# Petition for Writ of Certiorari — Martino v. Michigan Window Cleaning Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0035%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 327 U.S. 173 ## Text 8-10 Il. Decisions of the. Courts Below Are in Direct ME Conflict with Decisions i in Other “iret. as "L0- 17 ie ; = Seat Dae mg mm A. with the Second Cire mit,” airs 10; aia we B. Confiet with the T Kira Cireuit Ne Ce pie. ava (>, C. Conflict with thie Fourth Circuit... Sepaes ae : D: Confit with the Fifth Cirenit........0 167 KY Conflict with the Ninth Cireuit........., 16-17 HM. Importance of the Question Presented. ..... 17-18 XK. The Decision Below is Erroneous.......... 18-22 XV. The Decision Below Conflicts with the Inter- pretative Bulletin of the Adininistrator of the ) Wage and Hour Division™............... 23-25 Conclusion ..... Ne ene og ere aaa aa ek are 25 INDEX TO AUTHORITIES CITED Cases: *° Armour & Co, y. Wantoeck, — U.S. — (decided _ December 4, 1944)......... pkactneeulciencss 16 “Arsenal Bidg. aed a v. Watling, 316 U. S$. 517... 8 ~~ i | Page Atlantic Coast Line R: R. y. Powe, 283 U.S. 401 | Bittner y. Chicago Daily News Printing Co., 7 Wage Hour Reporter 2 Spee inee Se 1S Borella v, Borden (Co. (CCA- 2), July 28, 1944, . Cert. applied for November 16, 1944... ... - bea 12 3owie v. Gonzalez, 117 Fed. (2nd) 11. (CCA. 1).. 19,21 ‘allus v. 10 Fast 40th Street Bldg., Ine. (CCA- 2), December 12, 1944, 9 sees Cases 62.445... ... 15 a nsolidated Timber Co. v. W omack,' 132. Fed. end) FOL (CCA-9) 2). A 16-17, 19,94 v. Arsenal, 125 Fed. end 278. |... 1h. 10, 15, 24 ene v. Hawkeye Pearl Button Co, (113. Fed. 92 (CC A-8).. F leming v. Palmer, 128 Ped.(2nd) 749 (CCA-15 19 I leming v, oat) (boa. 2), ene) 14, 1944, 9 «= Sale Sa ere A aoe a 3. ilies v. wollen 140 Red. (2ndy- 500 (CCA-4) Ni et 12, ty a decaaan North Shore R. R. 318 U. a, 825. « Piedmont & Northern Ry. v. Interstate Com- merce Comm., 286 U. S. 289. ...2........ a> Phillips v. Star Ov erall Dry Cleaning Co., 55 FP. Supp. 238 ( UME sob Niche celina Se BODE ery ee a et ai. v. swan & Co., UL S. Supreme S-©@€ 60/2 © 6 6.6 ee - a \ / ‘Page Walling v. Jae ksonville Paper Co., 317 U.S. 564 21 Walling v . Roland Electrical Co. (CCA-4 Ph 4, cha bne es Vie debe uae 6 oa cee deus neere 12, 14, 19 Walling v. Sendock, a ed. (2nd) 77 (CCA-5), ~ Cert. denied 318 U.S. 772..... sha eda a cae 10, 16, 24 Walton v. Southern dishes Corp., 320 U.S. 540 10 Warren Bradshaw Drilling Co. v. Hall, 317 U.S Interpretative Bulletin No. 6, issued by the Wage & Hour Division, United States Department of “Labor ....... isd tesaae caneaess si e. ~ 4 Respondent owns’ and operates a large window cleaning business, .The greater part of the wark is rendered for huge manufacturing end indpstrial plants, sip various “units of General Motors Corporation. Under r&pondent’'s direction petitioners are assigned to such factories jn Which they are enhgaved in window cleaning, thereby not only keeping the factory glean to that event, but also facwitating the flow of natural light to the machines and assembly lines at which the factory’s emploves are at work, et -’ The answer denied that the washing wf factory windows is necessary to the prodiction of goods for interstate commerce which takes place inside the factory. The peti- ‘tioners would have presented: an abundance of proof of this contention had not the district court dismissed the complaint on its ewn motion, without giving the plaintiffs an opportunity to present testimony. The trial court and the cireuit court of appeals indicated that judicial notice would be taken that window cleaning is obviously neces. - veui' e te ‘On November 23, 1942, the litigants entered into a stipu- lation of facts (R. 10) whieh showed: that utore than a substantial part of the work done by petitioners was on buildings in’ which goods were: produced for 4interstate commerce, ‘The district judge denied petitioner’s motiém for summary judgment, held that respondent was a service establishment and that Heo : ‘yw. -** * © under the decisions it would be our duty .f0.s0 correct the status to provide time and ona C7 half for overtime in the event plaintiff is able te» show that.defendant is engaged for the greater part in furnishing its service to firms engaged in inter- zy state commerce or in the production of goods for, interstate commerce” (R18), ; meng aT ® »o X é } ‘ges’ } y ° a‘ “ Thereupon an additional stipulation of facts was filed on May 6, 1945, which stated (R. 19): ; “A, As a matter of fact, during the period here involved, the greater portion of the work done by . defendant corporation and by parties plaintiff un- -* der direction of defendant corporation, was ft eus- tomers who were engaged in interstate commerce and most of whose employes were e1 peaeed in inter- state commerce **B. Asa matter of fact, during the period ‘here involved, the greater portion of the work done by - defendant corporation and by parties plaintiff under direction of defendant corporation, was for custo- . mers who were engaged in the production, of goods’ for interstate commerce, and most of whose em- ploves were engaged in the production of goods for interstate commerce or in é6tcupations necessary to the production of goods for interstate conimerce. Ifence, the question raised by thé district Judge was specifically and aflirmatively answer by stipulation of, the parties. The court thereupon directed petitioners to renew their motion for summary judgment and thereafter ren- dered its opinion (R. 20) in which it held this time that since réspondent js a ‘service establishment’? it is of no ‘@yusequence that the greafer part of its servicing. is dered to customers engaged in the production of géods for commence; that to lose the exemption the yervice . establishment? would. mare to ‘‘send its men out of the state to-serve customers. —\| If the district court as Sc testimony to be take ny rather than to dismiss the complaint on its own notion, petitioners wotld not have been denied the oppor- tunity to directly establish the close and intimate tie be- ® tween window cleaning and ‘the production that takes - Plae e within the factories whose wingow s\are cleaned. «It f would have been shown that a va, st business enterprise is here involved Whose hupliecations are direct to the intricate interstate network of the; automohile manufac ‘turing indus- try. The proofs wouk d have shown that petitioners hardly’ ever see respondent's place -of business: that they work ~ in the factories, and indeed must comply with’ ‘the ‘self- samme requirements of citize nship as the factory employes in order to gain admission to do their work and that they must be identified by the sane type of ide ntifying factory badgg in order to get past the enirance gate. The proofs c Would have shown that respondent's customers have. always de ‘ducted the cost ef window cleaning Trom their respective Kross incomes, for income tax . purposes, as “ordinary and necessary expenses” under See, . 23 (a) of the Internal. Revenue Code. We would have shown that the cost of window washing: is not absorbed hy respond- ént’s customers but has divas heen passed on as part of the price of their respective produg ts. Moreover, the proot's wopild have shown that window cleaning hasa direct and immediates relationship tos safety and efficient ‘workman- ship on the part of the factory employes who work in the light of the windows that petitioners clean. . o The Ctreuit Court of Appeals ‘affirmed. the dismissal of | the complaint holding that (1) petitioners. were not en- gaged in the Sone of goods for commerce because ‘it is impossible for hos entertain. the concept that window cleaning Boeee interstate commerce, or is in pursuance of the production of goods for commerce, by the fact that the windows cles aned are in the manufactur ing, establishments of industries engaged in interstate com- meree’’ and (2) «in any ev ent, plaintiffs Were within thie 13 (a) £) exemption, * > TO te ee ee ey ee wx w- LE - a aot ae 7 8 ; Pe : REASONS RELIED UPON FOR ALLOWANCE ( ° OF *WRIT 1. The decision of thé District Court and of theaircuit: Court of Appealsin the present ease are in disregard of the er of this Court in Nirschbaum v. W valling,.. 316 U.S. S. 917, and in other cases. eek, bd . . “The decisions of the lower courts in the present case are directly in conflict with those in other circuits. 3. The position taken in the present ‘casé is clearly erroneous. It disregards not only the opinions of this Court and of the other Cireuit Courts of Appeal, bur also : the correct constructions given to them. ee Sues 4. In view of the issues and of the stipulated fhets in the present case, there was error in granting summary judgment for the defendant. “ay “ey, 8 . 