# Appendix — Idaho Sheet Metal Works, Inc. v. Wirtz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0215%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 383 U.S. 963 ## Text . TABLE OF CONTENTS OF APPENDIX. VOLUME I. Answer to amendment to complaint ............... Request for acuission of facts ..................... Replies to request and supplemental request for oe ERE Me hea a ere RAT REP ee Ee ee POR Realy a eRe IIb Wd Gals oa ks 0 Gh a eo bein bee ce ooiecks Order amending order for judgment .............. ihe RII rere iret eoarae yar medenen ts Notice of cross-appeal as to part of the judgment ... Plaintiff’s Evidence. A. E. Steepleton (Deposition) ..................... A. E. Steepleton— oc i'n o So cwn eencwnee coasts Cross-examination .................... eieeurey Arnold E. Hirsch— I a wae Uuekoo dee crea. Howard Croom—- ES on. i ec cbebeouseneecesounc 120a Cross-examination ..........cccccccccccccccece 120a Recross-examination ..............-.e2+2- 22... 1228 James H. Micklish— BN I gon ev ccvecncvadvccceuseeg 123a Crogs-examination ........ccccccccccccccccuces 136a Redirect examination .................0cc cece 158a Frank Phillips— CROGB-GRBMMIMAEION 2... cc cc cc cc cece cece 16la Redirect examination ...................-.005- 163a John K. Wood— a 166a ESI I ES PE DOT PLT APRS 167a Redirect examination ...................00000- 169a Recross-examination ...............0cceeececee 17la O. D. Black— Beipeet emmnminatian .... ...osc cc ccvaiccuctccecees 173a Edwin W. Andrews— EEE OCT eae ere 173a Cross-examination ...........cccccccccccccccce 175a Redirect examination .................00ce eee 175a Woody Herrin— Direct examination ..............ccccceseseectbe 176a CN oe baw cwabeeaeueen 179a John S. Robilio— ee re kun buteeteees 180a I on kad wkneviles tadendhels 182a Redirect examination ................0.cc0eeee 184a Warner Swett— nee vtineineuueaeel 185a A. L. Benning— Bpereet emmieiios .....1.. svn vcck caccacucuessccece 686a POP I 6 6 kh. vnc hkdu wwe oecsedsvos 690a Plaintiff’s Rebuttal Evidence. Dr. Robert C. Brooks, Jr.— Be I noc is c os 04605 e dalek dda 696a Ne a a os eueea stat 709a errr re 728a Recross-examination ..............cccccccccece 729a Dr. John R. Moore— RE ET See IR ST He 733a I io ee ee 747a Miss Sarah Ginsberg— ee MID 0), week sowie peace owewnas 763a Cross-examination .............. PE NP RAEN Se 78la Fs puecdnedsacarev deena Pertivessiaelisisncecdi 789a iste civavevssnndvbenehaalerwouuteruieaeebueonl 790a hancedevscbraSetcGavNees nkcuuvicysseuL tial 793a ine Wh One ROM ad SC bua avd dca Nokes wer vcden meal 796a Cue GseOGOR «occ cccccucscvecvseteccensovesenes 836a i . PPPTETSTTITTCLIT TTT TTT Teri ee 837a ATA Sind ce dd ee eN ee isaiaeeseniciees 838a ee ). PPPET PEP T ETE TCL ITT Teer 839a Rede Tg vo cc ciccvetecss Clevecunourbecsaness 84la Feng TOG. io iiicccccck csc tacsedacugestssecaseneas 842a Qe Brmim . nc ccc csessevcceccccesccveseseseneee 856a ne FE. sca ccacctcavestccsecerstranasstastans 860a Be UD gk ssc écced cin becenvewcseteesaswseres 863a RM cca vnccccncancccseccevedvesseunvussnaes 864a D—-Mardh— oer ceerererrrerecescesseene 873a oebeewwrs sey sere e ers Tee eS Ee ee hee eet es 877a D—Marsh 885a E—Marsh F—Marsh PF RN PS ee Original Proceedings in the United States Court of Appeals for the Sixth Circu:t (omitted in amet eR 894 Minute entry +f argument and submission (omitted in ND Ser sibsivun —seccunecencareiedensssoss....., 895 NN Rtas bocicwemacieiinasiaccs = Civil. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. FE. STEEPLE- TON, Defendants. | CLERK'S CERTIFICATE. I, W. Lloyd Johnson, Clerk of the United States District Court for the Western District of Tennessee, do hereby cer- tify that the pxpers and exhibits transmitted herewith and enumerated below comprise the Record on Appeal in the above entitled matter. k 1, Complaint 2. Answer of Defendant 3. Interrogatories by Defendants 4. Plaintiff's Interrogatories to Steepleton General Tire Company, Inc., Defendant 5. Plaintiff's Objections to Defendant's Interroga- tories 6. Objections to Interrogatories by Defendant 7, Plaintiff's Reply to Defendant's Objections to In- terrogatories 8. Notice to Take Deposition Upon Oral Examina.- tion — Clerk’s Certificate 9. Notice to Take Deposition Upon Oral Examina- tion 10. Notice to Take Depositions Upon Oral Examina- tion 11. Amended Notice to Take Depositions Upon Oral Examination 12. Notice to Take Depositions Upon Oral Examina- tion by Plaintiff 13. Notice to Take Deposition Upon Oral Examina- tion 14. Notice to Take Depositions upon Oral Examina- tion—Mr. R. E. Hedlund 15. Amendment to Complaint, Consented to by De- fendant 16. Answer to Amendment to Complaint, Consented to by Plaintiff 17. Motion for Production of Documents 18. Affidavit of James H. Micklish 19. Notice to Take Depositions Upon Oral Examina- tion 20. Request for Admission of Facts 21. Order on Motion for Production of Documents 22. Objections to Requested Admission of Facts 23. Motion and Notice of Motion 24. Supplemental Request for Admission of Facts 25. Motion and Notice of Motion 26. Objections to Supplemental Request for Admis- sion of Facts 27. Order on Objections to Plaintiff’s Request for Admission of Facts and Supplemental Requesi for Ad- mission of Facts —7a— Clerk’s Certificate 28. Replies to Request and Supplemental Request for Admission of Facts 29. Replies to Request and Supplemental Request for Admission of Facts 30. Deposition of Winston W. Marsh, with exhibits attached 31. Deposition of Reuben E. Hedlund, with exhibits 1 through 4 attached 32. Deposition of Milan Zaveson, with exhibits 1 through 6 attached 33. Deposition of Raymond L. Davis, with exhibits 1 through 3 attached 34. Deposition of E. A. Henderscheid, with Firestone exhibits A through K attached 35. Deposition of Ted Curry, with B. F. Goodrich ex- hibits 1 through 10 attached 36. Deposition of Robert L. Sawyer 37. Deposition of James Herman Micklish, Part I, with exhibits 1 through 7 attached 38. Deposition of James Herman Micklish, Part II 39. Deposition of Mr. A. E. Steepleton 40. Deposition of Miss Virginia Lauderdale 41. Findings of Fact, Conclusions of Law and Order for Judgment 42. Motion to Amend Findings of Fact, Conclusions of Law and Order for Judgment 43. Final Decree 44. Order Amending Order for Judgment by Strik- ing the Words ‘“‘at the Plaintiff’s cost’? from Para- graph VII 45. Notice of Appeal ne en eae ee were es . on ELMER sensilla Complaint 46. Notice of Cross-Appeal as to Part of the Judg- ment 47. Reporter’s Transcript—7 Volumes In Witness Whereof, I have hereto subscribed my name and affixed the Seal of said Court at Memphis in said Dis- trict, this 2nd day of November, 1962. W. LLOYD JOHNSON, Clerk, By V. LaFON, Deputy Clerk. (Seal) UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. ARTHUR GOLDBERG, Secretary of 5 Labor, United States Department of Labor, Plaintiff, va. Civil Action. r Wile No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC. and A. Kk. STEEPLE. TON, Defendants, / COMPLAINT. (Filed Oct, 18, 1961.) 1. Plaintiff brings this action to enjoin the defendants from violating the provisions of Sections 15 (a) (1), 15 (a) (2) — 9 — Complaint and 15 (a) (5) of the Fair Labor Standards Act of 1938 (52 Stat. 1060, as amended, 29 U. 8. 201, et seq.), herein- after referred to as the Act. Il. Jurisdiction is conferred upon the court by Section 17 of the Act and by Section 24 (8) of the Judicial Code, re- vised effective September 1, 1948, 28 U.S. C. 1337, TIT. The defendant Steepleton General Tire Company, Ine. is & corporation organized and existing under the laws of the State of Tennessee, having its principal office and place of business in Memphis, Shelby County, Tennessee, within the jurisdiction of this court, where it is engaged in the production, sale and servicing of new and recapped tires, The defendant A. EB. Steepleton, who resides in Mem- ; phis, Shelby County, Tennessee, within the jurisdiction of this court, is now and at all times hereinafter mentioned has been president of the defendant Steepleton General Tire Company, Inec., in which position he has actively managed and controlled the operations of the corporate defendant, TV. At all times hereinafter mentioned the defendants have t employed and are employing approximately forty-seven : (47) employees in the production, handling, servicing, sell- | ing and distributing of new and recapped tires. Substan- | tial quantities of the tires produced, handled, serviced, sold and distributed by the defendants’ said employees have been, and are being, produced for commerce as de- ae ee ° ae CP ORR LHV ORS EE RE EEO — 10a — Complaint fined by the Act and have been, and are being, received, transported, offered for transportation, shipped, delivered and sold into and from states other than the State of Ten- nessee, and have been, and are being, shipped, delivered and sold with knowledge that shipment, delivery and sale thereof in commerce is intended from defendants’ business premises in Tennessee to other states. By reason of their activities, as aforesaid, the defendents and their employees are engaged in commerce and in the production of goods for commerce as defined by the Act. V. During the period since May 1, 1959, the defendants re- peatedly have violated and are violating the provisions of Sections 7 and 15 (a) (2) of the Act by employing many of their employees in commerce and in the production of goods for interstate commerce, within the meaning of tho Act, for workweeks longer than forty (40) hours, without compensating the employees for such excess hours of em- ployment at rates not less than one and one-half (1%) times the regular rates at which they are employed. VI. On October 21, 1938, the Administrator of the Wage and Hour Division, United States Department of Labor, pur- suant to the authority conferred upon him by Section 11 (ec) of the Act, duly issued and promulgated regulations prescribing the records of persons employed and of wages, hours and other conditions and practices of employment to be made, kept and preserved by every employer sub- ject to any provision of the Act. The said regulations and amendments thereto were published in the Federal Reg- ister and are known as Title 29, Chapter V, Code of Fed- eral Regulations, Part 516. Ne a a te Oe ae ee aa eat eee ee ‘ area src i nec, g eas . i gy Complaint VII. During the period since May 1, 1959, the defendants, employers subject to the provisions of the Act, repeatedly have violated and are violating the provisions of Sections 11 (c) and 15 (a) (5) of the Act in that they have failed to make, keep and preserve adequate and accurate records of the wages, hours and other conditions and practices of employment maintained by them, as prescribed by the aforesaid regulations, with respect to their employees. VITI. During the period since May 1, 1959, the defendants have violated, and are violating, the provisions of Section 15 (a) (1) of the Act in that they have transported, of- fered for transportation, shipped, delivered or sold in com- merce and have shipped, delivered or sold with knowledge that shipment, delivery or sale thereof in commerce was intended, from their said place of business to other statey goods, to wit, tires, in the production of which many of their employees were employed in violation of Sections 6 and 7 of the Act, as alleged. IX, The defendants have, since May 1, 1959, repeatedly vio- lated the aforementioned provisions of the Act. A judg- ment enjoining and restraining the violations hereinabove alleged is specifically authorized by Section 17 of the Act. Wherefore, cause having been shown, plaintiff prays judgment permanently enjoining and restraining the de- fendants, their officers, agents, servants, employees, attor- neys and all persons acting or claiming to act in their behalf and interest, from violating the provisions of See: — 12a — Complaint tions 15 (a) (1), 15 (a) (2) and 15 (a) (5) of the Act, and for such other and further relief as may be necessary or appropriate. CHARLES DONAHUE, CHARLES DONAHUE, Solicitor, JETER S. RAY, JETER S. RAY, Regional Attorney, FRANCIS J. STEINER, JR., FRANCIS J. STEINER, JR., Attorney, United States Department of Labor. Post Office Addresses: U. S. Department of Labor, Office of the Solicitor, 725 U. S. Courthouse, 801 Broad Street, Nashville 3, Tennessee, oe U. S. Department of Labor, Office of the Solicitor, Washington 25, D. C. ep a aD ie ae LO VOTRE SRY PBN ih te Te AED EN a NS Time sansa es . ws LET EFL DIME SE Te BEM OY Sh iter mee — 13a — Answer UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of > Labor, United States Department of Labor, Plaintiff, vs. | Civil Action. No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC.,, and A. E. STEEPLE- TON, Defendants. ; ANSWER. Come now the defendants, Steepleton General Tire Com- pany, Inc., and A. E. Steepleton, and, for answer to the complaint herein, state: (1) On information and belief defendants admit the al- legations of Paragraph I of the complaint insofar as same pertain to plaintiff’s purpose or object in filing his com- plaint. (2) Defendants admit the allegations of Paragraph IT of the complaint. (3) Defendants admit their status, residency and rela- tionship as alleged in Paragraph ITI of the complaint; de- fendants deny that Steepleton General Tire Company, Inc., hereinafter referred to as the Company, has been engaged in the production of goods as defined by the Fair Labor Standards Act of 1938, as amended (29 U. SS. G 201 et seq.), hereinafter referred to as the Act, and deny al) other allegations of paragraph ITT of the complaint. — — l4a—- Answer (4) Defendants deny that the Company, at any time men- tioned in the complaint, employed as many as forty-seven (47) employees in addition to its employees specifically ex- cluded from coverage of Sections 6 and 7 of the Act by Sections 13 (a) (1), 13 (a) (2) or 13 (a) (4) thereof; deny that the Company engaged in the production of any goods for commerce as defined in the Act; deny that any sub- stantial quantity of tires were sold or distributed by the Company in commerce as defined by the Act, and deny all other allegations of Paragraph TV of the complaint. (5) Defendants deny that they violated Section 7 of the Act and therefore deny any violation of Section 15 (a) (2) thereof as alleged in Paragraph V of the complaint. (6) Defendants are without knowledge or information sufficient to form a belief as to the truth of the allega- tions in Paragraph VI of the complaint that regulations were issued, promulgated, published and are known as there alleged, and strict proof thereof is demanded; defendants deny that said regulations affect or apply to the defend- ants or any other employer exempted or excluded from coverage