Armstrong Co. v. Walling, 4232.
| Citation | 161 F.2d 515 |
| Decision Date | 07 May 1947 |
| Docket Number | No. 4232.,4232. |
| Parties | ARMSTRONG CO. v. WALLING. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
George A. McLaughlin, of Boston, Mass., for appellant.
Frederick U. Reel, Dept. of Labor, William S. Tyson, Sol., Bessie Margolin, Asst. Sol., and Morton Liftin, U. S. Department of Labor, all of Washington, D. C., and George H. Foley, Regional Atty., of Boston, Mass., for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
The Administrator of the Wage and Hour Division, United States Department of Labor, brought this action under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq., to enjoin the appellant from violating the provisions of § 15(a) (1) and (2) of the Act. The parties hereto have agreed upon the facts in the case and the lower court has adopted them as its findings.
The appellant, a Massachusetts corporation with its principal office and place of business in the Boston and Maine Railroad Station, in the City of Boston (known as the North Station), maintains retail stands or selling counters located in places easily accessible to the public, in the North Station as well as in other railroad stations in Massachusetts, Maine, New Hampshire and Vermont, where sales of sandwiches, coffee, milk and like products, as well as books, periodicals, candy and smoking supplies, are sold by clerks to the public. There are several of these stands in the concourse in the North Station. It also maintains a commissary in the North Station which has direct communication with the stands on the concourse by means of an arcade. The arcade is owned by the Boston and Maine Railroad and is used as a sidewalk by the general public. It consists of an area over which part of the railroad building is built. The door of the commissary is located 15 feet and 4 inches from the door to the North Station proper. There is no sidewalk on the westerly side of Causeway Street except the sidewalk located on Boston and Maine Railroad property and in the arcade. This commissary serves as both kitchen and storeroom for the company's stands in the North Station as well as those outside of Massachusetts. Appellant also maintains a train service department whose employees are furnished with sandwiches, tonics, and other related items, which they sell on commission on the trains leaving the North Station for points inside and outside Massachusetts. No sales are made at the commissary but it regularly transfers at cost as often as required sandwiches, milk, tonic, etc. to the retail stands in the North Station, those outside the state and its train service department. About 4 per cent of the total volume of commissary business is transferred to the train service department. No books are kept other than daily records which are forwarded to the central bookkeeping office also located in the North Station. This commissary, the train service department, and the stands both in and outside of Massachusetts are all under one unified management. The commissary employs from nine to eleven employees in addition to a day manager and night manager, all of whom work at the various types of duties performed there, but the greater part of their employment is the making and wrapping of sandwiches.
The appellant also maintains a large warehouse some distance from the North Station which is in full compliance with the Act and with which we are not here concerned.
The lower court held that the employees of the appellant working in its commissary were within the coverage of the Act as employees engaged in the production of goods for commerce under the provisions of § 3(i) and (j) and that they are not exempt within the meaning of § 13(a) (1) or (2) of the Act. It issued its injunction accordingly and the appellant has appealed.
It is argued that the commissary employees are exempt from the requirements of the Act by the provisions of § 13(a) (1) or § 13(a) (2) because they are performing work of a local retailing capacity or because the commissary is a part of one retail establishment. With this we do not agree.
The commissary is integrated with, but physically distinct from, the stands in the station where the retail functions are carried on. It is a distinct place of business and is an establishment under the Act. It bears no closer relationship to the stands in the concourse than it does to the other stands in the various railroad stations inside and outside Massachusetts, and to the train service department. See Phillips Co. v. Walling, 1945, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095, 157 A.L.R. 876. There are no sales there and no retail transactions of any kind. Its only business is supplying the stands throughout the system and the railroad train service. The business carried on there more closely resembles that of a warehouse or wholesale establishment than a retail store. Cf. Walling v. Goldblatt Bros., Inc., 7 Cir., 1945, 152 F.2d 475, certiorari denied 1946, 328 U.S. 854, 66 S.Ct. 1344. While the business in the commissary may not be of a wholesale nature it certainly is not of a retail nature and to bring it within the exemption of § 13(a) (2) the burden is upon the appellant to prove that its employees are within the letter and spirit of the...
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