Cullum v. Stevens, Civil Action No. 311.

• Decision Date: 27 March 1942
• Docket Number: Civil Action No. 311.
• Citation: 46 F. Supp. 73
• Parties: CULLUM v. STEVENS.
• Court: U.S. District Court — Northern District of Texas

46 F. Supp. 73

CULLUM v. STEVENS.

Civil Action No. 311.

District Court, N. D. Texas, Fort Worth Division.

March 27, 1942.

E. H. Ratcliff, of Fort Worth, Tex., for plaintiff.

Arthur Haddaway, of Fort Worth, Tex., for defendant.

JAMES CLIFTON WILSON, District Judge.

This is another Wage and Hour case, under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. They are becoming so numerous, with questions still undecided by the Supreme Court, it is getting burdensome to write opinions in each case with a view of making them understandable to strangers to them.

The question is here squarely raised, whether the Act applies where the employee was actually producing goods for commerce, as defined by the Act, while he and his employer were wholly unaware of that fact. Such is admittedly true. They did not know the devices being manufactured, or serviced, as to which it was I must later decide, were passing into interstate commerce after leaving defendant's machine shop.

My construction of the Act is, the lack of such knowledge did not relieve defendant of civil liability where, as here, a substantial portion of the devices were being steadily and directly sold into other States by the local party for whom they were made. Cases like Bagby v. Cleveland Wrecking Co., D.C., 28 F.Supp. 271, and cases there cited do not apply. That such was the intent of Congress is clearly indicated by the absence in the Act of any qualifying words such as knowingly, willfully, etc., in the civil liability provisions of the Act, and their presence, on the other hand, in all of its criminal liability provisions. For one example, this defendant could not be legally convicted for any offense defined in Sec. 215(a) (1) because it in substance provides that it is unlawful for a person to transport, deliver, ship or sell goods, produced in violation of the Wage and Hour provisions, "with knowledge", that such goods were intended for commerce. That express limitation, "with knowledge" in one provision, aside from other qualifying words elsewhere, is significant.

Sec. 216(a) and (b) respectively provide the criminal and civil liabilities. Of that Section, paragraph (a) provides, "any person who willfully violates any of the provisions of section 215 shall upon conviction thereof be subject to a fine", imprisonment, etc. The word, "willfully" applies to every criminal offense defined in the Act. It requires such knowledge of the employer as makes a given act one of determined intentional wrong doing. The next paragraph, (b) of section 216, which immediately follows, prescribes the civil liability for violations. It merely says, "any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." It limits recovery to a violation of the Wage and Hour provisions. The absence of any and all such qualifying words is full of meaning. It would be idle to argue that Congress did not designedly include them in one and exclude them from the other. The discrimination made was essential. It was a precaution the law should take to safeguard the citizens against easy or wrongful conviction for crime, which ordinarily it does not exercise to a like degree in fixing civil liability. In other words, the law was carefully so worded, whether an employer violated it and became liable to any employee for minimum wages or overtime, or both, does not depend upon, or require, proof that the violation was willfully or knowingly or intentionally done. It simply provides for liability, if it is done.

Further, the burden of proof is on plaintiffs in these cases and, as a practical matter, Congress could readily visualize that to require proof by the employee that his employer knew or believed that he was producing goods for interstate commerce would often be a burden impossible of discharge. This is so, because it would involve insurmountable difficulties in proving knowledge as a fact by affirmative proof, but also still greater difficulty in offering circumstantial proof, that would impute sufficient legal knowledge to the employer to enable him to determine for himself whether his production of goods was for commerce, as defined. This defense of a lack of knowledge in the employer that his goods were going into interstate commerce is really equivalent to a defense that a lack of purpose on his part to violate the Act will excuse. In essence, the latter is the defense here interposed. Of course, that is untenable. For the employer to decide or believe that his goods were not going in commerce would mean, as defined, and not infrequently that takes more than a knowledge of all the pertinent facts, but a very accurate personal knowledge of the law, accompanied by the ability to correctly construe it. To appreciate his difficulties in the latter regard we only have to look to the diversity of opinion besetting the lawyers, and flowing from the courts, as to what business comes, or does not come, under the Act. Congress knew to impose any such burdens upon employees would seriously handicap, if not emasculate, any consistent enforcement of the Act to attain the declared policy in its enactment. Again I say, the lack of knowledge of defendant that the devices he made were going into interstate commerce, and therefore, his honest belief that his business did not come under the Act can constitute no defense; that however unintentionally or unwittingly he may have violated the Act, if he nevertheless did violate it, cannot save him from the civil liability, which the law guarantees to the employee.

Lastly, subsec. (b) of section 215, because of the analogy of the subject there dealt with to the one here, may be appropriately looked to. That paragraph pre-supposes that the employee will not know that the goods he worked upon, in a given place, passed into interstate commerce. To supply for any such possible deficiency of knowledge, the paragraph in substance provides that the mere proof that the employee worked in a place, where goods were shipped or sold into interstate commerce, within 90 days prior to the removal of same from the place of his employment, makes out a prima facie case that such employee was engaged in the production of such goods. Of course, it is a presumption of law that can be overcome by evidence, but as a circumstance bearing upon the question here presented, it also strikes me as being rather significant.

The second defense arises under Sec. 213(a) (2), which exempts from the Act "Any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce." The defendant says his machine shop was such an establishment. I do not think so. It is described in the evidence as a general machine shop. I do not mean to say there was no work done by him that might properly be classed as servicing. Assume it was, there was no showing as to how much was intrastate. The entire machine shop was under one roof, with no separate bookkeeping, or department in which servicing work, as distinguished from manufacturing, was carried on.

It is strenuously urged by defendant that the particular work to which plaintiff devoted much of his time was servicing work; that all of the work done for American Metal Products Company, a trade name for Martin E. Marsalis, came in that category. His and defendant's business alike were located in Fort Worth, Texas. Marsalis, among other things, manufactured and sold air conditioning machines for cooling offices, residences etc., in the warm season of the year. It was just another mechanism for blowing moist air into the space or spaces to be cooled. Among its more vital parts was a combination fan and centrifugal water pump, which, when complete, was merely called a pump. The housing for...