by the Act by specific provisions thereof; deny that said regulations accurately reflect the section of the Act pursuant to which they were purportedly issued and therefore deny that said regulations are valid or were in fact or substance authorized by said Act. (7) Defendants deny that they violated Section 11 (c) of the Act and therefore deny violation of Section 15 (a) (5) thereof as alleged in Paragraph VII of the com plaint; defendants aver that the Company makes, keeps and preserves adequate, accurate payroll and other ree: ords with respect to its employees which comply fully with the requirements of all laws affecting, concerning or controlling defendants and aver that defendants are not ee es — lia — Answer affected or controlled by Section 11 (¢) of the Act, but are specifically exempted and excluded from coverage there- under. (8) Defendants deny that the Company has, during the period since May 1, 1959, engaged in the production of tires or other goods as defined by the Act; deny that the Company was covered by or could have violated Sections 6 and 7 of said Act during such period, deny that said sections apply to or affect the Company, therefore deny any violation of Section 15 (a) (1) of said Act as alleged in Paragraph VIII of the complaint; and deny all other allegations in the said Paragraph. (9) Defendants deny all violations of provisions of the Act alleged in Paragraph IX of the complaint; deny that any section thereof authorizes any judgment against de- fendants; deny that complainant is entitled to any relief and deny that there is any basis upon which complainant should be granted any relief. And now having answered the allegations of the com- plaint, defendants, without waiving but expressly relying upon all the above defenses and denials, also rely upon the following defenses: (A) The Company is and during the period since May 1, 1959 has been engaged in the sale of new and recapped tires at retail. (B) The Company is and at all times during such period has been an exempt “‘retail’’ establishment as defined in Section 13 (a) (2) of the Act; the Company at all such times has also qualified under Section 13 (a) (4) of thea Act; therefore the provisions of Sections 6 and 7 of the Act relied upon by the plaintiff do not apply with respect to the Company. — FEMI ER LETT ILL LLNS EOE TEES ELIOT TINO LE LOE. TIS sia Sere — l6a — Answer (C) Section 13 (a) (2) of the Act provides in part that sales ‘‘recognized as retail sales or services in the par- ticular industry’’ in which an employer is engaged shal} be considered retail sales for purposes of this Section; Section 13 (a) (4) of the Act provides in part that the recognition of an employer ‘‘as a retail establishment in the particular industry’’ in which it is engaged shall de. termine whether a given employer qualifies as an exempt retail establishment for purposes of this Section. These mandatory provisions were ignored or violated when di- rectives, bulletins and other publications by the Depart- ment of Labor, binding upon its agents and employees, were promulgated and published. Contrary to these pro- visions such bulletins and directives classify sales recog- nized as retail sales in the tire industry by vendors recog- nized as retail establishments in the tire industry as non. retail sales by non-retailers. Such bulletins and directives are contrary to the classifications recognized in the tire industry expressed by leaders in that industry at hearings preceding the publication of same. Such bulletins and di- rectives are contrary to express legislative mandate and therefore are invalid. Pursuant to such invalid publica- tions plaintiff’s agents and employees conducted an ex- tensive investigation of and made completely inaccurate and unwarranted findings in respect to the Company, which inaccurate, unwarranted and invalid findings serve as the basis for the complaint. (D) Section 6 of the Act, also relied upon in the com- plaint, does not apply to the Company because it is exempt therefrom pursuant to Section 13 (a) (2) and because tha minimum wage of $1.00 per hour has been maintained by the Company. (E) Section 11 (ce) of the Act relied upon in the com- plaint applies only to employers subject to some other —_—_ — 17a — Answer provision of the Act or subject to some order issued there- under; the defendants are not subject to any provision of the Act and are not the recipients of any order there- under. (F) These defendants have not violated those Sections of the Act which would make Sections 15 (a) (1), 15 (a) (2) or 15 (a) (5) thereof applicable as alleged in the com- plaint. (G) In this suit plaintiff attempts to have this Court sanction and enforce invalid and illegal bulletins and di- rectives which are contrary to and in violation of express, mandatory provisions in the sections of the Act to which such publications refer and by which plaintiff would have this Court believe such publications were authorized. Wherefore, defendants pray that they be allowed to go hence with their proper costs. BURCH, PORTER & JOHNSON, By TOM MITCHELL, JR., Attorneys for Defendants, I, Tom Mitchell, Jr., certify that the foregoing answer was served upon plaintiff by mailing copies, postage pre- paid, to one of plaintiff’s attorneys of record addressed as follows: Jeter S. Ray, Regional Attorney U. S. Department of Labor Office of the Solicitor 725 U. S. Courthouse 801 Broad Street Nashville 3, Tennessee This 1st day of November, 1961. TOM MITCHELL, JR., TOM MITCHELL, JR. — 18a — Amendment to Complaint UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of 5 Labor, United States Department of Labor, Plaintiff, -— Civil Action. r —s No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. E. STEEPLE- TON, Defendants. . AMENDMENT TO COMPLAINT. Pursuant to Rule 15 (a), Federal Rules of Civil Pro- cedure, and by written consent of the defendants as evi- denced by the endorsement of counsel hereon, the plain- tiff amends his complaint heretofore filed by adding thereto immediately following Paragraph No. IV and im- mediately preceding Paragraph No. V the following: IV-A. Since September 3, 1961 the defendants repeatedly have violated and are violating the provisions of Sections 6 (a) (1) and 15 (a) (2) of the Act by paying to many of their employees employed in commerce and in the produc- tion of goods for commerce, as aforesaid, wages at rates less than one dollar and fifteen cents ($1.15) an hour. CHARLES DONAHUE, Solicitor, JETER S. RAY, Regional Attorney, MARVIN M. TINCHER, Attorney, United States Department of Labor, Attorneys for Plaintiff. RE i ie "PP seapeN eR =e OES Ree a S = a = es ‘, — 19a ~— Answer to Amendment to Complaint Defendants consent to the filing of the foregoing amend- ment by the plaintiff to the complaint in this cause. BURCH, PORTER and JOHNSON, By TOM MITCHELL, JR., Attorneys for Defendants. UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. ARTHUR GOLDBERG, Secretary of | Labor, United States Department of Labor, Plaintiff, vs. Civil Action. j No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. E. STEEPLE- TON, Defendants. : ANSWER TO AMENDMENT TO COMPLAINT. Come now the defendants and for answer to the Amend- ment to Complaint heretofore filed in this cause by plain- tiff, state: Defendants deny that since September 3, 1961 they have repeatedly violated and deny that they are violating Sec- tions 6 (a) (1) and 15 (a) (2) of the Act, deny that em- ployees of the corporate defendant are employed in com- merce and deny that said employees are engaged in the production of goods for commerce. The corporate defend- ant is a retail establishment as defined in Section 13 (a) (4) of the Act; it qualifies as same pursuant to Section 13 (a) (2) thereof. The provisions of Sections 6 and 15 of the — 20a —- Request for Admission of Facts Act relied upon by plaintiff in his Amendment to Com- plaint do not apply with respect to defendants. Wherefore, defendants pray that they be allowed to go hence with their proper costs. BURCH, PORTER & JOHNSON, By TOM MITCHELL, JR., Attorneys for Defendants. Plaintiff consents to the filing of the foregoing Answer to Amendment to Complaint by defendants; the under- signed attorney for plaintiff acknowledges receipt of a copy of the foregoing Answer to Amendment to Complaint on the 19th day of February, 1962. /s/ MARVIN M. TINCHER, Attorney for Plaintiff. UNITED STATES DISTRICT COURT For the Western District 0: Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of Labor, United States Department of Labor, Plaintiff, vs. Civil Action. r File No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. E. STEEPLE- TON, Defendants. REQUEST FOR ADMISSION OF FACTS. Plaintiff Arthur J. Goldberg requests the defendants, Steepleton General Tire Company, Inc., and A. E. Steeple- ton, within ten days after service of this request to admit ai ERI ENCORE RR EN NE a — 2la— Request for Admission of Facts for purposes of this action, subject to all pertinent objec- tions to admissibility which may be interposed at the trial, that each of the Following statements is true: 1. The defendant, Steepleton General Tire Company, Inc.,! is the franchised dealer for General Tire and Rubber Company, in the Memphis trade area which includes parts of Arkansas and Mississippi. 2. In carrying on its business the defendant company regularly employs approximately 47 to 50 employees, in- cluding approximately 5 to 7 outside salesmen who are employed to call on various commercial and industrial busi- ness establishments and local governmental representatives for the purpose of making sales of automotive tires, tubes and tire recapping services. 3. The defendant company has one such salesman who each week calls on customers in Arkansas and another who each week calls on customers in Mississippi. Throughout the period since May 1, 1959, the said defendant repeatedly has made sales of tires, tubes and recapping service to business establishments and local governmental units lo- cated in Arkansas and Mississippi. 4. Throughout the period since May 1, 1959, the defend- ant company has employed several employees in its recap- ping shop whose duties regularly have included the re- capping of automotive tires belonging to customers of the said defendant whose places of business were located in Arkansas and Mississippi. Substantial numbers of such tires, after being recapped, have been transported or de- livered by the said defendant for transportation to their owners’ places of business in Arkansas and Mississippi. a . ® e e * e ES eS 1 Hereinafter this defendant will be referred to herein simply as the defendant company. ve - ental — 22a — Request for Admission of Facts 7. The defendant company is billed for the merchandise which it obtains from General Tire and Rubber Company, and it has not been the practice of said defendant to ob- tain such merchandise on consignment during the period since May 1, 1959. 8. Throughout the period since May 1, 1959, the defend- ant company repeatedly has obtained tires and other prod- ucts which were delivered to or received at its place of business directly from points outside the State of Ten- nessee, 9. Throughout the period since May 1, 1959, the defend- ant company repeatedly has made sales of tires, tubes and other products and services for resale. 10. The defendant company has a,number of employees in its recapping shop and in its sérvice department, who regularly since September 3, 1961, have been paid at rates less than $1.15 an hour. 11. Throughout the period since May 1, 1959, the defend- ant company has employed a number of employees, includ- ing but not necessarily limited to office, recapping shop and service department employees, who regularly havo worked in excess of 40 hours per week and who have been compensated for such excess hours of employment at their regular rates of pay rather than at rates not less than one and one-half times the regular rates at which they are employed. * * * o oe . * 13. During the calendar year 1960 the defendant com- pany derived a gross income from its sales of goods and services totalling not less than $903,520.00, POPLIN INTRON AT SIH IN TH -— 23a — Supplemental Request for Admission UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of > Labor, United States Department of Labor, Plaintiff, vs. | Civil Action. File No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. E. STEEPLE- TON, Defendants. SUPPLEMENTAL REQUEST FOR ADMISSION OF FACTS. Plaintiff Arthur J. Goldberg requests the defendants, Steepleton General Tire Company, Inc., and A. E. Steeple- ton, within 10 days after service of this request to admit for purposes of this action, subject to all pertinent objec- tions to admissibility which may be interposed at the trial, that each of the following statements is true: 15. During the period beginning Janna ending December 31, 1960, the de eral Tire Company, Ine.,! tires to the customer ide subparagraphs: ry 1, 1960, and fendant, Steepleton Gen- made one sale or more of truck ntified in each of the following a. Ace Freight Lines b. A. §, Barboro, Ine. ec. E. L. Bruce Company 1 Hereinafter this defendant will be referred to herein simply as the defendant company, EE - ate aaiata — 24a — Supplemental Request for Admission d. Carters Garage Company e. Ray E. Carter Heavy Hauling Company f. Albert Cook Plumbing Company g. Delta Oxygen Company h. John A. Denies Sons Company i. Desoto Redi-Mix Company j. Engleberg Packing Company k. Federal Compress, Blytheville, Arkansas |. Federal Compress and Warehouse, Memphis, Ten- nessee m. Film Transit, Inc. n. General Qutdoor Advertising Company o. Global Moving and Storage Company p. Gordon Foods, Ine. q. Gordon Transports r. Woody Herrin Produce Company s. Hoover Motor Express t. Klinke-Reed Dairies, Inc. u. Kroger Company v. Frank Phillips Produce w. Walter Pitts x. Robilio & Cuneo y. Ryder Truck Lines z. Southwestern Transportation Company aa. Stewart’s, Inc. — 25a ~ Supplemental Request for Admission bb. Transports, Inc, ce. Wesson Division, Hunt Foods & Ind. Mechanic Dept. dd. Wesson Division, Hunt Foods & Ind. ee. Wesson Oil and Snowdrift Sales Compan: ff. Wharton Transports gg. White Rose Industrial Laundry hh. H. R. Yost 16. During the period beginning January 1, 1960, and ending December 31, 1960, that customer of the defendant company identified in each of the following subparagraphs operated tex. or more commercial vehicles; a. Ace Freight Lines b. A. 8. Barboro, Ine, ce. E. L. Bruce Company d. Carters Garage Company e. Ray E. Carter Heavy Hauling Company f. Albert Cook Plumbing Company g. Delta Oxygen Company h. John A. Denies Sons Company i. Desoto Redi-Mix Company rh . Engleberg Packing Company k. Federal Compress, Blytheville, Arkansas - Federal Compress and Warehouse, Memphis, Ten- nessee . Film Transit, Ine. s i) € Labor, United States Department of Labor, Plaintiff, vs. | Civil Action. File No. 4344. STEEPLETON GENERAL TIRE COM. PANY, INC., and A. E. STEEPLE- TON, Defendants. REPLIES TO REQUEST AND SUPPLEMENTAL REQUEST FOR ADMISSION OF FACTS. State of Tennessee, County of Shelby. A. E. Steepleton, one of the defendants in the above en- titled action, makes the following replies to the items noted below in the request and the supplemental request for admission of facts filed herein by plaintiff as required by an order herein dated March 23, 1962, requiring an- Swers to certain items in the said request and supple- mental requests by one or the other of the two defendants herein, with leave to qualify or explain such replies as necessary in the circumstances. 