Goldberg v. Roberts, No. 16895.

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtBARNES and MERRILL, Circuit , and SWEIGERT
Citation291 F.2d 532
PartiesArthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. Conjetta R. ROBERTS, R. G. Roberts and Dessie Lang, Individually and as Co-partners, Doing Business as Typing and Mailing Unlimited, Appellees.
Decision Date15 June 1961
Docket NumberNo. 16895.

291 F.2d 532 (1961)

Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant,
v.
Conjetta R. ROBERTS, R. G. Roberts and Dessie Lang, Individually and as Co-partners, Doing Business as Typing and Mailing Unlimited, Appellees.

No. 16895.

United States Court of Appeals Ninth Circuit.

June 15, 1961.


291 F.2d 533

Harold C. Nystrom, Acting Solicitor, Charles Donahue, Solicitor, Bessie Margolin, Asst. Solicitor, Judah Best, Atty., U. S. Dept. of Labor, Washington, D. C., Kenneth C. Robertson, Regional Atty., Dept. of Labor, San Francisco, Cal., for appellant.

W. Alan Thody, Los Angeles, Cal., for appellees.

Before BARNES and MERRILL, Circuit Judges, and SWEIGERT, District Judge.

BARNES, Circuit Judge.

Section 17 of the Fair Labor Standards Act (29 U.S.C.A. § 217) authorizes the district court to enjoin violations of the minimum wage, record keeping and shipping provisions of the Act. The Secretary of Labor brought this action, under Section 17, to obtain such injunctive relief. This court has jurisdiction over the appeal. 28 U.S.C. § 1291.

Appellees operate a "letter shop." Theirs is a service enterprise which involves the addressing, stuffing and mailing of letters for various business establishments. The court below found that appellees' business operation comes under the Fair Labor Standards Act since its employees (who do their work at home) produce goods for interstate commerce. The issue was whether appellees' business is taken out of the Act by the exemption provisions of Section 13(a) (2) (29 U.S.C.A. § 213(a) (2)). To qualify for the exemption under Section 13(a), as amended in 1949, appellees must meet three tests:

1. Fifty per cent of the annual dollar volume of sales (of goods and/or services) must be made within the state. It is conceded that this test has been met.

2. Seventy-five per cent of the sales volume must not be for resale. This test, concededly, has been met.

3. Seventy-five per cent of the sales must be recognized, within the industry, as retail sales. On this issue there is dispute, and the court resolved that dispute adversely to the Secretary of Labor.

The trial court recognized, however, that this determination did not dispose of the case. The Secretary of Labor contended, and the trial court agreed, that some businesses are "by their nature `outside the retail concept.'" With respect to such businesses the court does not reach the point of applying the above

291 F.2d 534
mentioned tests; even if such a business meets those tests it cannot qualify for the Section 13 exemption. This "outside the retail concept" is recognized in Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815. The court below, however, held that appellees' business is not outside "the retail concept." Thus appellees' business qualified for the exemption from the Fair Labor Standards Act and the...

To continue reading

Request your trial
13 practice notes
  • Takacs v. A.G. Edwards and Sons, Inc., No. 04 CV 1852 JAH (NLS).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 2, 2006
    ...Kentucky Finance Co., 359 U.S. 290, 292, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959). The Ninth Circuit recognized Mitchell in Goldberg v. Roberts, 291 F.2d 532, 534 (9th Cir.1961), that found that "where it has been established by (pre-1949) interpretation that an industry is not retail, unles......
  • Futrell v. Columbia Club, Inc., No. IP 69-C-176
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • August 2, 1971
    ...F.2d 788; Rachal v. Allen, 5 Cir., 1967, 376 F.2d 999; Goldberg v. Sorvas, 3 Cir., 1961, 294 F.2d 841; Goldberg v. Roberts, 9 Cir., 1961, 291 F.2d 532. The question for the Court then is whether the Club fits within the "retail concept" as contemplated by Congress and the Departme......
  • Brennan v. Parnham, Civ. A. No. 72-674.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 20, 1973
    ...841 (3rd Cir. 1961) (a shopping service which investigated and reported on the efficiency of retail store employees); Goldberg v. Roberts, 291 F.2d 532 (9th Cir. 1961) (a letter shop which provided addressing and mailing The defendant has contended that the Secretary of Labor has, by regula......
  • Schussler v. Employment Consultants, Inc., 71 C 1612.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 22, 1971
    ...110 F.Supp. 918 (N.D.Ill.) affirmed sub nom. Mitchell v. Joyce Agency, Inc., 348 U.S. 945 75 S.Ct. 436, 99 L.Ed. 740; Goldberg v. Roberts, 291 F.2d 532 (CA-9); Wirtz v. Idaho Sheet Metal Works, 335 F.2d 952 (CA-9), affirmed in 383 U.S. 190 86 S.Ct. 737, 15 L.Ed.2d 694; Telephone Answering S......
  • Request a trial to view additional results
13 cases
  • Takacs v. A.G. Edwards and Sons, Inc., No. 04 CV 1852 JAH (NLS).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 2, 2006
    ...Kentucky Finance Co., 359 U.S. 290, 292, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959). The Ninth Circuit recognized Mitchell in Goldberg v. Roberts, 291 F.2d 532, 534 (9th Cir.1961), that found that "where it has been established by (pre-1949) interpretation that an industry is not retail, unles......
  • Futrell v. Columbia Club, Inc., No. IP 69-C-176
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • August 2, 1971
    ...F.2d 788; Rachal v. Allen, 5 Cir., 1967, 376 F.2d 999; Goldberg v. Sorvas, 3 Cir., 1961, 294 F.2d 841; Goldberg v. Roberts, 9 Cir., 1961, 291 F.2d 532. The question for the Court then is whether the Club fits within the "retail concept" as contemplated by Congress and the Departme......
  • Brennan v. Parnham, Civ. A. No. 72-674.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 20, 1973
    ...841 (3rd Cir. 1961) (a shopping service which investigated and reported on the efficiency of retail store employees); Goldberg v. Roberts, 291 F.2d 532 (9th Cir. 1961) (a letter shop which provided addressing and mailing The defendant has contended that the Secretary of Labor has, by regula......
  • Schussler v. Employment Consultants, Inc., 71 C 1612.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 22, 1971
    ...110 F.Supp. 918 (N.D.Ill.) affirmed sub nom. Mitchell v. Joyce Agency, Inc., 348 U.S. 945 75 S.Ct. 436, 99 L.Ed. 740; Goldberg v. Roberts, 291 F.2d 532 (CA-9); Wirtz v. Idaho Sheet Metal Works, 335 F.2d 952 (CA-9), affirmed in 383 U.S. 190 86 S.Ct. 737, 15 L.Ed.2d 694; Telephone Answering S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT