147 F.2d 994 | 1st Cir. | 1945
This action was brought by the plaintiff to recover unpaid overtime compensation, liquidated damages, costs and reasonable attorney’s fees under the provisions of § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. §§ 201-219. The case was heard by the court without a jury. At the close of the plaintiff’s evidence the defendant moved for a dismissal on the ground that the testimony failed to show that the activities of the plaintiff were within the coverage of the Act. The motion was granted, and from the entry of the judgment of the District Court the plaintiff has taken this appeal.
From the answers made to the interrogatories propounded by the plaintiff the following appears: The defendant, Pan American Standard Brands, Inc., is a Delaware corporation with its principal office in New York. It is a selling corporation for Standard Brands, Inc., with branches in San Juan, Puerto Rico, and other places. It is engaged in the distribution and sale of yeast, baking powder, desserts, tea and all kinds of products for bread making, all of which products are manufactured or processed by Standard Brands, Inc. The defendant ships products to Puerto Rico as they are ordered. The San Juan branch determines its needs each week by checking the records of sales against inventories and then forwards its orders to the New York office. During the period in question it ordered and received six to eight shipments a month, averaging in value from $14,500 to $15,000 a month. Upon arrival in Puerto Rico the merchandise is 'stored in the defendant’s local warehouses. The defendant took no special orders and shipped no merchandise to Puerto Rico intended for a particular customer. Sales from the San Juan branch during the same period came to approximately $20,000 a month. The defendant does not know in advance the regular needs of its customers • for the reason that all sales are made directly from the defendant’s local warehouses.
From the testimony it appears that Domenech started work daily between five and six A.M. by going to the office, checking out the merchandise he expected to sell that day, loading it on his truck, and starting off on his route. It was his practise to carry a little more merchandise than he expected to sell on a particular day. His customers were mostly bakers, and he visited them daily. Their purchases varied little from day to day. Domenech was known among his customers as an employee of “the Fleishmann Company”. He sold “Fleishmann’s yeast”, a brand name for products of the defendant, and it appears that a salesman for “Budweiser yeast” visited some of the same customers. Domenech finished work between five and six P.M. by turning in his collections and unsold merchandise. Part of his job was to make new customers, and it is clear that he himself determined what quantities of merchandise the customers might take on a particular day and that although the defendant required him to visit his regular customers daily it did not tell him what quantities to deliver each day.
The trial court found that from the end of October, 1938, through September, 1942, the plaintiff’s salary was raised from $95 a month to $110 a month and that this salary increase was based on the fact that he had been able to increase sales in his territory; that the defendant did not take “special orders”; that all shipments when stored in warehouses were mingled with other similar merchandise and became part of the general mass of property in Puerto Rico; and that the plaintiff had nothing to do with any of the products of the defendant until after they were stored in the warehouses. From the evidence and findings of fact the District Court concluded that the plaintiff was not engaged in commerce or the production of goods for commerce
Before this court the appellant makes two contentions: first, that the appellant and the defendant employer were both engaged “in commerce” within the meaning of the Fair Labor Standards Act; and second, that the appellant’s work for the defendant was not that of an “outside salesman” and therefore exempt from coverage under § 13(a) (1).
The general test of coverage is the relation of the employee to interstate commerce or the production of goods for such commerce and not the nature of the employer’s business. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Higgins v. Carr Bros. Co., 317 U.S. 572, 63 S,Ct. 337, 87 L.Ed. 468. We are not concerned with production of goods for commerce here. To be “in commerce” the employee’s activities must be “so closely related to the movement of the commerce as to be a part of it”. McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538.
If the defendant in -this action were an independent wholesaler there would be no doubt but that the activities of the plaintiff would fall outside the coverage of the Act as not touching interstate shipments. Walling v. Jacksonville Paper Co., supra; Higgins v. Carr Bros. Co., supra. In the Jacksonville case, however, the Supreme Court in defining “in commerce” adopted a test somewhat beyond the implications of the “state of rest”
So far as the first point raised here is concerned it is apparent that the decision of the District Court rested on the theory that the interstate journey ended at the warehouse and that the appellant’s handling of the merchandise after it had come to “rest” in the warehouse was a local activity which placed him beyond the coverage of the Act. The appellant, on the other hand, relies, upon the theory that his work was the final step in getting the products of Pan American Standard Brands, Inc., to its customers. That is, he contends that he was engaged in delivering merchandise to certain pre-established customers who happened to be bakers and whom he visited daily on a fixed route assigned by his employer. Pan American Standard Brands, Inc., is -a Delaware corporation “selling” from its New York office; the San Juan branch is not an independent wholesaler that acquired separate title to the merchandise it handled; and some of this merchandise is perishable
We do not agree that the business of the defendant here comes within the rule of the DeLoach case, supra. The employer in that case was in business in Miami, Florida, and was a corporate subsidiary of Crowley’s Dairy Products of Binghamton, New York. The Miami business purchased milk and milk products from other states and sold them at wholesale to retail dairies within the state. Most of the goods were purchased from Crowley’s Dairy Products in five and ten gallon containers, intended to go unbroken to consumers. These products were delivered by the parent company to the defendant in trucks in Miami. There they were transferred to the defendant’s trucks “as quickly as possible” and delivered to local customers.
The Jacksonville Paper case, supra, dealt with the situation of the independent wholesaler. There the course of business began with the independent wholesaler purchasing goods out-of-state for resale to local retail customers from whom the ultimate consumer made his purchases. A variant on this we encounter in the chain-store situa- ■ tion where goods are imported for distribution to the importer’s own retail outlets and not independent local retailers. In this
On the facts of this case we are of the opinion that there is a substantial break in the movement of the products involved here at the warehouse as to warrant dividing the commerce involved into its interstate and intrastate phases. As we view the case it seems clear that the intended terminal point of the interstate journey was the warehouse and not the consumer.
Since we are of the opinion that interstate commerce does not extend past the warehouse point, and the appellant’s activities clearly fall on the other side of the line there drawn, it becomes unnecessary to consider his second contention that he is not outside the coverage of the Act as an “outside salesman”.
The judgment of the District Court is affirmed with costs to the defendant, appellee.
§ 3(b) (c) and (j), 29 U.S.C.A. §§ 203(b) (c) and (j).
§§ 13(a) (1) and 3(k), 29 U.S.C.A. § 213(a) (1) and § 203(k).
For coverage under the Fair Labor Standards Act generally see 41 Michigan Law Review 1000.
It may be conceded that yeast is a perishable product. The appellant distributed other products, however, which the court could have found were not of the same perishable nature.
The case was tried on the pleadings. The District Court granted a motion to dismiss on the ground that the petition failed to show that the plaintiff fell within the coverage of the Act. The Circuit Court remanded the case with instructions to determine whether Crowley’s, Inc., was a mere distributing agency or a separate corporation doing its own business.
In support of the appellant’s position see 31 Georgetown L.R. 462.
See Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778, certiorari denied, 318 U.S. 757, 63 S.Ct. 528, 87 L.Ed. 1130; Walling v. American Stores Co., 3 Cir., 133 F.2d 840; Allesandro v. C. F. Smith Co., 6 Cir., 136 F.2d 75; Walling v. Silver, 1 Cir., 136 F.2d 168; Walling v. L. Wiemann Co., 7 Cir., 138 F.2d 602, 150 A.L. R. 878, certiorari denied 321 U.S. 785, 64 S.Ct. 782; Walling v. Block, 9 Cir., 139 F.2d 268, certiorari denied 321 U.S. 788, 64 S.Ct. 787; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331; A. H. Phillips, Inc. v. Walling, 1 Cir., 144 F.2d 102.