Wirtz v. C & P SHOE CORPORATION

• Decision Date: 20 August 1964
• Docket Number: No. 20813.,20813.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. C & P SHOE CORPORATION, Appellee. C & P SHOE CORPORATION, Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

336 F.2d 21 (1964)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. C & P SHOE CORPORATION, Appellee.

C & P SHOE CORPORATION, Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee.

No. 20813.

United States Court of Appeals Fifth Circuit.

August 20, 1964.

COPYRIGHT MATERIAL OMITTED

Miss Beate Bloch, Atty., Dept. of Labor, Washington, D. C., Miss Bessie Margolin, Associate Sol., for appellant.

Maurice Epstein, Boston, Mass., for appellee.

Before RIVES and JONES, Circuit Judges, and BOOTLE, District Judge.

BOOTLE, District Judge.

These appeals present for the second time, five consolidated actions brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(c) pursuant to the written request of thirty-three (33) employees of C & P Shoe Corporation to recover unpaid minimum wages and overtime compensation. On the former appearance of these cases before this Court, it was held that the entry of the shoes into defendant's warehouse did not terminate their interstate journey, but constituted only a temporary pause for convenience in the process of getting them to their final destination, the retail stores. Mitchell v. C & P Shoe Corporation, 286 F.2d 109 (5th Cir. 1960). Our former opinion described defendant's business operations as follows: "Appellee, C & P Shoe Corporation, and its four subsidiary corporations own and operate twenty retail shoe stores within the State of Florida. C & P also owns and operates a central office and warehouse in Fort Lauderdale, Florida. The employees whose activities are involved in this case work in and about the Fort Lauderdale warehouse. Substantially all of the shoes which are sold at retail by the C & P chain are first received at the Fort Lauderdale warehouse from manufacturers and suppliers located outside the State of Florida. At the warehouse, the shoes are unloaded, and a receiving list is prepared, noting the types, sizes and styles of shoes received. This list is sent to the office, where distribution sheets are then prepared designating those stores which will receive the shoes. The cartons in which the shoes arrive are then broken down and the shoes separated in accordance with the distribution sheet. The shoes are `tagged' with a price and code number and shipped on to the retail stores. About half the shoes are distributed immediately following their receipt at the warehouse. The remainder are stacked in the warehouse, where a 30 day inventory is maintained." Mitchell v. C & P Shoe Corporation, supra at 110.

We remanded for findings "on the question of whether the individual plaintiffs devoted a `substantial' part of their work to the interstate operations of the C & P Shoe Corporation" and for determination of other issues left open by the appeal. After further hearings, the District Court found that "the defendant operated a chain store operation of a hybrid retail-wholesale nature. The defendant's central office and warehouse performed certain functions which are customarily performed by wholesalers, and certain other functions customarily performed by retail establishments." Based on this finding, the District Court concluded that those employees whose activities are limited to the retail aspects of this hybrid operation are engaged in a local retail activity and the employer may plead and prove the defense of exemption under Section 13(a) (2). The District Court also held that the exemption under Section 13(a) (1) of the Act which exempts from coverage "any employee employed in a bona fide executive, administrative, professional, or local retailing capacity" applied to certain employees and that Section 13(b) (1) which exempts from Section 7 of the Act "any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service" applied to certain employees.

Each side has appealed. The Secretary has assigned several specifications of error, which he has conveniently grouped under three points as follows.

I

"Defendant should have been held bound by its admissions as to the duties regularly performed by the `taggers,\' and, accordingly, judgment on behalf of the Secretary on their claims should have included compensation for underpayments during every workweek of their employment."

With respect to each tagger, the Secretary requested the defendant, pursuant to Rule 36, Fed.R.Civ.P., to admit that the tagger "was employed by the defendant in its warehouse at Fort Lauderdale, Florida, during workweeks between (specified dates), and regularly each week of her employment devoted a substantial amount of her time to handling, moving, and tagging shoes with code and price numbers, which shoes had been received at said warehouse" and the defendant in writing answered each of said requests as follows: "Defendant admits the allegations of paragraph (the designated paragraph) except that her duties did not include handling or moving shoes except in connection with her performance of her duties as tagger, and with the further understanding that the `code' number refers to style number and that the tagging was done after the shoes had been stored on the shelves and had been subsequently removed from the shelves for shipment to a store."

The tagging operation was as follows: Upon arrival of the shoes from outside the State of Florida at the warehouse, some warehouse employees received them and prepared a receiving record on which was listed the stock number of the shoe and other pertinent data. This receiving sheet was then turned into the office and the office would, in turn, designate distribution for the shoes indicating to what stores the shoes were to be sent. Then the shoes were moved by the warehouse men to the tagging table in carts. The shoes by that time had been removed from the large cartons, but were still in the shoe boxes. The taggers then make out tickets or tags showing the stock number and size and retail price. The taggers then remove the shoes from the individual boxes, pierce the shoes with a very sharp needle, thereby fastening or tying each pair of shoes together and ticketing or tagging them with the stock number, size and retail price, and then put the shoes back in the box, the boxes then being placed on a conveyor belt for storage or immediate delivery to the retail stores.

The District Court held, and we agree, that in all weeks when the regular tagging procedure above outlined was followed, the activities of the taggers were directly concerned with movement of these shoes in commerce, and that during all such weeks the taggers were engaged in commerce within the meaning of the Act.

Notwithstanding the above quoted requests for admissions and answers thereto, the District Court permitted the defendant to offer evidence as to a more limited activity of the taggers during certain periods of the year, thereby relieving the defendant from its admission that "during * * * and regularly each week of her employment (she) devoted a substantial amount of her time to handling, moving, and tagging shoes with code and price number * * *", concluding that "the qualified nature of the defendant's admissions to the generalized request for same did not preclude further proof in detail of the exact nature of the duties of the respective taggers." The Secretary vigorously contends that it was error for the District Court to accept such evidence in view of what the Secretary regards as a solemn and binding admission that during each and every week of the tagger's employment, the tagger devoted a substantial amount of her time to handling, moving, and tagging shoes, and in view of the fact that the defendant gave to the Secretary no advance notice that it would seek relief from its admissions so that the Secretary was left at the trial unprepared to offer evidence as to an issue of fact which he contends was long since precluded by admissions. We find it unnecessary to decide whether or not, under the facts of this case, the District Court erred in relieving the defendant from its admissions, because we are of the opinion that, notwithstanding the evidence adduced by the defendant as to a more limited activity on the part of the taggers, such more limited activity was directly concerned with the movement of these goods in commerce and still caused the taggers to be engaged in commerce within the meaning of the Act. The more limited activity was as follows: If it was at all possible to get the shoes tagged, the defendant would get them tagged, but on occasions it could not get them tagged because of the rush. These rush seasons were six to eight weeks immediately preceding Easter, Christmas and the opening of school. During those weeks, the taggers devoted all of their time to making the tickets so that they could be inserted into the cases that the shoes were in, so that the stores would have the tickets with which to ticket the merchandise. The retail stores had no machines with which to make tickets. The only machines for making tickets were in the warehouse. All that the taggers did during these rush periods was to make tickets and then other employees of defendant would put the tickets in the original cases with the shoes, and the tickets and the shoes would go out from the warehouse together to the retail stores. We think that during all of these rush seasons, the taggers devoted not only a substantial part of their work, but all of their work to interstate operations of the defendant. We think these activities were not only "related to goods whose movement in the channels of interstate commerce" has been established, Walling v. Jacksonville Paper Company, 317 U.S. 564, 572, 63 S.Ct. 332, 337, 87 L.Ed. 460, 468 (1943), but were "actually in or 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....