7” Spheantatndis 4 ARGUMENT oa : L THE DECISIONS OF THE COURTS BELOW ARE IN DISREGARD OP DECISIONS OF ‘THIS COURT ‘This Court has repeatedly held that an employe engaged in an occupation necessary to the production of goods for commerce is entitled to the benefits of the Act regardiess of the character of his employer's business. Wirschhbaum t. Walling and Arsenal Bldg, Corp. v. Walling, 316 U.S, WT; Warren Bradshaw Drilling Co. v. Hall, 317 U.S. 88. In Overstreet.v. North Shore Rk. ?., 318 U.S. 125, this Court became emphatic on this point, holding ‘The nature of the employer's activities is not determinative because, as. we have repeatedly said, the application of the Act depends dpon the charae- ~ terof the employee's activities,”’ This Court’s decision in the Nirschbaum-Arsenal gases, supra, held within the Act emploves of loft buildings who never left the state and whose employer's business was ‘nominally intrastate, but who were engaved in rendering necessary service to tenants who were in turn engaged in production of goods for! commerce. The Cirenit: Court helow discarded and utterly set aside the holdings of this Court when it stated: & : “Notwithstanding some more or Jess remote ap- proaches to the present problem in Kirschbaum v. Watling, 316 U.S. 517, and Warren Bradshaw v. Hall, 317 U.S. 88, it is impossible for us to enter- tain the concept that window Washing becomes in- terstate commerce or is in the pursuance of the production of goods for interstate commerce, by the fact that the windows cleaned are in the manutac- . 9 turing estavlishments of industries engaged in in- terstate commerce * * *.”") (R. 33.) During oral argument petitioner's counsel undertook to cite authorities on business management to demonstrate that window cleaning is necessary to any business enter- prise that has windows. The court observed that the cita- ‘tien of such authorities was wholly unnecessary since judicial notice would be taken of that fact. The@ court acknowledged therefore that petitionérs are engaged in an occupation necessary to the production of goods for com-- merce, vet held the Supreme Court’s Kirschbaum decision to be “remote”? im spite of the admitted fact that peti- tioners’ function is to provide natural light and clean windows, whereas in the Wirschbaum ease employes held to be under the Act provided artificial light, and cleaned the floors. There is vet another particular in which the courts below failed to follow. decisions of this Court: ‘Even’ if it: be assumed that respondent is a ‘‘service establishment,”’ this type of servicing has been held not to be ‘*in intra- ° state commerce’’ within the meaning of the exemption. In the Nirschbaum-Arsenal cases, supra, the Court held that: similar maintenance employes of a loit building company serving producers of goods for commerce within the build- sing were engaged in production’ of goods for commerce, and therefore did not come under the Section 13 (a) (2) exemption hecause ‘tin any event ‘the greater part’ of the ‘servicing’ done by. the. petitioner here [the loft building company ] is not in intrastate commeree.’’. This holding was confirmed in McLeod v. Threlkeld, 319 U, S. 491, where the Court stated: “The contention that the work of the employes is covered by the exemption of 13 (a) (2) seems with- ot? ¢ - a 10 out significance. If the work ix wp tnlerstale com merce, the exemption does not. apply.” (Kanphasi: s > supplied.) os Here, the stipulated facts show May the greater part of petitioners’ work was performed for producers of goods for commerce and was therefore not ‘servic ing in intra- Within the meaning of the exemption. Hence, under this Court's hokling in the MelLeod case petitioners should recover, s9 state commerce \ \ The very fact that petitioners ; a endaged j in an oceu- “pation which, by Virtue of Section 3 (3) sitpra is‘an ele- ment in the production of goods for commerce under the act (see Kirschbaum ov. VY ‘alling, supra, W alton. South ern Package Corp., 320 U.S. M40, Walling +. Sdudock. 132 Fed. 2nd 77 (CCAS) cert. denied 318 US . 