens cleaned by the employer were not claimed to be necessary to the production of other: goods. Accordingly, t! the eases are not in conflict on this point. ; 3. We believe that the court below commas "held that petitioner’s business is not a “retail or service’’. estabiishment within the meaning. of Section .3 {a) (2). of the Act.’ The court’s yiew - -. ’ that this exemption was intended to reach .only — - those establishments whieh ‘‘serve consumers di- ~ reetly, like tailors, or garages, or laundries * * * for] barber shops, beauty parlors’ and the like is _ supported by most of the other circuit courts of -ap- _ peals," as well as by the legislative history of the Act.’ - Compare Phillips .v.. Walling, No. 608, decided — March 26, 1945; Kirschbaum Co. v. Wailing, 316 U.S. 517, 526. The Circuit Court of Appeals for _ * Petitioner has a certificate from the City of Baltimore. characterizing it as a “manufacturer” for purposes of exemp- tion from: local taxation (R. 99, 29). “4 See Fleming v. Arienal Bldg, Corp., 125 F. 2 278, 280° — (C.C. A. 2) affirmed sub nom. Kirschbaum Co. v. Walling. '.-. "318 U.S. 517; Fleming v. A. B. Kirschbaum Co., 194 F. 2d 567, 572 (C. C. A. 8), affirmed 326 U.S. 517; Walling v. Con- Fossa vgs decided March 20, 1945 (C. C. A. 7) ; Schmidt v. hone Union of Maryville, Missouri, 138.F. 2d a 15 gry ~ A, 8); Reynolds v. Salt "River Valley. Water - Users ‘Aten, 148 F.. 2d 863, 865 (Cc. C. A. 9), certiorari “denied, No. 439, this Term, decided November 6, 1944; Gon- - golidated Timber Co. v. Womack, 132 F. 2d 101, 107 (C, C. _ A. 9); New Mewico Public Service Co. ¥. Engel, 145 F. 2d 636, 640 (C.C.A.10). ‘p. 5. 6 See Phillips v.. eaten, No. 608, decided March 26, 1945, Vac = thie Sixth Circuit, however, has defini “aly ken a contrary. position,’ and there is some indication that the Fifth Circuit also miay not ayree with the reason- ing of the decision below.’ The divergency of judicial. opinion as to the meaning of ‘retail or service’’ in Section 13 (a) (2) has produced a diffi- “eulty in the administration of this portion of the statute. Accordingly, we do not oppose the grant- ing of a writ on this issue. — pias ‘Respectfully submitted. ile eG | he aos, (CHARLES Fany, ee ae ‘Solicitor General. - M, / an Be: Rosert L. Stern, B oe ae Gvonar M. SzaBAD, Special Manietonit to the a General. j Coe . Maas, _ | Solicitor, 1 Boserr MARGOLIN, ; Assistant Solicitor, Attorney, - United States Department of Labor. . Marcu 1945. " See Lonas v. National Linen Service Corp., 136 F, 2d 433 (AC. A, 6), certiorari denied, 320 U. S.. 785; Martino v: Michigan Window Cleaning Co., 145 F, 2d 163 (C. C. A. 6), certiorari dentied, No. 849, this Term, decided February 26, 1945. *See Waite Motor Co: v. Littleton, 194 F.2d 99-40.C. A. | 5) ;.ef. Super-Cold Southwest Co. v. McBride, 124 F.2d 90 os (C. C. A: 5). But see Walling v, Sondock, 132 F. 2d 7 " (C.C.A.5), certiorari denied, 318 U.S. 772. * . U.S. GOVERNMENT PRINTING CFRICE: 1848 - 5} ° ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0022%3A6. Public record. Not legal advice.