1. There is no written franchise agreement and no other written agreement between General Tire & Rubber Com- pany and Steepleton General Tire Company; Steepleton General Tire Company, hereinafter sometimes referred to as the Company, is an independent tire retailer which sells — “San Replies to Request and Supplemental Request General Tire & Rubber Company tires, tubes and to a lesser extent, sells other products, The Company has no exclusive right as a retailer of General Tire & Rubber Company products over or in any geographic area. The Company's store is loeated in Memphis, Tennessee, Mein- phis, Tennessee lies at the extreme southwest corner of the State of Tennessee, The Company's customers principally come from the State of Tennessee, although some of the Company's customers reside or have places of business in the adjacent two states, namely, Arkansas and Mississippi, 2. During 1960 the Company regularly employed ap- proximately forty-seven employees, Included among these employees were the corporate officers, drivers of service and delivery trucks, and approximately six salesmen who called upon and sought to make sales to people or busi- nesses operating any type of equipment which uses pneu matic tires, 3. During 1960 nearby areas to the north, south, east and west of the Company's store was served by one or more of its salesmen, The interval between calls upon customers by a salesman at a given point varied from place to place and from time to time. Because the Com- pany's store is located near the southwest corner of the State of Tennessee, some of the nearby areas to the south and to the west extend into the states of Mississippi and Arkansas, respectively. The volume and value of tho Company's sales to customers in North Mississippi during 1960 was so small that the regular solicitation of sales from customers in that area by a Company salesman was discontinued during 1961, 4. The regular duty of employees in the Company’s tire recapping department was and is to recap tires for the Company’s customers, Some of these customers have places of business located in Arkansas or in Mississippi. a i LEP PENNTIEM EL RI PNM INT FNC NS IN eR RETR RE tHe fy — 29a — Replies to Request and Supplemental Request The recapping done for such customers is not a ‘‘substan- tial’’ part but is, on the contrary, a small percentage of all recapping done by the Company. After tires belonging to such customers had been recapped they were either picked up by the customer, shipped back to the customer via truck line or delivered in the Company's trucks. The method of delivery of recapped tires back to the enstomers who owned same varied according to the customers’ practices or preferences, the number and size of tires and other factors, 7. This statement is correct. 8. This statement is incorrect. During 1960 and there- after, the Company placed almost all of its orders for tires, tubes or other products which it purchased from General Tire & Rubber Company by telephone to a warehouse of eneral Tire & Rubber Company located in Memphis, Ten- nessee, Occasionally, the Company placed such an order through a representative of General Tire & Rubber Com- pany who called at the Company's store. The orders in either event were filled out of stock in the General Tire & Rubber Company warehouse in Memphis, Tennessee; tho merchandise was delivered to the Company store or picked up by Company truck, depending upon the size of tha order. Oceasionally an order could not be completely filled out of stock then in the Memphis warchouse of Gen- eral Tire & Rubber Company. This happened only rarely. When it did happen, the balance of such order was filled out of stock in a General Tire & Rubber Company ware- house at some other point and delivered to the Company store by whatever was the most efficient means of transpor- tation from such other point. 9. The Company during 1960 made sales of products for resale; sales of services for resale are not considered or identified as a separate part of any transaction by tha a Se Replies to Request and Supplemental Request Company. The Company’s sales for resale during 1960 and at other times were kept to a minimum by three factors: a. The price of the Company’s tires is generally higher than competitors’ prices; thus fewer sales for resale can be made by the Company. b. The profit element in a sale for resale is smaller than in sales to users of tires, thus less emphasis is placed on this type of business by the Company or by its salesmen. ce. The Company had no customers on an active sub- dealer basis during 1960 to whom the Company regularly supplied an inventory of tires or tubes for resale. 10. This statement is correct. 11. This statement is correct. The replies to Items 12, 13, 15, 16 and 17 are made by an officer of the Company. * _ * * * * _ 13. This statement is accurate. 15. This statement is accurate. 16. The Company does not know and cannot state how many pieces of equipment were operated by any of its customers during 1960, for many reasons, including the following: a. It will be extremely poor customer relations for a Company representative to inquire of or seek to ascertain from any customer the total number of pieces of equipment for which such customer was purchasing or was maintain- ing tires at any given time. b. During 1960 or during any year, the number of pieces of equipment for which many customers purchased tires varied from time to time. ELEN LECT L INO NAL TIES TEIN EE ANE TOTO IES. BNA LN RON MEALS LIE PN WOR UR ES — 3la ~ Replies to Request and Supplemental Request e. The term ‘‘vehicle”’ is ambiguous. By definition in accepted dictionaries a “‘vehicle’’ is said to mean a con- sons or things. Some heavy industrial or construction equipment for which the Company sells tires do not carry persons or things and are not used as conveyances in any way so that they do not constitute ‘‘vehicles’’ go defined. Certain equipment on which tires of the sort sold by the Company are installed may be used for carrying things but such equipment is not generally considered to be ‘‘ve. hicles’’, for example, wheelbarrows, portable conuveyon belts or slides and many types of materials handling de- vices. Many pieces of equipment on which pneumatic tires are used consist of two or more units, each of which may be considered a “vehicle”? by some persons, for example, a tractor and one or more trailer units. d. The rapid expansion and varied practices of indi- viduals or businesses which lease automobiles, tractors and trailers, industrial, construction or other equipment to users of such equipment complicates and makes it im- possible for a tire retailer such as the Company to deter- mine the number of pieces of equipment for which a given customer was buying or was maintaining tires during any given period. Some equipment rental arrangements obli- gate the lessee to furnish or replace rubber on the equip- ment, some equipment lease arrangements do not so obli- gate a lessee. The drivers of tractor-trailer units in some instances own tractors or own trailers which they operata for others. Thus the fact that certain equipment which uses pneumatic tires of the sort sold regularly by the Com. pany may be kept at a particular place of business or that such equipment bears a business name or trademark does not necessarily mean that the business so identified pur- chases or maintains tires on such equipment. — 32a — Findings of Fact, Conclusions of Law, etc. In the DISTRICT COURT OF THE UNITED STATES For the Western District of Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of ) Labor, United States Department of Labor, Plaintiff, vs. No. 4344. j Civil. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. E. STEEPLE- TON, Defendants. ; FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT. (Filed July 27, 1962.) This cause was heard by the court sitting without a jury upon complaint under the Fair Labor Standards Act of 1938, as amended (29 U. S. C. 201 et seq.) hereinafter re- ferred to as the Act. The court upon the pleadings, the proof, stipulations and briefs of counsel makes the fol+ lowing: Findings of Fact. 1. The defendant Steepleton General Tire Company, Inc., hereinafter referred to as ‘‘the Company,”’ is a Tennessea corporation having its office and place of business in Mem- phis, Tennessee, where at all times material it has been en- gaged in the business of selling and distributing automo- tive tires and tubes, and providing tire recapping and re- pair service. FERRE NERS EH MOLE RE OBST SION OPI IP AE APIA LAR SR ns aR — 33a ~ Findings of Fact, Conclusions of Law, ete. 2. The defendant, A. E. Steepleton at all times since May 1, 1959 has been president of the Company and ae- tively engaged in the management of said Company’s busi- ness in relation to its work and its employees. 3. During the calendar year 1960, which was stipulated by the parties to be a representative period, the Com- pany’s gross income from sales and services to its cus- tomers was approximately $903,520.00. 4. Employees of the defendants regularly were em- ployed to make sales and deliveries of merchandise in ins terstate commerce; to recap tires for delivery to customers located outside Tennessee; to remove, repair, recap and mount tires for use on vehicles operated by customers of the defendants for transporting goods in interstate com, merce; and to make and maintain sales and accounting records with reference to sales and service transactions as set out herein. 5. The Company serves customers within a radius of seventy-five (75) miles of Memphis, which is located in the southwest corner of the State of Tennessee with the State of Mississippi immediately to the south and the State of Arkansas to the west. The retail market zone or area of the City of Memphis includes counties in eastern Arkan- sas, northern Mississippi and West Tennessee. 6. During 1960 the gross value of goods and services sold by the Company to customers with addresses outside of the State of Tennessee was approximately $86,000.00. This amount includes all sales and services billed to all out-of-state customers including those sales completed or services rendered in Memphis. 7. In order to meet the needs of many of its customers, the Company’s servicemen do much of their work at cus- staioatalimeesiaamertinianciemiecints While the exemptions under the Fair Labor Standards Act are to be strictly construed, Arnold v. Ben Kanowsky, supra, the legislative history of the applicable 1949 Amend- ment to the Act clearly indicates that the ‘‘business use test’’ theretofore adhered to is discarded by the Congress to give recognition to the particular industry’s own classi- fication of those sales which are by it considered to be re- tail sales under the Act. No expansion beyond the letter and plain intent of the Act is necessary in this case to place the defendant under exemption in view of the proof herein including the testimony of knowledgeable persons in the industry. Mitchell v. Kentucky Finance Co., supra, Mitchell v. T. F. Fertilizer Works, 233 F. 2d 284 (C. A Sth, 1956); Boissean v. Mitchell, 218 F. 2d 734 (C. A. 5th, 1955). — 39a — Findings of Fact, Conclusions of Law, etc. VI. The court concludes under the facts and circumstances of this case the defendant Company is not subject to the Fair Labor Standards Act, as amended, Title 29, U.S. C,, See. 201 et seq., since it is a retail and service establish- ment and exempt from its provisions by reason of sec- tions 13 (a) 2 and 4. VII. The complaint herein will be dismissed at the plaintiff's cost. Order for Judgment. Judgment in accordance with the foregoing Findings of Fact and Conclusions of Law will be entered within five (5) days. MARION S. BOYD, United States District Judge. A True Copy. Attest: W. LLOYD JOHNSON, Clerk, By J. W. ISELE, 7-27-62 D.C. selnastinaiididedionieee = ——— — 40a — Final Decree In the DISTRICT COURT OF THE UNITED STATES For the Western District of Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of 5 Labor, United States Department of Labor, Plaintiff, Vs. No. 4344. r Civil. STEEPLETON GENERAL TIRE COM- PANY, INC., and A. E. STEEPLE- TON, Defendants. 