17) is on to dispose of responde nt’s contention that it isa ‘service establishinent’’. within the Ineaning of. Santina IS (a) (2). Even if we_-assume that respondent is indeed a ‘service establishment” . the exeniption cannot apply because the “srenter_part’’ oF its “servicing”? is admit. - ° a t \ \ tedly in interstate, COMMER, \ “ “ AY ‘ ~ > ; " Ne ‘ s : ca CONFLICT BETWEEN THE DECISION BELOW AND” DECISIONS: IN OTHER CIRCUITS ‘ ‘ vee An _ Conflict With the Second Circuit are i "x ais When the Ar; ae case Was appealed to the Second ( ir-| cuit that court expressly rejected the service eee | defense, saying that the term *servicegest ablishme nt” \ @ should perhaps : ; } 1Oule pe I Ss wi : \ 4 \ ncn Se limited to those serving consumers L directly Li tailors, oo garages, or Taamdries ae Bens * juxtaposition of retai spi ing and servicing does in-~ N “eed suggest as: myeh."’ llemitng- vr Arsenal? 12: Fed. (2nd) 2 278 } . / / ‘oo l ; oo ik . 11 * , oe That decision was affirmed by this Court in 316 U.S, O17. In the case at bar the lower court adhered to its ra- tionalization in, Lonas v. National Egor Service Corp. 136 Fed. 2nd 433, cert. denied 320 U. S\785:; For reasons dis- cussed on p. 19, we believe that os Lovas case presents a factual pattern at complete variance with the facts at bar and accordingly is net here binding. We subinit, how- ever, that the Lonas decision is in diametrical confliet with the position expressed by the Second Cireuit in the Arsenal ease, and is likewise in conflict with other circuits, as diseussed infra. The court below held in the Lonas case, as quoted by the district judge in dismissing the case at bar (R. 23): ‘““The administrator _* * * contends ‘that the exemptions in paragraph 13 (a) (2) are limited ‘to establishments retail in character whether they sell goods or services, This view is based on w hat he ‘conceives to be the impgications to be drawn from the legislative history of the Act and the grammati- ‘al construction of the‘exemption section. Since the related terms ‘retail’ and ‘service’ hoth modifying oi “the word ‘establishment’ they refer to employers who deal directly with private cénsumers as ‘distin- cuished from commercial and industrial customers. \In ‘other words, the service estab ishment exemption extends only to- those ‘establis iments having the characteristies of retail stores (* * *. . ‘*We find no support for. this interpretation in the language ofthe exemption section. * * *”° ~ We are aware tliat certiorari was denied by this Court in the Lenas case. -It- Inay he noted, however; that sinee that : de nial* the Fourth. Circuit has twice taken’ a position op- KN ~ \ pened, = - se ene - \ , —a e “*No inference may be drawn from the denial. As this Cou held in, , & «5. v. Carver, 260/U. S, 482, quoted in Atlantic Coast Line ‘Rai read, Co. a Love, 7283: .\8. 401: 401:/ “But the denial of & “Writ of G rtiorart aca noexpression- of Fopinion ‘upon the seep of the case, as the been told many times” — \. a : at : ae ~ eS ee ee ce j ' ' t / / / peel! ‘\ . ; i : £2 posite to that ahove quoted, in’ Guess e. Montague, 140 Fed. (2nd) 500 find Walling «. Roland Electrical Co., de- cided Jan. 3, 1945, and not yet In pamphlet form, both ot Which are diseused later on, The contlict between the circuits is emphasized by the F a decision of Disttict Judge Rifkind (Southern Dis riet of* ‘New York) in Phillips v. Star Overall Dry Cleanine-Co., oo) FL Supp. 238, which held the Lonas theory inapplicable on the; ground that it was in confliet with the Arsenal (CCA2) Nirschhbaum (CCA-3) and Guess (CO A-4) cases. The petitioners here present a stipulated faet which takes them outside the Lonas case entirely, namely, that. they are not ENGAGED IN a ‘service establisiiment”’; that if respondent-is indeed a service establishment, pe- in’ deing maintenance work on a building owned by their employer Which was occupied by the executive and administrative employes of the company. In the casual meaning of the word, these maintenance empioves were farther renioved from **production’’ than petitioners here. Neithe; they nor the occupants -of the building came into physical eon- tact with the goods at any stage of their production, Since, however, they were **necessary te the production’’, | . they were held tovered: by the act. This ‘decision, which - 13 -earmmot he reeenciled with the decision below. should in and of itself provide sufficient reason for the granting’ of the writ here sought. : a The Cireuit Court of Appeals for the Second Cireuit has reaffirmed its position in the recent case of| Fleming . Post decided December 14, 1944, and reported in 9 ack Cases 62,450. In this case the Court said “That maintenance employees of a building in which tenants are engaged in the manufacture of goods for interstate commerce are within the Act is too well established for dispute.’’ And he Court said: 7 “*In determining whether a substantial portion of the building is oceupied by tenants engaged in the production of goods” for interstate commerce, we have adopted the measure of 2067 suggested by the Administrator. See Callus v.10 East 40th Street Building, Ine, (C CA-2 December 12, 1944), 9 Labor Cases 62,445.’ “The results so reached are directly opposed to the position taken bY the courts below in the present case. B. Conflict with the Third Circuit o In Kirschbaum rv. 7. ‘aliing, | 124 Fed. 2nd 567, the Third Circuit held: \" ee ee ‘service establishment’ Congress in- tended that type of establishment which has the or- dinary characteristics of a retail establishment ex- , cept that it sells services instead of goods. \’ phis decision was likewine affirmed by this Court 316 “ULS. 517. And patently, if the Third Cireuit was correct there, the Sixth Cireuit was incorrect in taking the op- posite view in the Lonas case and in the case at bar. 14 cS Conflict with the Fourth Circuit | Subsequent to the handing down of the Lonas decision in the Sixth Cireuit, the Fourth Circuit Was called upon to decide a similar question in Guess +. Montague, 140 Fed, 2nd 500. It deliberately®chose to follow the Second and Third Circuits and disregarded the Sixth when it held: “On the prficiple noscitur a sociis the service es- tablishment contemplated by the exemption must be the same sort’as a retail establishment * * * that is, it must be one selling services to consumers, The exemption does not extend to manufacturing or pro- cessing goods for sale, or to production within the meaning of See. 3 (j).”’ . » And if any doubt were to remain that the decisions be- low conflicts with the position of the Fourth Circuit, that doubt would be completely removed by that court’s dis-- ‘position of Walling «. Roland Electrical Co., reversing the District Court’s dismissal of the complaint on the Tonas-Martino theory. The reasoning of the Fourth Cir- cuit here.is clearly inconsistent with that of the Sixth Cir- cuit on all of the principal points involved in the {Wo cases: 1, The court held that employes of a concern, the #reater part of whose business consisted in the re- pair, rebuilding, and reconditioning of motors and in the installation, relocation, extension and repair of electrical wiring used in the production of goods for interstate commerce, were engaged in the production _ of goods for commerce Within the meaning of the act. 2. The court held that such a concern is not a service establishment within the meaning of Sec. 13° (a) (2). And while it might be ‘argued that the re-. pair of machinery is more ‘*necessary’’ to production — sat ae ‘ € a) than the maintenance of natural illumination through the cleaning of windows, the Fourth Cireuit’s reason- ing ciéar) applies to the case at bar and is incon- sistént Xith that of the Sixth Cireuit. 3. The court held that the company was ne tail or service establishment within the meaning of the act’? since **the labor of its employees was. per- formed almost altogether in rendering service to com- mercial and industrial concerns, where the cost of the serviee= would not be absorbed by the one to whom they were rendered but would be passed on as a part. 1 the price of the product.’’ 4. Finally, the court hefd that ‘feven if the eom- pany could be held to be a service establishment within the meaning of this exemption, the greater part of. its servicing was not in intrastate commerce, but in the production of goods for interstate ecommerce, and the exemption did not apply.to it for that reason.’’ Judge Darker quoted at length from Judge Learned Harts opinion in Fleming v. Arsenal Building Corp., Fed. (2nd) 278, and relied on this Court's. de- cisions in’ Nirschbawn «v. Walling and McLeod v. Threlkeld, Sinee petitioners are likewise engaged in the produetion of good for commeree, the Roland Electrical decision is squarely contrary to the deé- cision of the lower courts in the ease at bar. . \ Indeed, the ene Was. pointed up by the court its when it ohserved,““* * * | if these decisions—Lonas Martino—are accepted. as sound law, we think they /are clearly distinguishable, from the case at bar in thaf the services here were more clearly in furtherance of tht pro- duction of goods for commerce and the establishiyent is more clearly not-a retail or service establishmenf within 16 eas, e the meaning of the act.” (Emphasis supplied.) On the other hand, this Court, in 4 rmour € Co. v. Wantock, .... VES... (decided Dee. 4, 1944) declined to give an ‘*un- warranted: rigidity to the application of the word ‘neces- ‘sary’ which has always been recognized as a word to be . harmonized with its context. See WeCulloch v. Meryland, 4 Whest. 