Jax Beer Co. v. Redfern, 9877.

• Decision Date: 10 December 1941
• Docket Number: No. 9877.,9877.
• Parties: JAX BEER CO. v. REDFERN.
• Court: U.S. Court of Appeals — Fifth Circuit

124 F.2d 172 (1941)

JAX BEER CO. v. REDFERN.

No. 9877.

Circuit Court of Appeals, Fifth Circuit.

December 10, 1941.

Emil Corenbleth, of Dallas, Tex., and F. F. Beadle, of Houston, Tex., for appellant.

Bruce L. Graham, of Dallas, Tex., for appellee.

Irving J. Levy, Asst. Sol., U. S. Dept. of Labor, of Washington, D. C., for amicus curiae.

Before FOSTER and McCORD, Circuit Judges, and DAWKINS, District Judge.

McCORD, Circuit Judge.

R. J. Redfern, individually and for the use and benefit of his co-employee, W. E. Wadsworth, brought suit against Jax Beer Company to recover overtime compensation, liquidated damages, and attorney's fees under the provisions of Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219. The case was tried before the court without a jury, and judgment was rendered for the employees. Jax Beer Company has appealed.

The employment of Redfern and Wadsworth was in existence before the advent of the Fair Labor Standards Act, and continued after the act went into effect. This suit was brought almost two years after the alleged overtime work had been performed.

The record shows that Redfern and Wadsworth were employed by Jax Beer Company, a Texas corporation, to make deliveries of beer by truck to its Dallas customers, and that they were required to work on local delivery routes and were not permitted to sell or deliver beer except in the limited territory assigned to them. In their original petition plaintiffs sought recovery of overtime based upon an alleged salary of $14.70 per week, but this petition was amended at the suggestion of the court after evidence had been introduced showing that they received $14.70 per week and three cents per case commission on all beer delivered by them.

The nature of Jax Beer Company's business, and the relationship and duties of Redfern and Wadsworth is found in the record in "Plaintiff's Exhibit 1", which is an agreed statement of facts and reads as follows:

"The beer handled by plaintiffs is brewed in New Orleans, Louisiana by Jackson Brewing Company, a corporation. Since June 29, 1939 the beer has been shipped by Jackson Brewing Company in New Orleans to Jax Beer Company at Dallas by direct rail shipments. The cars upon arrival are unloaded and the beer placed in defendant's warehouse in Dallas, from which warehouse the trucks driven by plaintiffs are loaded and plaintiffs distribute such beer by such trucks to retail customers of Jax Beer Company in or near the City of Dallas, Texas.

"Jax Beer Company is a wholesale distributor of beer and holds a general distributor's license under the laws of the State of Texas. Jax Beer Company does not sell to the ultimate consumer.

"Prior to June 29, 1939 the beer handled by Jax Beer Company at its Dallas branch, including the beer handled by plaintiffs prior to that date, was received by it at Houston, Texas, being shipped to Houston, Texas, partly by direct rail shipments from Jackson Brewing Company, and was transported by it from Houston to Dallas by its own owned or leased trucks, from which trucks the beer, upon arrival in Dallas, was unloaded into its Dallas warehouse and from there, in turn, loaded out onto the trucks driven by plaintiffs, the same as the beer received direct from New Orleans has been handled since June 29, 1939."

After careful reading of the findings of the trial court, we are of opinion that he misinterpreted the agreed statement of facts. The trial court stated in his findings: "It is not a case where goods were purchased from outside of the State and then came to rest for sale to some parties who would come in and inspect and look at it and buy it. Here is the agent of the manufacturer in Louisiana, has a depot here for distribution. I think it is a very clear case of interstate commerce." In this there was error. There is no evidence in the record showing that Jax Beer Company was the agent of Jackson Brewing Company of Louisiana, and the agreed statement of facts and the undisputed evidence clearly shows that it was not. It is also clear from the agreed statement, and other evidence in the case, that Jax Beer Company, and not Jackson Brewing Company, owned the Dallas warehouse; that the warehouse was not the depot for Jackson Brewing Company; that when the beer shipped from Louisiana by the Jackson Brewing Company was received in Dallas by the appellant, it was unloaded and stored in the warehouse belonging to Jax Beer Company; and that the trucks which delivered the beer belonged to Jax Beer Company.

We turn to the question of whether Redfern and Wadsworth were, under the agreed and undisputed facts, entitled to the benefits of the minimum wage and overtime provisions of Sections 6(a) and 7(a) of the Fair Labor Standards Act. In support of the findings and judgment of the lower court the appellees contend that Jax Beer Company was engaged in interstate commerce; that its warehouse was but a temporary place of storage for the beer received from out the State; and that the flow of commerce did not end until the beer reached the ultimate consumer. We think it clear that the local selling and distribution of beer by the appellant is intrastate — not interstate — in character. The mere fact that Jax Beer Company engaged in interstate commerce by purchasing its beer from a Louisiana corporation and having it shipped to Texas does not compel a finding that all of its employees were engaged in commerce within the meaning of the act.

As to what is and what is not interstate commerce the appellees and the Administrator of the Wage and Hour Division, in his brief as amicus curiae, lay stress upon the language contained in many decisions under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. These cases are not altogether applicable for, as pointed out by the Supreme Court, the "critical words" of the National Labor Relations Act are "affecting commerce". Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954. Sections 6(a) and 7(a) of the Fair Labor Standards Act do not employ these "critical words", but instead provide that employers shall pay specified minimum wages and overtime to each of their employees "who is engaged in commerce or in the production of goods for commerce". These words make application of the minimum wage and maximum hour provisions of the act dependent upon the nature of the work performed by the particular employee, and not upon the fact that the business of the employer may in some manner "affect commerce". This interpretation would appear to be the one intended by Congress when it enacted the law. In the case of Jewell Tea Company v. Williams, 118 F.2d 202, 206, the Tenth Circuit Court of Appeals, in interpreting the act, alluded to the legislative history of the statute, and pointed out that as originally passed by the Senate it was limited to employees engaged in or producing goods for interstate commerce; that the House, by amendment, broadened the coverage by requiring time and a half for all employees of an employer "engaged in commerce in an industry affecting commerce"; that in the...