Lewis v. Brandt Furniture, Inc.

• Citation: 277 F. Supp. 907
• Decision Date: 09 December 1967
• Docket Number: Civ. A. No. 11191,11452.
• Parties: James A. LEWIS et al. v. BRANDT FURNITURE, INC. Willie BERNARD v. BRANDT FURNITURE, INC.
• Court: U.S. District Court — Western District of Louisiana

277 F. Supp. 907

James A. LEWIS et al. v. BRANDT FURNITURE, INC.

Willie BERNARD v. BRANDT FURNITURE, INC.

Civ. A. Nos. 11191, 11452.

United States District Court W. D. Louisiana, Lafayette Division.

December 9, 1967.

Knight & Knight, Jennings, La., for plaintiffs.

Aaron & Aaron, Crowley, La., Davidson, Meaux, Onebane & Donohoe, Lafayette, La., for defendants.

EDWIN F. HUNTER, Jr., District Judge:

These cases were consolidated for trial and decision.

Plaintiffs seek to recover unpaid minimum wages and unpaid overtime compensation, plus damages and attorneys' fees which they allege are due and owing to them under the provisions of the Fair Labor Standards Act (52 Stat. 1060 of 1938, as amended; 29 U.S.C.A. § 201 et seq.).

The Court derives jurisdiction from the provisions of the Act. See, 28 U.S. C.A. § 1337 and 29 U.S.C.A. § 216(b).

Plaintiffs allege that the duties performed by them for the defendant consisted substantially of receiving, unloading, and otherwise handling goods shipped from outside the State of Louisiana, and that they were, therefore, engaged in commerce and in the production of goods for commerce within the meaning of the Act. Defendant admits the above allegation, but asserts that it is exempted from the wage and hour requirements of the Act by virtue of the fact that it is a "retail or service establishment" under Section 13(a) (2) of the Act—29 U.S.C.A. § 213(a) (2).

The essential facts are not in serious dispute. Mr. Jacob Brandt is the owner and operator of two retail furniture stores: one located in Crowley, Louisiana, doing business as a corporation by the name of Brandt Furniture, Inc. (which is made the defendant in the cases at bar); the other located in Rayne, Louisiana, doing business as a corporation by the name of Brandt Furniture of Rayne, Inc. Brandt Furniture, Inc., the Crowley store, leases a separate warehouse or storeroom on East Mill Street in Crowley; it is a corrugated iron structure, measuring 100' × 40'. This building is located several blocks away from the Brandt Furniture, Inc. retail outlet and showroom facility, and it is situated near a railroad siding.

It is admitted by plaintiffs that the operations of the two furniture store retail outlet facilities each qualify for the retail exemption. However, plaintiffs vigorously contend that the operation of the warehouse facility does not escape coverage, because it is not part of a "retail establishment." They argue that the East Mill Street building is not merely a storeroom for back-up merchandise used in the two retail showrooms, but that the building is in fact a wholesale warehouse of the type appurtenant to a chain store system, and that they are central warehouse employees.

Let us consider Mr. Brandt's furniture store operations during the period sued upon—from June 21, 1963 through June 21, 1965—and the interrelationship of the three buildings in question. Brandt Furniture, Inc., the Crowley store, made fifty per cent (50%) of its sales within the State of Louisiana, that seventy-five per cent (75%) of those sales were not for re-sale, and that seventy-five per cent (75%) of those sales would qualify as retail sales within the furniture industry.¹ We consider Brandt Furniture, Inc. to include both the Crowley retail outlet and the East Mill Street warehouse. Therefore, if both of the buildings involved can be viewed as integral or inseparable parts of a single "establishment," it is agreed that the retail exemption will apply; and all employees "employed by" that establishment would be excluded from the benefits of the Act, with no distinction being made on the basis of where the employees did their work. Fair Labor Standards Act, Section 13(a) (2); 29 U.S.C.A. § 213(a) (2). See 29 C.F.R. 779, 779.301, 779.313 (1964, reprint May 3, 1966); CCH-Labor Law Guide, Vol. 1, § 5281, pp. 4126-4127 (1-27-67); Labor Relations Reporter, vol. 6, WHM 91:1422 (2-4-67).

It has been stipulated that Brandt Furniture, Inc., of Crowley, received sixty per cent (60%) of its dollar volume of purchases at the furniture store retail outlet building, and that forty per cent (40%) of the dollar volume of purchases were received at the East Mill Street warehouse. It was further stipulated that Brandt Furniture of Rayne, Inc. receives virtually all of its merchandise from or through the facilities of Brandt Furniture, Inc. The merchandise received by the Rayne store is taken both from the Crowley retail outlet building and the warehouse on East Mill Street.