7 FINAL DECREE. (Filed Jul. 31, 1962.) This cause came on to be heard by the Court sitting without a jury on May 21, 1962, upon complaint under the Fair Labor Standards Act of 1938, as amended (29 U.S. C. 201, et seq.), the amended complaint, the answer to the complaint and answer to the amended complaint, all plead- ings in this cause, the testimony of witnesses, exhibits, stipulations, arguments and briefs of counsel; at the con- clusion of which the Court took this cause under advise- ment; Thereafter on July 27, 1962, the Court filed in this cause its written findings of fact and conclusions of law which are determinative of the issues presented by the pleadings and by the proof and by which the Court directed the entry of a judgment dismissing the complaint herein at the plaintiff’s cost. RRM ine . ‘ , m a = —4la— Final Decree It is, therefore, Ordered, Adjudged and Decreed by the Court that the complaint of plaintiff, Arthur J. Goldberg, Secretary of Labor, United States Department of Labor, as amended, be and the same is hereby dismissed. It is further Ordered, Adjudged and Decreed that the written findings of fact and conclusions of law filed herein on July 27, 1962 be and the same are hereby made a part of the record in this cause. All of which is ordered, adjudged and decreed this 31st day of July, 1962. The matter of costs is reserved pend- ing disposition of plaintiff’s motion to amend the find- ings of fact, conclusions of law and order for judgment filed herein. MARION §. BOYD, Judge. Approved as to Form: s/d JETER §. RAY, JETER S. RAY, Regional Attorney, s/d MARVIN M. TINCHER, MARVIN M. TINCHER, Attorney, Attorneys for Plaintiff, LUCIUS BURCH, JR., LUCIUS E. BURCH., JR., by TM TI, TOM MITCHELL, J R., TOM MITCHELL, JR., Attorneys for Defendant. A True Copy. Attest : W. LLOYD JOHNSON, Clerk, By V. LaFON, B.C s a” ae Order Amending Order for Judqment In the UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. ARTHUR J. GOLDBERG, Secretary of >» Labor, United States Department of Labor, Plaintiff, vs. STEEPLETON GENERAL TIRE COM- PANY, INC., AND A. E. STEEPLE- TON, Defendants. | ORDER AMENDING ORDER FOR JUDGMENT. This cause came on to be heard on plaintiff’s motion that the order for judgment herein be amended by striking from Paragraph VII on page 8 thereof the words ‘‘at the plaintiff's cost’? and on written memorandum by attor- neys for both parties, from all of which it appears to the Court that plaintiff’s motion should be granted. Civil Action. No. 4344. It is, therefore, Ordered, Adjudged and Decreed, that the order for judgment entered herein July 27, 1962, be and the same is hereby amended by striking the words ‘‘at the plaintiff’s cost’? from Paragraph VII on page & thereof. This 2 day of August, 1962, MARION 8S. BOYD, Approved as to Form: Judge. TOM MITCHELL, JR., TOM MITCHELL, JR., A True Copy. Attorney for Defendants. Attest: W. LLOYD JOHNSON, By J. W. ISELF, Clerk, (Seal) D. C. — Notice of Appeal UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. W. WILLARD WIRTZ, Secretary of Labor, United States Department of | Labor, Plaintiff, vs. Civil Action. f File No. 4344. STEEPLETON GENERAL TIRE COM- PANY, INC., AND A. KE. STEEPLE- TON, Defendants. | NOTICE OF APPEAL. (Filed Sep. 27, 1962.) Notice is hereby given that W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff, successor to Arthur JJ. Goldberg, original plaintiff herein, hereby appeals to the United States Court of Appeals for the Sixth Cireuit from the final decree entered in this ac- tion on July 31, 1969. /s/ JETER S. RAY, JETER S. RAY, /s/ MARVIN M. TINCHER, MARVIN M. TINCHER, United States Department of Labor, Attorneys for Appellant. A True Copy. Attest: W. LLOYD JOHNSON, Clerk, By J. W. ISELE, (Seal) D. C. en - —— — Notice of Cross-A ppeal as to Part of Judgment UNITED STATES DISTRICT COURT For the Western District of Tennessee, Western Division. W. WILLARD WIRTZ, Secretary of , Labor, United States Department of Labor, Plaintiff, vs. STEEPLETON GENERAL TIRE COM- PANY, INC., AND A. E. STEEPLE- TON, Defendants. | Civil Action. r —s No, 4344. NOTICE OF CROSS-APPEAL AS TO PART OF THE JUDGMENT. Notice is hereby given that Steepleton General Tire Company, Inc., and A. E. Steepleton, defendants herein, hereby appeal to the United States Court of Appeals for the Sixth Circuit from so much of the final decree entered in this action on July 31, 1962 as effectively adjudicates, or makes.a part of the record herein any finding, conclusion or adjudication, that the defendant, Steepleton General Tire Company, Inc., is engaged in commerce and in the production of goods for commerce within the meaning of the Fair Labor Standards Act, all as amended by the or- der entered herein on August 2, 1962, granting the original plaintiff’s motion pursuant in part to Rule 52 (b), Federal Rules of Civil Procedure, for such amendment. « LUCIUS E. BURCH, JR., LUCIUS E. BURCH, JR., By TM IT TOM MITCHELL, JR., TOM MITCHELL, JR., Attorneys for Cross-Appellants. — 45a — Deposition of Mr. A. E. Steepleton 2° DEPOSITION OF MR. A. E. STEEPLETON, being of lawful age, being by me first duly sworn to tes- tify the truth, the whole truth, and nothing but the truth, as hereinafter certified, deposed as follows: Direct Examination, By Mr. Tencher: Q. Will you please state your name and address? A. A. E. Steepleton, S-t-e-e-p-l-e-t-o-n, 255 Ben Avon Way, Memphis, Tennessee. 3 Q. Mr. Steepleton, you are the defendant in this case of Goldberg versus Steepleton General Tire Company and A. E,. Steepleton? A. I am an employee of the company, yes. Just the company is the defendant, is that correct? Q. No, you are named as a defendant, too, and my ques- tion simply is, are you the A. E. Steepleton who is named as a defendant in the case? A. If I am named in it, I am; yes, I am president of the corporation. Mr. Mitchell: The record reflects that he is president of the corporation. Q. In addition to being president of the company, I take it, you are the active manager in directing affairs of the company? A. Yes, sir. Q. Are you also the principal owner of the company? A. Yes. Q. Is the Steepleton General Tire Company a franchised dealer in the Memphis area for General Tire & Rubber Company? A. Yes. * Numbers appearing in outer edge of text indicate page numbers of original stenographic transcript of testimony. a ee Deposition of Mr. A. E. Steepleton Q. For how long have you been the franchised dealer of General Tire & Rubber Company? A. When I came here, I came here in 1944, and at 4 that time it was a company-owned operatior and subsequently I bought the stock of the company and became owner of all the stock. Q. Yes, sir. A. It was some two years later, I think 1946 or ’47. I have forgotten the date. Q. Mr. Steepleton, is there a written contract or dealer agreement between you and General Tire & Rubber Com- pany? A. No. Q. What territorial limits does your company have to operate in as a dealer for General? A. Well, generally we operate, oh, within a radius of about 50 or 75 miles. We have no closely defined terri- tory as such. In a case where there is another substan- tial General dealer within tiat particular radius, then wa refrain from stepping on his toes. Q. Yes, sir. Are parts of Arkansas and Mississippi in- cluded in the territory that you serve? A. Yes. Q. Now, as the franchised dealer for the company, I assume that you sell and distribute various products that are manufactured by General Tire & Rubber Company? A. That’s right. They manufacture many products, but ours is confined to tires and tubes. Q. All right. Are anv batteries included? 5 A. Some few batteries, yes; however, they don’t manufacture hatteries. Q. And primarily the products that you deal in are the tires and tubes, is that right? A. Yes. Q. And does that include, T assume that in addition to — 47a — Deposition of Mr. A. E. Steepleton passenger tires and tubes and ordinary over-the-road truck tires and tubes, that you also from time to time deal in in- dustrial type tires and tubes, earth moving equipment tires and tubes, and various products of that nature, too? A. Well, we will sell anything that the company makes that somebody will buy. Q. Yes, sir. Do you also sell recapped tires as well as new tires? A. We do lots of recapping, and it is confined 99 per- cent to—at least 99 percent to the service of recapping other people’s tires, Q. I assume from that you mean on more or less a custom basis? A. Custom basis, yes. Q. And where is that recapping done? A. At our place of business at 246 Monroe. Q. Do you have a definite department of your business which you term the recapping department, or which would probably he termed a recapping department? 6 A. We call it a shop; it is a recapping shop. 7 Q. Now, with reference to truck tires, do your employees remove the old tires from the customer’s vehicle, and after they have been recapped then put them back on the vehicle? A. In most cases they do. Q. And in so doing, are you able to maintain the iden- tity of the customer’s tires so that he will get the same tire back after it has been recapped? A. Yes, we have a continuous record of the serial 8 number of every tire that comes into our shop, and it is tagged in his name, and the same tire is rr d. Q. Yes. Could you give us an approximation of the F ae — 48a —- Deposition of Mr. A. E. Steepleton relative proportion between truck tires and passenger tires that you perform recapping on? A. I don’t keep any such record, but it is about 25 per cent. Are you speaking of units or dollar volume? Q. I believe dollar volume would be preferable. Now, either way that you can approximate it will be satisfac- tory to me. A. I can approximate it in dollar volume, that the passenger tire recapping is approximately 25 per cent of the total. Q. And the other 75 per cent would be trucks or heavy equipment? A. Right. Q. Do you from time to time recap any passenger tires and put them in stock for sale? A. We do a few, but there again dollar-wise it is infini- tesimal, the amount of the total. 12 Q. From what sources do you obtain your retread rubber that is used in recapping? A. We buy most of our rubber from General. Q. Now, in addition to their retread rubber—is that called camel-back? A. That is a term that is quite often referred to, yes. Q. In addition to the retread rubber, I assume you get your tires and your tubes and other products you sell from General Tire & Rubber Company? A. Most of them. Q. What places do you obtain those products from, Mr. Steepleton? A. Well, General has a division warehouse here in Memphis, and all of our orders are placed at that source. Q. Yes, sir. A. And most of the tires and other commodities that we buy from General come out of their warehouse. Se a ea Ce Bg oa or ec eae oe ee Oe A 2 " e ae ERLE EES em - , pe FRO D5 OER LER ELIOT EL LNA 1 CS —— — 49a — Deposition of Mr. A. F. Steepleton Q. But do you find that from time to time that when you place an order for something, you place the order with the district office here of General Tire Company. Do you find that the products you need are not in stock and they will be shipped to you from some other point? A. Very seldom. Occasionally some item, we may order ten of an item and they have got nine; we get the 13 nine and they will back order the other one, and it will come in from some source, wherever the nearest warehouse might be. Q. And sometimes that will be from their factory at Mayfield, Kentucky? A. It could be from there. It could be from Waco, Texas, Kansas City, Atlanta, any warehouse point, but that is very rare that we have to get anything from out of town. e & eo oJ o * . 15 Q. Do you sell to any fleet accounts in Arkansas and Mississippi? A. Well, what is a fleet account? Q. Well, I am going to ask you that in a few minutes, and this might be a good place to do it. Is the term ‘fleet account’’ one that is used in the tire business to such an extent that there is & recognized meaning for the term? A. Well, I am sure the term is used. I still don’t know the meaning of it. Q. Do you use it in your business, the term ‘*fleet account’’? A. Not particularly with any particular distinction, no. Q. Youn do have a number of regular customers who operate fleets of motor vehicles, either trucks or cars or both, do you not? A. Yes, we have customers that have all types of equipment. g RDNA ney Peaanna ty re bs es — SALLE ELLIE LE DESAI LOY! PPE NERART = taint . > — 50a — Deposition of Mr. A. E. Steepleton Q. Would you say that the biggest portion of your business is done with customers who have five or more units of motor vehicles in operation? A. Are you referring to our total business or to 16 our new merchandise business? Q. Well, both is what I had in mind. Now, if there is a distinction or if you think to make the picture clear we should break it down, then I will be glad to do that. A. Well, of course, we have no record of how many vehicles any customer has, but I would say, by and large, that since almost every family has at least two auto- mobiles, maybe everybody, every customer we have could be considered operating a fleet. Q. Well, now, Mr. Steepleton, I don’t intend to make a distinction with reference to your customers who have one or more than one family car, but I would like to determine from your knowledge of your business whether or not the principal volume, dollar volume of your busi- ness, is from customers who operate fleets of commercial vehicles? Mr. Mitchell: Well, I think the witness has indicated, Mr. Tencher, that he doesn’t know the particular cate- gory or definition for the word ‘‘fleet’’ or ‘‘fleet account”’ which you previously used, and that he does not know how many vehicles are operated by particular customers at a particular time. Now, within the framework of that explanation and qualification, and if he can, I believe you are entitled to an answer to your last question. 17 Q. Would you go ahead now, Mr. Steepleton, and see if you can answer it? A. Well, I would imagine that in dollar volume basis, including service, recapping, and all of our business, that our customers have several vehicles. I can’t say how many. Q. But, now, if I understand you correctly, you are saying that the biggest portion of these, more than 50 | PEST TNE REAP IY RRR NRRL > Is Peter eemA + Feige TOTS OS SRA GHP RNR Ter anes cre gee 97g fe — 5la — Deposition of Mr. A. FR. Steepleton percent of your business dollar-wise, is obtained from customers who have multiple units of commercial vehicles, would that be correct? A. I think that is substantially correct. Q. Now, I will get back to my other question. Do you have any such customers in Arkansas and Mississippi that you regularly sell to? A. We have a few customers in Arkansas and Missis- sippi, and I imagine that, by and large, they would fall into that category. Q. You have salesmen who regularly travel ia those two states as well as in Tennessee to solicit such basiness, do you not? A. Well, not regularly. We do regularly but not on a daily basis. We have one man who makes one trip a week into Arkansas, and we have one that goes one day a week into Mississippi. 18 Q. Yes, sir. Are those your commercial salesmen? A. Yes, sir, we generally term them commercial salesmen because they are by and large soliciting recap- ping business, and in our method of approach to this business, we find that the new tire business comes as a natural result of soliciting recapping business. Q. Weil, now, you call them commercial salesmen because they are soliciting recapping business. Is it cor- rect that they are soliciting that business by and large from the operators of multiple units? A. They are soliciting from anybody that needs tires or needs recapping. Q. But your commercial salesmen, I take it, do not call from house to house as a general proposition to call on the individuals to solicit recapping business? A. No. Q. They are calling on business establishments? A. Business establishments, yes. — ae See 2 aati — 52a — Deposition of Mr. A. E. Steepleton 21 Q. With whom in the General Tire Company organization do you transact business in day to day activities, Mr. Steepleton? 