Wirtz v. Hardin & Company
| Decision Date | 03 March 1964 |
| Docket Number | Civ. A. No. 63-481. |
| Citation | 253 F. Supp. 579 |
| Court | U.S. District Court — Northern District of Alabama |
| Parties | W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. HARDIN & COMPANY, Inc., a corporation, Piggly Wiggly of Attalla, Inc., a corporation, Piggy Wiggly of East Gadsden, Inc., a corporation, Piggly Wiggly of Fort Payne, Inc., a corporation, Piggly Wiggly of Scottsboro, Inc., a corporation, Piggly Wiggly of Centre, Inc., a corporation, and Mary G. Hardin, Defendants. |
COPYRIGHT MATERIAL OMITTED
Charles Donahue, Solicitor, Beverley R. Worrell, Regional Attorney, Norman H. Winston, Associate Regional Attorney, and Floyd G. Ansley, Attorney, United States Department of Labor, Birmingham, Ala., for plaintiff.
Lusk, Swann & Burns, Gadsden, Ala., and Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., for defendants.
This action was brought by the Secretary of Labor under Section 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C.A. § 201 et seq.), to enjoin alleged violations of the provisions of Sections 15(a) (2) and 15(a) (5) of the Act and to enjoin the withholding of payment of minimum wages and overtime compensation allegedly due employees of the defendants. The issues raised by the complaint are whether the defendants, or any of them, constitute an enterprise within the meaning of Sections 3(r) and 3(s) of the Act, as amended in 1961, and whether any of the employees of the defendants are individualally engaged in commerce within the meaning of the Act.
The case was tried before the Court at Gadsden, Alabama, on February 3rd and 4th, 1964. Having considered all of the evidence and pleadings and being otherwise fully advised, the Court hereby makes the following Findings of Fact and Conclusions of Law:
1. Defendant Mary G. Hardin resides in the City of Gadsden, Alabama. Each of the defendants Hardin & Company, Inc., Piggly Wiggly of Attalla, Inc., Piggly Wiggly of East Gadsden, Inc., Piggly Wiggly of Fort Payne, Inc., Piggly Wiggly of Scottsboro, Inc., and Piggly Wiggly of Centre, Inc. is a corporation organized and existing under the laws of the State of Alabama.
2. Each of the defendant corporations owns and operates a retail grocery establishment under the trade name "Piggly Wiggly." Hardin & Company, Inc. owns and operates a Piggly Wiggly store in Gadsden, Alabama, Piggly Wiggly of Attalla, Inc. owns and operates a Piggly Wiggly store in Attalla, Alabama, Piggly Wiggly of East Gadsden, Inc. owns and operates a Piggly Wiggly store in East Gadsden, Alabama, Piggly Wiggly of Scottsboro, Inc. owns and operates a Piggly Wiggly store in Scottsboro, Alabama, Piggly Wiggly of Fort Payne, Inc. owns and operates a Piggly Wiggly store in Fort Payne, Alabama, and Piggly Wiggly of Centre, Inc. owns and operates a Piggly Wiggly store in Centre, Alabama. The defendant corporations were organized and commenced doing business at various times during the period from 1947 to 1961.
3. The defendant corporations have the right to the use of the Piggly Wiggly trade name in the doing of business under franchise agreements with the Piggly Wiggly Company, and such agreements provide for the payment of franchise fees by each of the defendant corporations to the Piggly Wiggly Company for the use of such trade name. There is no connection between defendants and the Piggly Wiggly Company other than the right which each corporate defendant has to the use of the Piggly Wiggly trade name and the payment of franchise fees by the corporate defendants to the Piggly Wiggly Company for the use of such trade name.