316, 413, a26.”". | . ee D. Conflict With the Fifth Circuit The Fifth Cireuit. was called upon to decide a question alinost identical with tlmt presented in the case at bar in Sondock v. Walling, 132 Fed. (2nd) 77, cert. denied 318 U.S. 772. The only factual difference was that. there the eniployes in question were plant guards, while here they are window cleaners. In both caSes they were employed by outside contractors who assigned them to render their respective. services to industrial plants in) which goods were produced for interstate ls st In neither case did any of the parties cross’ state lines and in neither case did any cf the parties actually handle any of the goods produced. If there is a difference, it is that in the case at bar a greater portion of the work was rendered in buildings in which goods were produced for commerce, whereas in the Sondock case only a ‘*substantial’? amount of such work was shown. The sole ckaim to coverage in both cases was that, regardless of the character of the employer’s business, the occupations in which” the em- ployes were engaged were necessary to the production of goods for commerce. Yet, opposite results were arrived at by the respective circuits. E. Conflict With the Ninth Circuit The lower court also conflicts with the decision of the. Ninth Cireuit in Consolidated Timber €o. v. Womack, Be ' 17 Fed. (2nd) 101, where Cove rage Was granted to empleves whose sole relation to commerce was that they cooked for lumberjacks in- a lumber camp. In-disposing of the sergice establishment defense, the court held: : “ce * * It here occurs to us that perhaps it may ’ not truthfully be said that the greater part of the servicing of either cookhouse was in intrastate com- merece. >Was not the greater number of diners at the cookhouke engaged in the production of goods for commerce? Were not the cookhouses an in- tegral part of an organization devoted to the pro- duction of goods for commerce? Does it -not follow logically and reasonably, that the greater part of the service rendered by the cookhouse was in inter: state Gommerce rather than intrastate?’’ : ? z ° Se IIl., IMPORTANCE OF THE QUESTIONS PRESENTED Viewed.on a nation-wide basis, the number of seanloves ‘fected by this decision runs into many thousands. The ixsue here involves more than merely window cleaners. it inv gly es an infinite number of workers whose activities are necessary to the production of ‘goods for commerce but whose pay checks are signed by an independent eon- . tractor, The courts below having ‘accepted, by judicial notice, the proposition that petitioners’ work is necessary, the “nestion is whether respondent and a multitude of ‘stiilarly acatee employers are to succeed, ‘as respondent lists thus far! sneceeded, in using Section 13 (a) (2) of the act asa bargier behind which they may pollute the chan- néls of commerce ®ith goods produced on sub-standard wages, | fi ty : In view of the conflict between the cireuits no one knows ~, Presently whether such employes are within or without a ° * Bre, 18 } ® the act. On Oct. 18, 1944, the Sixth Circuit tells us that window wasliers are out: Niné days kiter a District Court in Cliicago tells,us that they are in. Rittner v. Chicago Daily News Printing Co., 7 Wage Hour Reporter. 1123, - The arena of. industrial competition is the-entire nation. Our unions are nation-wide and the pattern of collective bargaining is national. Yet we have one Federal law in . . Detroit and an entirely opposite Federal law in. Chicago. Heawanless the Supreme Court grants certiorari and tells | the Nation which-is and which is not the law, are both — labor and management to make proper plang? How are they (to, know their respective rights and obligations? , | As matters now stand both parties to the collective bargaining process must be burdened with well justified: doubts as ‘to the applicable law. Honest and Jaw-abicing employers must he” plagued with ‘uncertainty lest on. the one hand they accept a law which may not apply to their. business and thereby increase their: operating costs, or ‘ whether they proceed on the assumption