22 A. More directly with our local division manager, Mr. Brunskill. Q. Now, to what extent do you deal directly with Mr. Brunskill in your business? A. Well, merely on the basis of placing orders through his salesmen, sometimes through his salesmen, and most often by direct telephone call to his office, but so far as our business dealings with Brunskill direct, he is a source of counsel and business management and advisory capacity so far as the company’s policies are concerned. Q. Is there someone else in the district office here that you deal with directly, such as the territory manager? A. He has a territory manager who is assigned to our account. Q. All right, who is that man? A. His name is Meeks. Q. Does Mr. Meeks call at your establishment from time to time in the capacity of salesman or adviser or any other capacity? A. Yes. Q. And what would be his function in such contacts? A. Well, his function is to carry out his soliciting business, I suppose, number one, to encourage us to help carry out all the company policies such as advertising and merchandising methods and so forth. 23 Q. Does he from time to time work with your salesmen in calling on some of your customers or your potentia] customers? A. Yes. Q. Now, would you explain the procedure by which your company obtains merchandise from General Tire & Rubber Company, whether by written order, telephone order, or how? Fae, Gia are — 58a — Deposition of Mr. A. F. Steepleton A. Well, it is 99 percent by telephone, I would say, or it must be 100 percent by telephone. I don’t remember of ever—no, let me change that a little bit. When this man calls on us, if at the particular time he happens to be in there and we want to make him feel good by giving him an order, we give him an order verbally, and he carries out the function of getting it placed and deliv- ered, but in most instances we order by telephone. Q. Who are the persons in your organization who are authorized to place those orders by telephone? A. Well, myself, my son, Mrs. Lauderdale, and if none of us are available and some emergency item was needed, I suppose anybody concerned has the authority to go ahead and perform that function. Q. And do those orders have to be telephoned to anyone in particular at the district office? A. No. Q. When an order for merchandise is placed with the General Tire Comrany, Mr. Steepleton, would you 24 explain the terms by which the order is transmitted to you, the merchandise transmitted to you, whether it be on consignment or whether you are billed, and if so, the terms? A. We are billed immediately or as soon as the billing process can be completed, and the terms are 2 percent cash discount and 10th prox. on everything except truck tires, and I believe that is 60 days. Q. Sixty days net? A. No. I think we still get a cash discount. Q. Is any substantial amount of your merchandise delivered to you by General Tire Company on consign- ment? A. None of it. Q. None. Does your company submit any regular profit and loss statement or balance sheet to General Tire Company? , SARA Om aoRNe Ea REY NOL NN RAIA DINED GSES ARERR ER Pe 1H IR RE et a ANY eB - — Deposition of Mr. A. E. Steepleton A. We are required to periodically send in a statement to the Credit Department. Q. Does that go to the district office here? A. I am not sure. Q. As I understand it, the Credit Department of General Tire Company which handles your accourt and bills you is at Dallas, Texas, is that correct? A. The Credit Department is at Dallas. The billing, I think, is all essentially done on IBM machines in Akron. Q. And when you say periodically, you submit a 25 report of some kind, what is the report? Do you have a name for it? A. We get out a monthly operating statement. Q. Mr. Zaveson assigned as an exhibit to his deposition some sheets which were marked 5-A, 5-B, and 5-C. Do you know whether your monthly operating statement is on any such form as that, Mr. Steepleton? A. Yes, we use the same form. This is a form that is used by General Tire & Rubber Company stores, divisions and stores that they have financial interest in, and we have adopted the same accounting procedure and the same form mainly for comparison reasons, because we arrive at these comparative percentages of all operating phases of the business by conforming to their same accounting procedure. Q. I see. Now, I assume that your company keeps a copy of these operating statements that you submit to General Tire Company? A. Yes. . . * + * . * 26 Q. How many employees does your company have at present? A. I am not sure just right to the exact amount, but on the last day of December it was an even 50. No, the last day of November—excuse me—at the end of our fiscal year. — 55a — Deposition of Mr. A. E. Steepleton Q. Is that generally about the number that you operate with? A. That is about it. Q. And as | understand it, you have two buildings there at your location on Monroe Street? A. Right. Q. But you operate as just a single establishment, is that correct? A. Yes. 28 Q. (By Mr. Tencher) Mr. Steepleton, if I under- stand you correctly, you/testified a few minutes ago that you do not supply new merchandise to any registered sub-dealers of General Tire Company, is that correct? A. That is correct. Q. Do you have any General Tire Company dealers or people who regularly sell General Tire Company products that you do supply? A. No. Are you speaking of right at this particular moment or at some time in the past? Q. Well, I had in mind at the present time, but if you do not have any now and have had in the recent past, I would like to get that information. A. We have had from time to time some marketing agreements with some of the car dealers, but we have at the present time no sub-dealers or anyone operating as such on any permanent arrangement. We occasionally —some dealer will want to buy a General tire or a set of particular tires because he has a customer that has requested them. Q. I notice among the customers that you had in 29 1960 one Austin-Bliss General Tire Company. Do you know who that is or the nature of his business? A. Austin-Bliss? Where? — 56a —- Deposition of Mr. A. E. Steepleton Q. I don’t have the address. A. There is some—I have a recollection of it as a General Tire distributor somewhere in the United States, but I can’t recall the name of the town, but do you have the amount of the sale there? Q. No, I don’t. These are simply names taken from your records. A. Just at this minute in trying to recollect who that particular person is, I believe it is a General Tire dealer that we sold a piece of equipment to somewhere and shipped it, disposal of fixed assets or something of that nature. Q. Do you have any recollection with reference to business that you did with Fagor General Tire Service Company? A. Fagor is a General Tire dealer in Monroe, Louisiana, and it is possible that we probably recapped some tires for him. Q. Do you have any recollection concerning a Wilson General Tire Service? A. There is a Wilson that is a General Tire dealer in Milwaukee. I don’t recall any business dealings with him unless we might have sold him some used equipment. Q. Do yon still from time to time sell tires, either 30 new tires or recapped tires, to used car dealers? A. Occasionally, very little. And to garages in your territory? . Very little. But some? Some. Yes, sir. Our price is generally higher than our competitors, so we are unable to secure thet type of business. Q. When you do make sales of tires to garages and used car dealers, you are aware, are you not, that those are sales for resale purposes? PO>OrES — 57a — Deposition of Mr. A. E. Steepleton A. In most cases, yes, where they supply exemption numbers, certificates, and our records I think will indicate those instances, Q. Do you prepare a daily recap sheet in connection with your sales in the operation of your business? A. We do by product. Q. Does that sheet in any way reflect the type of sale, whether it is one for resale purposes or sale for use of customers on vehicles? A. No. 32 Q. In connection with the new products that you sell, does General Tire & Rubber Company provide you with a price list to use in making those sales? A. Yes, they provide us a suggested list price. Q. Is that termed in the business a code price list? A. No. In recent years, I think in the last two 33 years there has been a code put on the price list which is a key to arrive at cost. Q. What is the designation of price lists that you use in making sales? A. Well, actually in the tire business, a price list doesn’t mean anything because nobody knows the price of a tire from day to day, and it is just a figure that is used as the starting point trying to arrive at some kind % a selling point. Q. But it is used, I take it, as a starting point or in some other way; basically the price list is a part of your pricing system, is it not? A. Yes. | Q. And is there any particular designation for this price list as a resale list, price list or some other desig- nation? I just wonder what you call it. A. A price list, Q. Now, you say that in recent years a code was put es ey, OPE LS IRET TET ETT LETS LTE PR me — Deposition of Mr. A. E. Steepleton on it to determine cost. Would you explain what the code is and how it is used? A. Well, the code is an astronomical figure that is put on there that is higher than the list price, and by deduct- ing certain discounts from that code figure, we arrive at our cost, merely because the list prices do not have the same relationship to cost all the way through, but 34 the code price does. Q. Now, does the code price which you have, I suppose in the form of a number of sheets of paper, show you what prices you are paying for any particular mer- chandise that you might want to order from General Tire Company? A. State that again. Mr. Tencher: Let’s have the reporter read it back. (The reporter read the last question aloud.) A. Well, in code prices, they are printed not on a number of sheets of paper, but it is printed on the sug- gested list price and opposite that list price number. Q. And is this the document, printed price list, that you and your salesmen ,use in making sales to your customers? A. Which? Q. The one you have described. A. The price list? Q. Yes, sir. A. Yes. Q. And you use that same price then, that same price list, to determine a beginning for bargaining with your customer over the price you will charge him and also as a basis of determining what your cost is, is that correct? A. That is correct. Q. Does that same price list give you a guide for 35 pricing the recapping you do for customers? A. No. — 59a — Deposition of Mr. A. E. Steepleton Q. Do you have a separate printed price list for that purpose? A. Yes, we make up our own price list. 36 Q. From such a price list as you stated that you could let us have, could you explain how the wholesale price is determined from the code price expressed there or the code symbol? A. Well, we have no definite prices at any given time for any particular class of people or buyer. Q. When you make a sale to a dealer, for example, 37 is there a percentage of discount that you allow the dealer from the retail price that is listed there in the price list? A. Yes. Q. What would be the percentage of discount that you would allow a dealer? A. Well, that depends on the commodity. As I stated before, there is a very inconsistent relationship to list and cost at variance with the different sizes and types of tires, and that discount by no means can be consistent. Q. Well, does it follow any sort of pattern? For example, on passenger tires which you would sell to a dealer, would you normally allow him, say, 40 percent discount? A. Well, that would be a fair figure to shoot at. Q. Would that be a typical discount to a dealer of passenger tires? A. Well, it would be from our list price. In some instances we make up our own list price and don’t follow the list that is prepared by General Tire. Q. Yes, sir. Have you made up—— (interrupted) A. ——because of these inconsistencies. Q. Have you made np a list price for both truck tires _ and passenger tires to be used in your business? a a — Deposition of Mr. A. E. Steepleton Q. On the passenger tires only? 38 A. We have made some changes in the code price on the truck tires. Q. And in making those changes, have you simply penciled them in on the price list furnished you by General, or have you made up any? A. We have had them printed. Q. You have had them printed? Did you have copies of those that were in use in 1960? A. I am not sure. Q. Now, during the time that you would have had this price list that you made up for use in your business with reference to passenger tires, when you put a list price there, would that be the price at which you would sell passenger tires to a general member of the public who would come in and want to buy a set of tires for his car? A. Well, that is the price we would like to get, but it has never happened. Q. Even the prices that you made up have not been used in making sales? A. No, the price lists are made up for the purpose of having plenty of leeway in the trading. Q. As a part of promotion, I suppose, or bargaining on an individual basis? A. Correct. 