Guess v. Montague
Decision Date | 16 September 1943 |
Docket Number | No. 5089.,5089. |
Parties | GUESS et al. v. MONTAGUE. |
Court | U.S. Court of Appeals — Fourth Circuit |
W. K. Charles, of Greenwood, S. C. (L. D. Jennings, of Sumter, S. C., on the brief), for appellants.
John D. Lee, of Sumter, S. C. (Lee & Moise, of Sumter, S. C., on the brief), for appellee.
Frederick U. Reel, Atty., U. S. Department of Labor, of Washington, D. C. (Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., George A. Downing, Regional Atty., of Atlanta, Ga., and Morton Liftin, Atty., U. S. Department of Labor, of Washington, D. C., on the brief), for Administrator of Wage and Hour Division, U. S. Department of Labor, as amicus curiae.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
This is an appeal from a judgment for defendant in an action instituted to recover unpaid minimum wages, overtime compensation, etc., under section 16(b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U.S. C.A. § 216(b). The trial court directed a verdict for the defendant on the ground that he was operating a service establishment the greater part of whose selling or servicing was in intrastate commerce within the meaning of section 13(a) (2) of the act, 29 U.S.C.A. § 213(a) (2), and on the further ground that the plaintiffs had been paid in good faith the minimum wages due them before institution of suit and before any controversy arose as to their rights under the act.
Defendant operated a machinery repair shop, in which he repaired machinery for his customers, sold repair parts and rebuilt and sold secondhand machinery which he had purchased. A substantial part of the business done was in interstate commerce and it does not appear that any records were kept separating the labor performed in connection with interstate transactions from those purely intrastate or that it would have been feasible to make such separation. The nature of the business and of the work done by plaintiffs therein is correctly set forth in the brief of the Administrator of the Wage and Hour Division, filed amicus curiae, from which we quote as follows:
We do not think that a machine shop of the sort operated by defendant can be held to be a service establishment within the meaning of the exemption contained in section 13(a) (2) of the statute. It is to be noted that the language of the exemption is "retail or service establishment the greater part of whose selling or servicing is in intrastate commerce", and that the purpose of the exemption, as shown by the history of the act, was to make certain that retailers located near and making occasional sales across state lines would not be covered by the provisions of the act. Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 337, 87 L.Ed. ___; Walling v. American Stores Co., 3 Cir., 133 F.2d 840, 843. As said in the case last cited:
In Bracey v. Luray, 4 Cir., 138 F.2d 8, this day decided, we hold that a retail establishment within the meaning of the exemption is one which sells in small quantities to the ultimate consumer. On the principle noscitur a sociis, the "service" establishment contemplated by the exemption must be of the same sort as the "retail" establishment therein referred to, i. e. it must be one "selling services to consumers", and this is the clear intimation of the Supreme Court. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 526, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638. As suggested by the Circuit Court of Appeals of the Second Circuit in Fleming v. Arsenal Building Corporation, 2 Cir., 125 F.2d 278, 280, we think that the exemption "should be limited to those who serve consumers directly, like tailors, or garages, or laundries". Other illustrations of service establishments within the meaning of the statute have been given as "barber shops, beauty parlors, shoe-shining parlors, clothes pressing clubs, laundries, automobile repair shops, or the like." Wood v. Central Sand & Gravel Co., D.C., 33 F. Supp. 40, 47; Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567, 572.
It is clear, we think, that the business of defendant cannot be brought within the exemption. While the repair of machinery for customers, if there were nothing more, might fall within the exemption, the very substantial business of conditioning and selling scrap would certainly not come within it. Bracey v. Luray, supra. Nor would the work done in rebuilding and reconditioning secondhand machinery for sale by defendant fall within the exemption, which does not extend to manufacturing or processing goods for sale. Collins v. Kidd Dairy & Ice Co., 5 Cir., 132 F.2d 79; Walling v. Peoples Packing Co., 10 Cir., 132 F.2d 236; Samuels v. Houston, D. C., 46 F.Supp. 364. Nor, in such cases, is the employer's business any the less within the coverage of the act because some part of his activities may include intrastate retail sales or servicing. Collins v. Kidd Dairy Co. supra; Cullum v. Stevens, D.C., 46 F.Supp. 73; Samuels v. Houston, supra. Cf. Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52.
As to the second ground upon which the court below directed the verdict, it appears that defendant paid to the plaintiffs Guess, Rodrigue, Weathersbee and Jones, before institution of suit and before any controversy had arisen, the full amount due them as minimum wages. Defendant was doubtful as to whether the act applied to his business, but upon being advised that it did, he called in these plaintiffs, explained the situation to them and tendered them checks for the full amount of the balance due them as wages under the minimum wage law. They accepted these payments in full settlement, without reservation of any rights, and executed receipts in full releasing defend...
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