Acme Tire and Battery Company v. Wirtz
| Decision Date | 09 April 1964 |
| Docket Number | No. 20641.,20641. |
| Parties | ACME TIRE AND BATTERY COMPANY, Inc., Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Danforth Browne, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., William Terrell Hodges, Tampa, Fla., for appellant.
Bessie Margolin, Associate Sol. Dept. of Labor, Washington, D. C., Charles Donahue, Sol. of Labor, Beate Bloch, Warren M. Laddon, Attys., U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Atty., for appellee.
Before TUTTLE, Chief Judge, and PHILLIPS* and JONES, Circuit Judges.
Acme Tire and Battery Company, Inc., hereinafter referred to as Acme, was engaged in the business of selling tires and batteries and recapping tires. From February 5, 1960, to September 15, 1961, Acme employed Frank Mathis as a recapper at its recapping shop in Tampa, Florida, and paid him $69 per week without regard to the specific hours worked per week or per day and without additional compensation for hours worked in excess of 40 per week. The Secretary of Labor, pursuant to a written request from Mathis, filed the instant action against Acme to recover unpaid minimum wages and overtime compensation alleged to be due to Mathis under the provisions of the Fair Labor Standards Act of 1938 (29 U.S.C.A. § 201, et seq.), hereinafter referred to as the Act.
Acme defended on the ground, among others, that its operations were exempt from coverage as a retail or service establishment under § 13(a) (2) and § 13 (a) (4) of the Act. Trial was had to the court and the court concluded that Acme failed to sustain its burden of proving that it was exempt from coverage as a retail or service establishment. Judgment for the Secretary in the amount of $794 was entered and Acme has appealed.
The record on appeal, which embraces only the pleadings, answers of Acme to certain interrogatories and requests for admissions, and the findings of fact and conclusions of law of the trial court, discloses the following facts respecting Acme's operations:
At all times here material, Acme's main place of business was an L-shaped building in Tampa, Florida. One leg of such building housed a central office and a retail outlet, and the other leg housed a recapping shop and warehouse. The two legs of the building were separated by a wall. Acme also maintained two warehouses located elsewhere in Tampa and owned the stock of four separate corporations, each of which operated a retail tire store under the name of Acme Retail Store Corporation, hereinafter referred to collectively as Acme Stores.
All of the merchandise sold at Acme Stores was purchased by Acme, received by it at its main place of business, and then delivered to Acme Stores out of Acme's general stock. Acme Stores were billed the amount which Acme paid the manufacturer. Recapped tires were delivered to Acme Stores by Acme and were billed to them at Acme's cost.
Acme performed the crediting, billing, accounting, preparation of profit and loss statements and other bookkeeping functions for Acme Stores at its main place of business. Acme maintained a separate account for each of the Acme Stores and billed each of such accounts upon delivery of merchandise.
Each of the Acme Stores had a bank account. Acme was authorized to make and did make withdrawals from the bank account of each of such Stores in order to pay indebtedness due from it to Acme for merchandise.
One of the Acme Stores had no recapping facilities of its own and all of the recapped tires sold by it were obtained from Acme. A minimum of 80 per cent of the recapped tires sold by such store was obtained from general stock maintained by Acme at its main place of business. Such tires were not earmarked to be returned to any particular customer's vehicle. The remainder of such recapped tire sales was of tires earmarked to be returned to the vehicles of the customers who brought them in for recapping.
The other three Acme Stores had their own tire recapping equipment and only approximately 10 per cent of the recapped tires sold by them were obtained from Acme. Approximately 50 per cent of the recapped tires sold by such three stores and by Acme at its main place of business were from general stock. The remainder were earmarked to be returned to the vehicles of the customers who brought them in for recapping.
Acme and Acme Stores regularly encouraged customers to exchange their used tires for recapped tires, rather than await the recapping of their own tires, and Acme maintained a stockpile of recapped tires for such sales in its warehouse.
The total volume of sales from Acme's main place of business from February 5, 1960, to September 15, 1961, was $1,214,647.43; the total volume of sales, billings, or transfers from Acme's main place of business to Acme Stores for such period was $387,243.82; the total volume of sales of tires recapped by Acme at its main place of business for such period was $235,023.66; and the total volume of sales of tires recapped by Acme at its main place of business, which were sold, transferred or transported to Acme Stores for such period was $83,143.53.
In the tire recapping industry a central office, warehouse, or processing establishment, which serves a chain of retail stores is not recognized as a retail establishment.1 The tire industry recognizes three classifications of sales: wholesale, commercial, and retail. Approximately 40 per cent of Acme's total sales were commercial sales. Commercial sales are more like retail sales than wholesale sales. However, the evidence failed to establish their exact nature.
Facts were stipulated showing that Acme employed Mathis in "commerce," as defined in the Act, from February 5, 1960, to September 15, 1961.
The Act provides in pertinent part as follows:
To continue reading
Request your trial
-
Wirtz v. Keystone Readers Service, Inc.
...L.Ed.2d 393, 396; Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815, 819; Acme Tire and Battery Co. v. Wirtz, 5 Cir. 1964, 330 F.2d 116, 118. We think that the district court was correct in holding that the retail establishment exemption is inapplicable ......
-
Lewis v. Brandt Furniture, Inc.
...359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959); Wirtz v. C. & P. Shoe Corporation, 336 F.2d 21 (5 Cir. 1964); Acme Tire and Battery Company v. Wirtz, 330 F.2d 116 (5 Cir. 1964); Gatlin v. Mitchell, 287 F.2d 76 (5 Cir. The plaintiffs liken Mr. Brandt's furniture business to a chain store o......
-
Shultz v. Hasam Realty Corp.
...737, 15 L.Ed.2d 694 (1966); Acme Car & Truck Rentals, Inc. v. Hooper, et al., 331 F.2d 442 (5 Cir. 1964); Acme Tire and Battery Co., Inc. v. Wirtz, 330 F.2d 116 (5 Cir. 1964). Minimum wage and overtime compensation standards are specified by Sections 6(a) and 7(a) (1) of the Act, 29 U.S.C. ......
-
Schultz v. Instant Handling, Inc.
...290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815; Acme Car & Truck Rentals, Inc. v. Hooper, 5 Cir. 1964, 331 F.2d 442, 447; Acme Tire & Battery Co. v. Wirtz, 5 Cir. 1964, 330 F.2d 116, 118. Apart from defendants' failure to meet their burden of proof on industry recognition,7 the stipulated facts demo......