39 QQ. Now, what would be the normal or typical deviation from the list price that you would make to a person who simply wanted one tire or four tires for his automobile? A. Well, usually in most cases there is some salvage- able used merchandise involved in the deal, and we try to trade on what its resale value is. Q. Aside from taking in used tires in trade, and I take it that your salesmen would have an idea how much A. We have on the passenger tires. — 6la — Deposition of Mr. A. F. Steepleton actual value that tire would have, aside from giving the customer either the actual value to you of his used mer- chandise, how much more adjustment or reduction from tha‘; list price would you normally make in tis sale? A. There again that would be determined by the product, because in some of these the mark-up is very inconsistent. Some cases the mark-up is probably 100 per- cent, and on the same price list and on a different kind of a tire and different size and a different type, it may only be 25 or 30 percent, so there again trying to establish discount percentages is not feasible because it just is not practical to do so. Q. Yes, sir. Well, take one of your standard products. I have seen them advertised, but I don’t recall offhand the tradename, but it is the dual or the twin tread. A. Dual 90. Q. Or your premium tire—what was the term? 40 A. Dual 90. Q. Dual 90. Now, how much reduction from your list price on the dual 90 would you be willing to make to the ordinary individual purchaser? A. Well, there are circumstances which alter it, and sometimes you have got an adjustment situation involved, but we try to sell the tire at two 10’s off. We sometimes go three 10’s off, and we sometimes go 40 percent off. Q. To an individual, even though he is not a fleet owner or anyone that you would expect to help you get business from a fleet owner? A. That’s right. Q. Now, how much reduction—perhaps before we go into that, we better come down to one of your utility type tires that would be used, for example, by a taxicab company or some company that has a number of ten or twenty automobiles used by its salesmen in the business, the type of tire they might use. Do they normally buy the dual 90 or one that is not a premium tire? rascem on as . — 62a — : Deposition of Mr. A. E. Steepleton A. Normally they would not buy a premium tire. Q. Take the type frequently referred to as frst line tires. Would that be the type of tire that General Foods Company, for example, would use on its fleet of salesmen’s automobiles? A. It probably would be, yes, sir. 41 Q. All right, now, how much reduction from your list price would you be willing to make io the average individual customer for one or a set of four of the first line tires? A. Do you mean based on our current list price or something that was in existence two years ago? Q. Well, I prefer to make it for 1960. What was then your current selling price on that particular tire if you can recall it? Mr. Mitchell: For the record you are talking about— I did not follow the question perhaps. You are talking about a sale to an individual automobile owner? Mr. Tencher: Yes. Mr. Mitchell: Of a product you have classified as a first line tire? Mr. Tencher: Yes. Mr. Mitchell: The question then is what reduction or what discount would be allowed on that kind of trans- action in 1960? Mr. Tencher: Yes. A. Well, I don’t recall right offhand what our per- centage of mark-up was at that time, but we would attempt to sell the tire on the basis of trying to gross somewhere in the neighborhood of 25 to 35 percent gross profit. Q. All right, now, if you were making a sale of a 42 number of tires of that first line tire in the same period of time to a company that has a fleet of automobiles used in its business, what would be the reduction that you would make? — 68a — Deposition of Mr. A. E. Steepleton A. We would still try to maintain the same gross profit, maybe the minimum of it, because in all cases tires are a commodity that we have to service and live with from the time we put them on a man’s wheels until they are worn out, and, therefore, it isn’t the type of merchandise that you can expect to dump over here and forget it. Being a retail service establishment, that is our obligation to follow the life of that commodity. Q. Now, you have used the term “retail service estab- lishment’’ in your answer, and I assume from that that you are simply characterizing your own appraisal of the type of business that you are carrying on, is that right? A. That is correct. Q. Could yon name for us one of your customers that you had in 1960 that you sold passelger tires to on a fleet account basis? I mean by that either he had ten or more passenger cars used in the business? A. Well, most of our commercial type of accounts, of course, are truck operators and insofar as passenger car tires go or are involved, I can’t name one that we sold any particular quantity of tires to. Usually the 43 passenger tires that are bought by a commercial type of account are more or less on the individual, personal type of basis. A certain individual owns or drives & company car, and he puts a set of tires on his car and bills it to the company. Q. For example, United Taxi Company is one of your customers? A. United Taxi would be the only one, I guess, that we have sold any quantity of passenger tires to. Q. What would be the typical discount that you would give or did give to United Taxi Company? A. I am not sure. That is handled by our retail tire department, but I think about 30 percent, perhaps 331%, I am not sure. , eee == Gig Deposition of Mr. A. E. Steepleton Q. Would that be reflected in your sales records or invoices or any sort of record? A. Not as such. It would reflect a net price, but we don’t show discounts. I don’t believe they do. One sales- man may write a ticket up occasionally showing a dis- count, but for the most part, only a net price is shown. Q. I take it from that it would be necessary then to check the individual sales tickets and from them deter- mine the product that was sold and the price at which it was sold, and compare that price with the list price in order to determine how much discount was allowed? A. That is substantially true, yes. 44 Q. Now, in the tire trade and in your business, is the term ‘‘national accounts’’ in general use, Mr. Steepleton? A. Yes, it is used by the factory. Q. And do you in your business supply products to some of these national accounts of General Tire Company? A. We make deliveries for General. Our national account arrangements are made between the two com- panies, and we act as the delivering agent. Q. I suppose General supplies you with a list of the people in this particular area that have such a national account arrangement with them? A. Yes. When they make a national account arrange- ment with a company, why, we are advised and asked to cooperate in servicing them. Q. And as I understand it, the billing for whatever products you supply to the particular account is done directly by the General Tire Company, the home office? A. Yes. Q. Could you name the national accounts that you have been supplying products to in 1960 here in the Memphis area? A. I can name a few. I couldn’t begin to recall all of Tlie tar Rea eda on Oh ee . —— : tl spe Me koe ee et — 65a — Deposition of Mr. A. EF. Steepleton them. There are some we might have been doing business with in 1959 or took care of in 1959 that we didn’t in 1960, and vice versa, but I think that Wilson Pack- 45 ing Company would be one of the accounts that we serviced, probably Kroger during that year—— Q. Would General Foods be one? A. And General Foods. Have you got some more on the list there? Q. Yes. International Harvester? A. International Harvester, correct, the Federal Gov- ernment. Q. Colonial Baking Company? A. I don’t believe we were doing business with Colonial Baking Company during that period. Q. Are you at present? A. We did some in 1961. Q. How about Continental Baking Company? A. But it was all recapping, all the business we did for them. Probably Continental, yes, during 1960. Stewart's, a subsidiary of Continental. Q. Texas Gas Transmission Company? A. I don’t believe we—I am not sure about them. Q. How about Arrow Equipment Company? A. Arrow Equipment Company, manufacturing. Q. The products you supplied to that company would be for use on new equipment such as boat trailers? A. They manufacture trailers, and that is original equipment business, yes. 46 Q. How about International Harvester, were they getting General Tire products for use on original equipment here? A. Yes. Q. Aud how about Tri-State Mack? A. Tri-State Mack. Q. That would be for use on original equipment? . we — 66a — Deposition of Mr. A, E. Steepleton A. That would be actually—anything that went to Tri- State Mack would be only a delivery to them and even- tually covered by a Mack Truck Company purchase order. Q. For use on original equipment? A. To General Tire for original equipment. Q. Yes, sir. Now, let’s take Wilson Packing Company as an example for one of your national accounts. Would you just explain the procedure whereby you receive an order from Wilson and how it is billed and so forth? A. The requisition is written by the Wilson Packing Company in Memphis, and it is sent to their Chicago office. Their Chicago office in turn writes the purchase order and forwards it to General Tire & Rubber Com. pany district office here, and then we are advised of this order and asked to deliver the merchandise. Q. And where do you make the delivery of the mer- chandise? A. We make the delivery to their plant at 1400 Warford. Q. Is a part of that delivery the mounting of the 47 tires? A. Well, it isn’t a requirement. It is quite a bit; in most cases they have a worn tire that needs to come off for recapping, and we solicit that recapping business and offer to mount this new tire in lien of getting the tire for recapping. Q. And if you mount it, do you also balance the wheels for the Wilson Company? A. Not necessarily, not unless we are asked to, and that is a separate service charge if we do. Q. Now, is Wilson Packing Comnany one of the largest of the national accounts that you service? T mean by that, do you supply more tires to them than you do to the average national account in your territory? A. Well, T don’t—I am not absolutely sure about that. From time to time they have seen fit to take their busi- ~- 67a — Deposition of Mr. A. FE. Steepleton ness away from General and buy somebody else's tires, so there are times that we are making deliveries and there are times that we are not. Q. How about the Kroger Company? Is that a pretty consistent customer of General that you supply tires tot? A. It is fairly consistent, but there again the same conditions apply. Q. Are their orders handled similarly to Wilson Company ft A. No. I believe their garage superintendent has 48 the authority to place the order directly on a local basis. Q. If the Kroger garage superintendent does place the order, how is the order written up and delivered to Kroger? ; A. Well, I think in most cases we never see the actual purchase order. He will write out a purchase order, and he will call us or give us the order verbally to our sales- men, and he will give us the order number, and we place it on our national account delivery receipt that he signs. Q. And does your service man or one of the employees from your company take the tires to Kroger and mount them on their equipment over there? A. In some cases we mount them, and in some cases we just put them in his stock. Q. Has that been a fairly regular part of your business during 1960? A. Well, it is a very small amount. I wouldn’t suppose we delivered them over 20 tires during the year. Q. In addition to the new tires that you have delivered Kroger, you also do recapping for Kroger, I believe? A. Yes. Q. Now, do you bill the Kroger Company for the recap- ping you do for them? A. Yes. That is our own business, yes. That is business PRN 80 9 SMES AMRIT FC SERINE VI EPEIEIEN AIOE AER LR IOS IIE II - -— 68a — Deposition of Mr. A. FE. Steepleton we solicit from Kroger just like we would from you 49 or Mr. Mitchell or anybody else that owned a truck. Q. And you set the price on that? A. We set the prices. Q. So with reference to the new products that you deliver to Kroger, do you know what the price is which they are paying for the tire? A. No, sir. Q. I believe you said that part of the time you do mount the tires that you deliver to Kroger here on that national account, the new tires? A. Yes. Q. And when you mount them, do you balance the wheels? A. No. Q. Is there any other service performed in connection with the mounting of the new tires other than just putting them on? A. We put air in them. Q. Get them ready to go? A. Get them ready to go. Q. Now, when you deliver those new tires, are they the type that take tubes, too, the Kroger account, tires and tubes? A. I am not sure whether they are using tubeless tires or not, but I don’t believe they are. Q. In any event, if there are tires and tubes, you 50 deliver both and mount them in such a way as to make them ready for operation? A. We do on the—in cases where we are getting—we render some extra service in order to get the man’s recap- ping business, exactly like the fellow in the filling station wipes your windshield and he supposes you will come back and buy gasoline from him, so in order to get this man’s recapping and other service business, we do some — 69a — Deposition of Mr. A. E. Steepleton little niceties for him in order to influence him to buy products from us. Q. Now, the new tires and tubes that you deliver to Kroger, I take it, are from your regular stock of new merchandise? A. If we have them in stock, usually for convenience we deliver from our stock, and they are either replaced or we are given credit by General Tire & Rubber Company. Q. Now, the type of tires that Kroger has used during 1960, I take it, are the usual types of truck tires that you handle and sell every day? A. Yes, I would SAY SO, yes. Q. And would that be true generally with respect to the other national accounts, that they are all using products which you normally keep in stock? A. In most cases, yes. Q. And where you fill such an order for a national account, it is your general practice to take your stock, whatever vou have in stock, if it is there, and 51 supply the product they have ordered? A. Yes, because we save a lot of time and expense by doing that rather than making a trip to North Memphis and checking the merchandise up in the General Tire warehouse. Q. And you don’t keep on hand any segregated stock out of which you supply the products to these national accounts, do you? A. No, not unless it should be an unusual item that is’ normally not purchased by the general publie. Q. Do you have any national accounts that fall in that category? A. At this particular time, no. Q. Or in 1960 that you recall? A. I don’t think so. — a IN BS RRR RE AS IRE 2 ARG CE RRC PISS OF me VESEY ERIE ORNS x — 70a — Deposition of Mr. A. EF. Steepleton Q. And do any of these national accounts order pas- senger tires as well as truck tires? A. Yes. Q. Where they order passenger tires, is your delivery procedure essentially the same as with the truck tires such as you have described? A. Yes, except in most cases they come after them. Q. And they would be mounted and balanced there at your place of business, I suppose? A. Yes, if they are willing to pay for wheel bal- 52 ancing or other services, why, we perform those extra services. Q. If there are other services performed such as bal- ancing the wheels, does this national account pay you directly for that extra service? A. Yes. Q. With reference to the tires and tubes that you deliver to a national account, I assume that those are products that you already have paid General Tire Com- pany for or have already been billed for, whether you have paid the account or not? Is that the usual course of business? A. Yes, in most-—yes, I think it would be in every condition. In other words, every tire that we received. Q. It is your merchandise? A. They are billed to us. Q. And it is your merchandise to deliver either to a national account or one of your customers as you see fit? A. As a matter of record in order to receive our service commission, why, I think that is necessary. Q. Now, what is this commission that you receive on the delivery you make to national accounts, Mr. Steepleton? A. What is it? You mean dollar-wise? Q. Yes, or percentage-wise during 1960. —ila— Deposition of Mr. A. E. Steepleton A. Percentage-wise, you mean how much the total gross amount of commission? 