4. The stock ownership and the officers and directors of the defendant corporations are as follows:
Hardin & Company, Inc
Mary G. Hardin, President & Director 50 shares
J. C. Goss, Secretary & Director 50 shares
Curtis Edge, Director None
Mary Lee Hardin 51 shares
Nettie Elizabeth Hardin 51 shares
R. H. Hardin 48 shares
Piggly Wiggly of East Gadsden, Inc
Mary G. Hardin, President & Director 88 shares
Curtis Edge, Secretary & Director 96 shares
J. C. Goss, Director 9 shares
Bertie Lee Edge 3 shares
R. H. Hardin 5 shares
Piggly Wiggly of Attalla, Inc
J. C. Goss, President & Director 120 shares
Mary G. Hardin, Secretary & Director 160 shares
Sara Goss, Director 20 shares
Piggly Wiggly of Fort Payne, Inc
Mary G. Hardin, President & Director 53 shares
David Zane Reece, Vice-President & Director 32 shares
J. C. Goss, Secretary-Treasurer & Director 45 shares
R. H. Hardin 20 shares
Piggly Wiggly of Scottsboro, Inc
Mary G. Hardin, President & Director 25 shares
J. C. Goss, Vice-President & Director 6 shares
Emmett Hood, Secretary-Treasurer & Director 99 shares
Mary Lee Hardin 35 shares
Nettie Elizabeth Hardin 35 shares
Piggly Wiggly of Centre, Inc
Leon Hardin, President & Director 60 shares
Mary G. Hardin, Secretary & Director 60 shares
J. C. Goss, Director 20 shares
R. J. Bradley 60 shares
5. Mary G. Hardin is the daughter of J. C. Goss and Sara Goss. Mary G. Hardin is divorced from her former husband R. H. Hardin and has custody of her minor children Mary Lee Hardin and Nettie Elizabeth Hardin.
6. R. J. Bradley is a Certified Public Accountant and resides in the City of Gadsden, Alabama. He is an independent accountant and practices his profession in the City of Gadsden, Alabama. The defendant corporations utilize the professional services of Mr. Bradley in the keeping of their records and in the preparation of their tax returns.
7. Curtis Edge is the Secretary and a Director of Piggly Wiggly of East Gadsden, Inc., owns 96 shares of its stock, and is manager of the store owned and operated by this corporation. Bertie Lee Edge is the wife of Curtis Edge and owns 3 shares of the stock of this corporation. He was one of the organizers of the business and has an investment of $10,000 in the corporation. He formerly owned his own retail grocery store, which was known as East Broad Food Store, and he sold that store in order to become one of the organizers of and to purchase the interest which he and his wife have in Piggly Wiggly of East Gadsden, Inc.
8. David Zane Reece is the Vice-President and a Director of Piggly Wiggly of Fort Payne, Inc., owns 32 shares of its stock, and is manager of the store owned and operated by this corporation. He likewise owned his own retail grocery store, which was known as Reece's Superette and which he sold in order to purchase the interest which he has in Piggly Wiggly of Fort Payne, Inc. He has an investment of $11,000 in the corporation.
9. Emmett Hood is the Secretary-Treasurer and a Director of Piggly Wiggly of Scottsboro, Inc., owns 99 shares of its stock, and is manager of the store owned and operated by this corporation. He was one of the organizers of the business and has an investment of $20,000 in the corporation.
10. Leon Hardin is the President and a Director of Piggly Wiggly of Centre, Inc., owns 60 Shares of its stock, and is manager of the store owned and operated by this corporation. He was one of the organizers of the business and has an investment of $6,000 in the corporation.
11. Each of the defendant corporations separately pays taxes on its store and on the properties and operations of its store, and separate tax returns are filed by each corporation. Each corporation obtains and carries its own insurance coverage on its store and on the properties and operations of its store through an insurance agency located in the community in which each does business. Each corporation has its bank account with a bank located in the community in which each does business.
12. The employees of Piggly Wiggly of Attalla, Inc., the employees of Hardin & Company, Inc., and the employees of Piggly Wiggly of East Gadsden, Inc. are represented by Unions. Each of these three corporations has a separate contract with the Union which covers the employees of its store.
13. The manager of each of the stores orders and purchases, separately and independently, the groceries, produce, and merchandise which his store stocks and sells. Deliveries of groceries, produce, and merchandise are made by suppliers separately to each store in response to the orders placed by that store, and each corporation is invoiced separately for the goods which it has ordered and purchased. Each of the stores receives shipments of groceries, produce, and merchandise from various suppliers, depending on the choice of the manager of the store.
14. The manager of the Scottsboro store, Emmett Hood, prepares and signs the checks in payment of the groceries, produce, and merchandise which he has ordered for his store and mails such checks to the suppliers. The other stores send the amount of sales and the invoices for the products which they have purchased to the store owned and operated by Hardin & Company, Inc. in Gadsden in order that the invoices may be verified...
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