tWat the act does. not apply and face the possibility of See. 16 (b) suits ; gaa The well being ¢ of the building maintenance industry * requires that the Nation he told by the highest court in the land what fhe applicable law really is. Ms : | ' ‘ : ‘ ; F 4 : 4 : | c § . q Iv... THE DECISION BELOW IS ERRONEOUS _ The courts below entirely, disregard the statutory re- quirement that before a defendant inay be exempted as a service establishment ‘hea must affirmatively prove that in addition fo being a service establishment, the greater ty. part of the servicing of the defendant is in intrastate com- \ OX —~ \ >i 19 merce, Bleming tr. Hawkeye Pearl Bitton “Co., 113 Fed. : 2nd) 52,56 (CCA-S), Consolidated Timber Co. v, Womack, 32 Fed. (2nd) 101, 106 (CCA- 9). The ieP hein remedial, . employers who claim exemptions ‘must bring them- selves within both the letter and the spirit of the exemp- tions since they are subject to strict construction.” Bowie v. Gonzales, 117 Fed. (2nd) 11, 16 (CCA-1; Piedmont & Northern Ry. v. Inte rstate Commerce Comm., 286 U. S. 289, 3i1; Fleming ¢ _ Palmer, 123 Fed. (2nd) 749, 762 (CCA-1). a Despite the foregoing requirement, the record here eon- tains an unequivécad stipulation that the greater part of the work done by defendant corporation was for custom: ers engaged in interstate commerce AND ALSO. that the greater part of the work done by defendant corpora- lion ihe as customers engaged mn THE PRODI he sore OF GOODS FOR INTERSTATE COMMERCE SR. 18 5-1 _ Respondent has not sustained the burden of, establish- "¥ ing the exemption. The record is absolutely barren of’ any intrastate servicing whatever. Thg Lonas ease, on Wie basis of which the coygts below dismissed the: com- plaint’in the case at bar, decided: only two specific ques- tions, first, that a service establishment does not alter in character because its customers are industrial CONCEYNS rather ‘than’ private consumers. In the Lonas ‘ease the court based its findings on the pleaded facts when it said: fr he court dismissed the complaint on the ground that the pleaded facts, aecepted as‘ true, show that defendant is a service | establishment the greater part of whose serviging is in intrastate commeree, cand sections 6 and 7 of the Act therefore have no application to its employes.’’ lt should be noted that the court accepted as true that. the defendant in the Lonas case was a service establish-_ ~ ment, “the greater part of. Whose servicing is in intrastate Tika 99 commerce.”” Here the opposite fact is true. The second and primary lollin& in the Lonas case was to reject the Administratox’s arguinent that the exemption_, in See. 13 (a) (2) is limited. t® establishments retail in ‘character, whether they Sell goods or services, and as the court there said, ae , the service establishnrent exemption extends only to mA those estalilitiments having the. characterisfies of iretail stores, and the defendant ‘s -business is not a retail service establishment Kecause 605 of its cus- tomers are industrial or business concerns. “SIn’ other words (so claims the Administrator) | “ b) Pures **We find no suppost for this jnterpretation in the -- language of the exemption.sectidn.”’ PR tacens --In other words, the court held that the exemption applies to one who sells ‘its services to larg¢ industrial concerns alone and it is still a retail establishment even if it. does not sell its’services to the general public., Thus, the Lonas gaXe merely defined What is a service establishment, Even if the foregoing is a correct interpretation of Con- gressional’ intent, the facts at bar hear little similarity to those in the Lonas case. Here the record shows that the greater portion of the work was done for factories which were engaged in the production of goods for commierce, The Lonas record showed 60° of the work rendered for ‘industrial or business establishments”? and the eourt ae- cepted as true that ‘the pleaded facts show that defendant is.a service establishment the greater part of whose sery- iciig was in intrastate commerce.”’ . An the case at bar the attitude of the District Court and of the Cireuit:Court in affirming the Tormer’s decision without opinion: is based on a misapprehension as to the _ ee » intention of Congress in‘writing See. 13 (a) (2) into the ° act. “Phis, Court has already defined that detail of Con- gressional intent in Walling v. Jacksonville Paper Co, Oly, UL S. 564 at vel “