53 Q. No, just the rate of commission. A. Oh, the rate of commission? Q. Yes, sir. How are you paid for making these deliy- eries to the national accounts? A. Well, we are paid on a sliding scale type of com- mission. That is, for instance, when we receive two and a half percent of a dealer price list—a dealer cost level, let’s put it that way—on manufacturers’ deliveries, and we are paid five percent on governmental deliveries, that is GSO; and ten percent on the other types of national accounts. Q. Commercia) type of national accounts? A. Yes. Q. Do you have any sort of written contract with General Tire & Rubber Company that prescribes the procedure by which you are expected to supply products to the national aceounts? A. We have no written contract. It is merely a mutual agreement to keep our relatienship in good standing with our supplier to carry out the servicing of their direct customers. Q. After you delivered, for example, a set of truck tires to the Kroger Company, what do you do with reference to General Tire Company in order to get paia for that transaction? A. General Tire has a national account delivery receipt type of invoice which we fill out and show that we made delivery to such and such national account on their 54 purchase order number so-and-so, and we get some evidence of it by getting someone in that organiza- tion to sign that invoice, and we send it in to Chicago for us to receive our credit or replacement. Q. Does General Tire Company then furnish you with De ele at a eee A a Bt — 72a — Deposition of Mr. A. E.. Steepleton any sort of document or credit memorandum or anything else showing how much they allowed you for the trans- action? A. We are issued a credit memorandum for the cost of the merchandise plus delivery commission. Q. Whatever the applicable percentage is? A. Yes. Q. And that percentage would be based on your cost of the particular merchandise you supplied? A. Yes, and we also have to supply a reference number showing when or on what invoice number we acquired the merchandise in *he beginning. Q. Is the price as shown by that invoice the price at which you are credited on your account with the value of the merchandise you delivered to the national account? A. The price that they credit us with is the price we paid for it originally. Q. Even though at the particular time you make the delivery, it might have been costing you some other price? A. Yes. We have to furnish the stock movement 55 number and they refer that back to their billing to arrive at the price they originally charged us for it, and they credit us back with the same amount. Q. In sending delivery receipts such as you have described to General Tire Company, do you at the same time send any invoice or ticket showing the actual deliv- ery of the merchandise? A. Yes. Q. That would be a copy of your sales ticket, I suppose? A. A copy of our sales ticket is made out to General Tire & Rubber Company charging the merchandise back to them or getting it in some form showing that it was returned, and we. get a credit for it. Q. When you make out that invoice billing the General Tire & Rubber Company, do you snecify on that the price of these particular items? _ a -— 73a — Deposition of Mr. A. E. Steepleton A. You mean the price we pay for it? Q. Yes. A. Yes. Q. Do you also put on there the commission that you expect to be paid for the particular transaction? A. Yes. Q. In other words, you make out a sales ticket or invoice then which reflects the amount of credit which you expect to be given for having delivered the 56 particular merchandise to the national account? A. Yes. Q. After you have completed that invoice and sent it to General Tire, if you wanted an early replacement of the merchandise that you have delivered to the national account, do you prepare or do you make a separate order to the district manager or to someone else telling him you need some more of that particular item for your stock? A. Yes. Q. Where do you send the credit transaction, your delivery receipt, to? Does that go to the district office? A. It goes to the district office. Q. But that in itself would not be an order for some more merchandise? A. No. (Off-the-record discussion. ) Q. (By Mr. Tencher) With reference to the recapping which you do for Kroger, for Wilson, and others of the national accounts, are you free to set the price of their recapping without regard to any prices that General Tire Company might negotiate with these national accounts? A. Yes. Q. How does that price compare with the price which you would charge for recapping that you do on a 57 similar size truck tire for some truck operator who has got only one or two trucks? Bie. et ergs LEP AA ARIA SF 8 wae : Qe — 74a — Deposition of Mr. A. E. Steepleton A. Well, it depends an awful lot on some national accounts we have. We handle the service for them, the mounting, the dismounting, the same as we do on an individual, and in that case we charge the same prices. Q. Is the price you charge then determined by the service or extra work that would be involved? A. Yes. Q. And is it without regard to the number of vehicles that the particular customer operates? A. Yes. Q. Is that termed a commercial price on recapping? A. Well, we have our own commercial prices, yes, that we charge everybody, every account that we make without an exception, that we handle the servicing, we do their mounting, dismounting, the mating and matching, the airing, the road servicing, all the things that are neces- sary to perform in the function of the truck tires. Now, we have some cases where for reasons of their own that they would rather perform their own servicing, or per- haps because they have a union arrangement, they won’t permit us to handle service, why, we make a differential in the price on a pick-up and delivery basis. 58 Q. Do you have very many such commercial cus- tomers where you have this price differential and do not perform the service that you have described? A. Very, very few, not over—in 1960 I don’t suppose we had over two that I can recall, and currently -e don’t have over four or five right now. Q. What approximately would be the price differential there, Mr. Steepleton? A. Well, it could be anywhere from 10 to 15 percent, depending on the service that they demanded and the number of hours that it took your people to stay there and perform extra functions. Q. Perhaps I didn’t understand you, but I understood — 75a — Deposition of Mr. A. FE. Steepleton that you have a commercial price for recapping, which is the same regardless of the number of vehicles your customer has, provided you also render this extra service of mounting or mating and matching and airing, is that correct or not? A. That is correct. Q. All right. Then for those few customers where you do not provide the extra service, you will reduce the recapping cost by 10 or 15 percent from your commercial price list, is that correct? A. Well, we use—it could be—I am trying to think. We use a suggested factory list in those instances, and 59 their relationship to our list varies considerably from one type tire to another. Q. But in general, you think it would run from some- where in the neighborhood of 10 to 15 percent lower? A. That is the difference in the cost of the performing of the services. Q. In other words, you do then figure into your cost of supplying the recapping service plus the cost of the extra service of Switching and mating and matching of the tires and airing the tires, all of that you compute in setting the price for your large commercial accounts? A. Yes. Q. Would you be able to give us the names of several of your larger accounts? I mean those which have 10 or more vehicles for which you regularly do the recap- ping plus the extra service? A. Well, I don’t know how many vehicles that any of them have, but I am sure it is a matter of record. You already know of some of our larger accounts, and I think Southwestern Transportation Company would probably be our largest. Q. There is no question but what they have 40 or 50 vehicles at least? I don’t know how many. ee = = " eon — 76a — Deposition of Mr. A. E. Steepleton A. Well—— Q. No question but what Kroger has well in excess of 10 vehicles? 60 A. Yes. Well, however, we get a very little, very small percentage of Kroger business. Their business is divided among five or six different companies some- times. Q. It wouldn’t be any question but what Wilson Pack- ing Company operates well in excess of 10 vehicles? . I am sure they do. . And Stewart’s? . Yes, sir. And Continental Baking Company? . Yes, sir. And Road Builders Equipment Company? They wouldn’t operate any. I say any—they have a few vehicles of their own that haul heavy equipment, but they are equipment dealers. Q. Yes, sir. Then such business as you do for them would be in the nature of recapping of tires to be used, to be put on used equipment which they would resell? A. Some would, and some would go on their own equipment. Q. Similarly, for Tri-State Mack the bulk of your recapping would be on tires to be put on used equipment for resale? A. Well, no. During 1960 Tri-State Mack was operating a leasing company, and some of the tires were run on that equipment and some went on used equipment. Q. For resale? A. Yes. 61 Q. And I take it that there would be no question but what DeSoto Ready-Mix Company operates more than 10 vehicles? A. I don’t believe they do. I think they have less than that, considerably less than that. PREY) WO SS MOR oy hed Ree eT ice cae + * » a . — ? THR ‘ > oe De Ae are ee ee on rPOPOoPOD on Tg aa Deposition of Mr. A. EF. Steepleton Q. Are they here in Memphis or Shelby County? A. Yes, they are somewhere south of Whitehaven, right at the state line. Q. I suppose you would know that Delta Oxygen Com- | pany has more than 10 vehicles, would you not? A. No, I am not sure, no, sir. Q. You think it might be less than 10? A. I think it might be less. Q. How about John A. Denie’s & Sons Company? A. I am sure they have more than that. | Q. And how about Ray D. Carter? A. In 1960 Ray Carter—I don ’t know; he just started in business, and I don’t know how many vehicles he has. Q. He had a hauling business plus a leasing business, I believe, didn’t he? A. No, Carter Leasing Company is a different company. Q. Is it? Do you know whether Mid-South Aggregates has more than 10 vehicles? A. I don’t know. A lot of these companies operate leased equipment, and it also depends on what you 62 call a vehicle. There are tractors and there are trailers, and you only license one of them, and I don’t know how to tell how many vehicles a person has, and there are some companies who own only trailers and all the pulling equipment is leased from individuals or from one company. Q. At any rate, Mid-South Aggregates provided you with a pretty substantial amount of business, and had a fleet of vehicles of some number that would be more than four or five? A. Well, they run a construction business, and they had some dump trucks and earth moving equipment, but I don’t know how many. Q. And how about Littlejohn Taxi Company? A. They have several taxis; I don’t know how many. —_— a la samenennateinmnamntamshiinemeemant ~ ay a= 78Q a= Deposition of Mr. A. E. Steepleton Q. I suppose United Taxi Company has 10 or more? A. I think so. We keep no record of how many vehicles any one customer has. Q. If you have a customer for whom you do recapping service who has only one or two vehicles, say, an individual with his car, or an individual truck owner- operator, as a part of your recapping business do you perform this regular service of airing his tires and mat- ing and matching his tires and so on at no extra charge? A. To what extent we can, yes, sir. Q. But your larger recapping customers, you have 63 employees who go around to the place of business to check their tires and air them and mate them and match them and so on, do you not? A. We do. We also in our regular tire, passenger tire business, have our customers come in and have their tires rotated and checked periodically. Every customer is sent a notice at, I think either three or four months, putting him on notice that his tires have probably gone another three or four thousand miles and that he should come in and have them rotated and inspected, and we perform this service consistently for all type of customers. Q. Without charge? A. Without charge. Q. Now, in performing the rotating and matching service in the customer’s place of business, you have a published price for the service unless it is under this arrangement where it is provided free? A. We have a list for performing services for persons who are not our customers as such. Quite often a person will call us to advise us he has a flat tire or to perform some service that has never bought a tire from us. He is in trouble; it is an emergency, and, therefore, we make a charge for it. Oh ae et . S orp ~ ee — 79a — Deposition of Mr. A. E. Steepleton Q. Now, in connection with the Southwestern 64 Transportation Company, I believe you keep an employee down at the place of business every day, do you not? A. Yes. Those trucks come in and out of there at all times of the day and night, and in order to handle the volume of business that we get from there, it takes well over a half-day. We have a man that goes down there in the morning, and I believe he gets there at seven o’clock and he performs whatever jobs are to be handled there up until the middle of the morning, and then he will get away from there for a couple or three howrs and then go back, and another group of equipment jas probably come in in the late afternoon. Q. Does the service at Southwestern Transportation Company include removing flats and repairing punctures at no extra charge? A. I believe that they do their own tube repairing down there. I am not sure; I am sure if we bring them in and repair them, we charge them for it, but I believe they do their own repairing. Q. What would be the extra service amount to or what would it involve at Southwestern? A. Well, the number or amount of equipment they operate, there is enough turnover of equipment in there from day to day that we are pulling tires off for recap- ping every day. Q. In addition to that, you are checking the air 65 pressure and you are rotating the tires to get maximum wear, and you are mating tires so that on dual wheels the tires will both carry their proper share of the load and things of that type, is that involved? A. Yes, sir. Q. Do you have any sort of mileage guarantee on your recapped tires for any of your customers? A. We have a standard guarantee to everybody that — cetteatatintions own ——— TT —_— eo Deposition of Mr. A. E. Steepleton we will guarantee them for, in cases where they keep mileage records, we will guarantee them on a mill a mile. Q. On any and all your customers? A. In most cases on over-the-highway operations, and there again the guarantee must fluctuate according to the type of service, the tires and all, and that is a standard guarantee we give to everyone. Q. Is that guarantee given in writing to your various customers? A. No. Q. It is just understood? A. It is just an understood thing. Q. Who is the employee that regularly services tires at Southwestern Transportation Company for you? A. Do you mean the salesman? Q. No, the service man that changes tires. 