The Crowley retail outlet building has a storage area on the second floor where small appliances and small furniture pieces are held. The Rayne retail outlet has no storage facility. Large appliances and bulky pieces of furniture are received and stored at the East Mill Street warehouse; this merchandise is most often unloaded at the warehouse from railway boxcars or trucks.

The merchandise in all three of these buildings might be described as a "pool" of goods which is drawn upon by Mr. Brandt for either of his two corporate retail stores; the following is an excerpt from Jacob Brandt's deposition taken August 28, 1967, during which time he was being questioned by plaintiffs' counsel:

"Q. Now, did you have occasion during the period—now I'm speaking now of '63, '64, '65 period—did you have occasion to ship merchandise from Crowley, say, to the Rayne Store?

"A. Yes, sir, we shifted merchandise. We sent merchandise back and forth from our floor to their floor. Because, if they had merchandise on their floor and we needed it and we had nothing—we sold it—we would take it away from them and then give them something else to replace it from our Store. That was open merchandise exposed on our floor and on their floor.

"Q. I see.

"A. It's the normal thing to do. If, for example, you keep a table too long in one place it won't move, but if you move it upstairs it'll sell.

"Q. Now, you had no, what we would call, separate building where you took in all of your incoming furniture and merchandise, and say, either up-packed it or stored it for any length of time?

"A. (Witness shakes head indicating "No") * * * Most of the merchandise was delivered to our Store right here in Crowley. On the bulky stuff, we did have a stopping place there at the East Mill Street warehouse, because it was too hard to handle and display at one time. We had Refrigerators sic, Washers sic, mattresses, box springs—things of that sort—that we had to have a dumping point to get a chance to make up beds, and so on, and bring the matresses over to our store. We just couldn't take them all at once." p. 11.

At times a boxcar would arrive which was loaded with merchandise ordered from a factory or wholesale distributor by the Crowley store, by the Rayne store and by other dealers in the area. Each store usually sent a truck to pick up its merchandise. The merchandise for the Crowley store might be brought immediately to the Crowley retail outlet building; or it might be stored in the East Mill Street warehouse. The merchandise for the Rayne store might be picked up and delivered directly to Rayne; or it might be stored in the warehouse until the Rayne store could send a truck to pick it up or until the Crowley store had occasion to send a truck to Rayne or its environs; or else, a Crowley truck might make a special trip to Rayne to deliver the merchandise.

No separate records were kept on any of the merchandise in the warehouse; instead, that merchandise was included in the general inventory of Brandt Furniture, Inc. The following is an excerpt from the deposition of Brandt:

"Q. Now, you didn't keep any separate books on this Mill Street operation?

"A. No, sir. We, frankly, we never knew, within any reasonable figure, what was in there—except that we had merchandise there and we would go look for it.

"Q. Well, I take it then, when you would, say, conduct * * * inventory around the first of the year, that merchandise in the Mill Street properties were inventoried as merchandise in your Crowley operation, so to speak?

"A. That's right.

"Q. There was no separation of those two (2) operations, either by virtue of paying taxes on the merchandise or any other way?

"A. No, there's no separation. We had, actually, in my opinion, no record —Well, I know we had no record of any particular items or anything else that was in the warehouse. If we wanted something and we knew we didn't have it on the floor, we would go look for it." p. 16.

The plaintiffs were employed primarily as either servicemen or deliverymen, and one was a porter. They reported for work each morning at the Crowley retail outlet building. They performed chores incident to a retail furniture business. The servicemen serviced and installed appliances for customers. The deliverymen delivered merchandise and installed linoleum and carpeting. All were subject to being called upon to lend a hand in any task that might present itself. All were at one time or another, and some quite often, required to help in the unloading of newly arrived merchandise. This merchandise might be unloaded from trucks onto the sidewalk in front of the retail outlet building, or from trucks or railway boxcars at the warehouse. No employee was assigned to the warehouse on a full-time basis; all of the plaintiffs spent substantially more of their employment time engaged in activities away from the warehouse. Whenever there was something that had to be done at the warehouse, Mr. Brandt would send whomever was most available.

The issue presented for this Court's determination is whether or not the plaintiffs, who aided in unloading goods which had moved in interstate commerce and which were placed in the East Mill Street warehouse by them, were entitled to minimum wage and overtime compensation benefits because of this "handling" of goods in commerce, or whether this activity is excluded from the provisions of the Act because their employer, Brandt Furniture, Inc., qualifies as...