66 A. Well, that changes from time to time. We may have one man down there for a week and change, or he may be there three months and change, but that is not a consistent thing. Q. Is the Southwestern Transportation Company the only one of your customers for whom you provide this service on a daily basis? A. I would say Southwestern is the only customer we have that we get sufficient amount of business from to warrant daily service, and we probably have others that we are called to perform some type of service nearly every day. Q. By ‘‘some of this type of service’’, that is free service? A. Well, there isn’t anything free. We are getting paid for it because we get a sufficient amount of business at a profitable price to justify the service. Q. Yes, sir. A. The service this customer gets in relation to ‘‘ Joe Doakes’’ with one truck is all relative. WOOT RIYT ARG ere aera eon ty» — 8la — Deposition of Mr. A. F. Steepleton Q. But by free, I meant at no extra charge for sending aman to the place of business and changing the tires and matching and mating of tires and checking the air pres- sures and so forth. Are there other customers that you do that for without extra charge on a daily basis? A. We go to John A. Denie’s Ready-Mix Plant daily, and we go to Weymouth Construction Company. Q. Any others you recall? 67 A. I don’t know; I ean’t recall any others right now that we are currently doing that for, but we do it for anybody where the business and the necessity warrants it. We would do it for you. Q. If my volume of recapping was such to make it worthwhile? A. That’s right. Q. Now, many of the other customers for whom you do recapping, I assume, you provide this checking service and changing of tires and so on at no extra charge, less frequently than daily, and I have in mind some of your customers for whom yon do it every week? A. Yes, sir, and T think the same thing would apply that if you drove your automobile enough that you had to buy gasoline every day, you would get your wind- shield wiped off every day and your floor swept out every day and your oil checked, but if you drove your ear only enough where you had to give us your car once a week, why, you would probably get that service once a week, Q. Now, you are giving me an example though of a service that is performed at the place of business where I buy the gas, but here my questions relate to the service as performed at the eustomer’s place of business, rotating the tires and mating and matching the tires and so on, taking them off and bringing them to your shop 68 and taking them back and mounting them, which is not done at your place of business. Now, is that — ae yo ad oo er then Ao crane 110 DSR EIS hee iP POLLY TA NTI BRERA aad --- 82a — Deposition of Mr, A. E. Steepleton the type of service that you do on a weekly basis for many of your customers? A. Well, our purpose in going to anybody's place of business to do anything is to get tires to recap, and we certainly are not in the business of checking air pressures and fixing flats and for any other reason other than to get tire business, and some people, some size accounts require this service daily; some require it semi-weekly, some require it weekly; some require it monthly, and | probably in the ease of the man with one truck, we may not see him over every three or four months, Q. And in that type of situation when you do see him, he would normally come to your place of business rather than you sending a man out to his place of business A. Not necessarily, no, because in the first place we don't have the room to service trucks at our place, We have a terribly congested situation, and while occasion. ally the trucks drive in there, we prefer to service it away from our place, Q. If he is an operator of one truck though, would you charge him for a service call though if you go out to match his tires or pull one off? A, Not if he was operating our tires, If he had 69 ~— our tires and our recaps, it is our obligation to make them perform, Q. Well, that would be in a situation where T assume that the tire had given away before it should have, Sup- pose he has a set of your recapped tires which in the normal course of his operation is simply worn slick again and are ready to be reeapped a second time. Do you wait until he calls you to go outt A. Not necessarily, Our salesmen are prebably in con- tact with him. They have a card file on him, and they know substantially how many miles they operate ina month, and they have got a pretty good idea of when —_—__-- ~~ RRa -— Deposition of Mr, A.B, Steepleton this man is going to be ready for tires again, barring any unforeseen accident in between time, so they stay in contact with him and they pretty well know when he is in the market for some additional service or merchandiae. Direct Examination, By Mr. Tercher (Continued); Q. Mr. Steepleton, I would like a little more clarifi- 70 cation with reference to the daily or weekly serv- ies, as the case may be, that you previde to various of your commercial accounts, | believe you stated earlier that even though no separate charge is made for these services, that they are not free services, and would you elaborate on that just a little bit? A, Well, now, let's look at it. We look at it this way, You see, a lot of these trucks—in other words, you are trying to draw a comparison between what we do for Southwestern and what we do for somebody else, Q. Yea. A, Now, the very nature of their business makes or causes a differential there. Those trucks that belong to those people come into their terminal at all hours of the day and night. More particularly we find a certain group of them there in the morning, and then they will be loaded and go out, and another group will be there in the afternoon, so the nature of their business requires constant surveillance plus the fact that there are a lot of trucks involved, and there are other types of commer. cial accounts whose trucks are constantly in operation throughout the business day so that the only time we can see them is on Saturday, so as a result in order to get to those trucks and pull tires off for recapping, we have to go see those particular trucks on Saturdays — =e ale comes _— Deposition of Mr. A. E. Steepleton because we can find a group of them together and 71 we can more readily do a good job on mating and matching tires by virtue of having more than one truck to work with at one time. Q. Would Mid-South Aggregates be a fair example of one that you perform that service on a weekly basis? A. Mid-South Aggregates and one of their other com- panies are strictly on a C. O. D. basis. They owe us about $15,000 and we will never get a dime out of it, and we are currently not doing business with them. Q. Could you name one that you do handle on a weekly basis? A. That we go by and see if their tires are available for recapping on a weekly basis, yes, I think that you named one a while ago. Q. DeSoto Ready-Mix? A. DeSoto Ready-Mix would probably be one, yes. Q. In addition to checking to see whether the tires need to be pulled and recapped, you do match and mate tires of all various vehicles? A. On that particular day if there wasn’t anything that needed it—we very seldom go into the function of matching and mating tires until we are ready to mount some new tires or some recapped tires, and that is part of the proper application of the truck tire, is to be sure that it is running beside one that is of comparable size and tread design. 72 Q. And in doing that, I suppose that you are rendering a valuable service to the customer to prolong the life of his tires and to reduce uneven wear and things of that nature? A. That is our intention, yes, sir. Q. And would it be correct to say that in providing that service, either on a daily basis for Weymouth Con- struction Company and John A. Denie’s, for example, PT REIORE ENA WIRY RTE IN 8 De RR Tepe? — 85a — Deposition of Mr. A. E. Steepleton on a weekly basis for DeSoto Ready-Mix and other of your customers, that it cost you a substantial amount to provide the service? A. Well, the service is always relative to the amount of business involved, whether it be new tires or whether it be recapping. Q. Yes, sir, and in any event, the checking of the air pressures and the mounting of the tires, the matching and mating of tires there at the customer’s establishment, is a service that you do not provide for an average, individual customer? A. We will provide it for anybody that requires it as a part of their business. Q. At the customer’s place of business? A. At the customer’s place of business. Q. Well, can you give any examples of individuals for whom you provide this matching and mating service of tires, and if so how? 73 A. We have quite a number of individual milk haulers that hau! milk into the dairies. Now, while we don’t go to that man's home at Collierville or some other town or community that he might live in to per- form this service, we go out to the dairy while he is unloading and perform this service. Q. Does he call you to come and do that? A. Sometimes he calls us, and sometimes our salesman has contacted him, and he meets him out there and finds things to be done, and we go out and do it. There are a number of individual truck operators who have in the past leased to automobile carriers. They own one truck. We will go to usually Commercial Carriers or Dealers Transport or wherever this man is basing his operations, and perform these services for him. Q. Would that be on a call basis rather than going periodically by prior arrangement? - ‘ — — 86a — Deposition of Mr. A. E. Steepleton A. Well, I wouidn’t necessarily say 80, because our salesman is down there contacting those people, but I suppose if he had a Nat tire out here with a load on it and he is in trouble, then he is calling us. Q. But otherwise you wouldn’t know—you could see that fellow at a particular time or each week, on the same day of each week to perform that service? A. That is my salesman’s obligation to follow that customer and determine what service he needs when. 74 Q. Then the service call or your service truck 1.0 perform the matching of tires or the removal of a tire would be at the instance of one of your salesmen rather than being dispatched on a schedule basis? A. Well, that is true with the others, too. Q. Would John A. Denie’s, for example? A. Our salesman is responsible for what happens there. He is the person responsible for establishing the require- ments to properly service this customer. Q. And this particular customer, the requirement is to go each day, isn’t it? A. That is correct. Q. And your service truck docs go each day without special call or being sent specially by the salesman, isn’t that right? A. Well, he goes each day. Now, if you want to get technical about it, somebody told him to go. . Q. But there is a distinction, is there not, between the arrangement whereby your service man goes to John A. Denie’s and the arrangement by which a service man goes to the Transport Dealers’ establishment? A. Basically I can see no distinction, and again the service rendered is relative to the amount and type of business involved. 75 Q. In one instance it is on a regular basis and in the other instance it is on an unregular or indi- vidual and specially set schedule? Ta a RS Ne a Da i a i ge oma ESSN RIT ES LE GING TEA ENR PT IN) Deel ESR NIN SHES HN — 87a — Deposition of Mr. A. E. Steepleton A. It is regular because the requirements cause it to be regular. Q. Now, I believe that you have many of your fleet account customers who in addition to the recapping service you provide, buy their new tires and tubes from you, is that correct? A. Some of them do. Q. Now, do you have your commercial salesmen to call on those accounts with reference to selling them the new tires and tubes? Is that part of the salesmen’s function? A. That is part of their function. Q. And is the salesman authorized in advance to arrange the terms of the sale, for example, the code less 40 percent or code less 50 percent, or whatever the price might be at that particular time? A. Well, they are authorized usually within certain limitations to quote whatever price is necessary to get the business, and that thing fluctuates from day to day, so I never know the prices myself really. «- is it the normal thing for the salesman to check with you with reference to each major sale that he would make, say, to one of your commercial accounts? 76 A. Well, they occasionally advise with me on what we are up against, a competitive situation that hasn’t previously existed to our knowledge, and I am advised of it, and we will confer on what we can do in order to take this business and still make a little profit on it. Q. And the price that you would agree upon with that customer for his fleet of several vehicles would be nor- mally a lower price than you would charge for an opera- tor of, say, one truck? A. Well, not necessarily, because of competitive condi- tions, the lowest available prices to fleets the size of Gordons Transports are being extended by our competi- tors to one truck operator. RELL OFLC RON! ROR BEI ES a ee Deposition of Mr. A. E. Steepleton Q. On occasion, is that right? A. Yes, sir. Q. But as a general rule, wouldn’t it be true to say that your fleet accounts buy at lower prices than indi- vidual truck owner-operators buy? A. It depends. Quite often prices are made not in relation to the size, but in relation to how the man is going to pay. Some people who are able to pay their bill on the 10th of next month might be extended a little bit better deal than the guy that wants to take six months paying for it. Q. But when all those factors (interrupted) 77 A. But in either case, they are a retail sale because they are being sold to a consumer, and the price has nothing to do with it. Q. And that is your interpretation of retail sales? A. Right. Q. Without regard to that, where the terms of the sale are similar with reference to the time for payment, and where you have a customer with a fleet of 10 or more vehicles, isn’t it the normal thing for that customer to get a lower price, to pay a lower price for your new products than other customers buying the same size and type of tire, but he is [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0215%3A01. Public record. Not legal advice.