Ouendag v. Gibson, Civil Action No. 251.

• Decision Date: 12 March 1943
• Docket Number: Civil Action No. 251.
• Parties: OUENDAG et al. v. GIBSON.
• Court: U.S. District Court — Western District of Michigan

49 F. Supp. 379

OUENDAG et al. v. GIBSON.

Civil Action No. 251.

District Court, W. D. Michigan, S. D.

March 12, 1943.

COPYRIGHT MATERIAL OMITTED

Thomas G. Roach, of Grand Rapids, Mich., for plaintiffs.

Earl W. Dunn and Hoffius & Van Kovering, all of Grand Rapids, Mich., for defendant.

RAYMOND, District Judge.

Findings of Fact.

1. Plaintiffs, former employees of defendant, seek to recover for alleged unpaid minimum wages and overtime compensation, as appear by the amended bill of particulars filed herein, together with statutory penalties and costs.

2. During the period covered by plaintiffs' claims, defendant was engaged in a specialty business in Grand Rapids, Michigan, the business consisting principally of the sale of merchandise to customers within the state of Michigan, the sales being made at both wholesale and retail within comparatively short distances from Grand Rapids.

3. The wholesale portion of defendant's business arises largely from the sale of merchandise to various merchants who use the various items as premiums to be resold to customers upon the purchase by such customers of a specified quantity of other merchandise.

4. Another source of defendant's wholesale business is the supplying of merchandise by the defendant to various church or social organizations who dispose of the merchandise to the public in connection with the operation of beano games.

5. Defendant sells at retail to the general public from the stock of merchandise displayed in the store operated by defendant at Grand Rapids.

6. Other branches of defendant's business consist of the following:

(a) The leasing of vending machines for the sale of cigarettes, candy and chewing gum, the owner of the location of such machines receiving a percentage of the profits from the operation of the machine.

(b) The leasing of "digger" machines of a type into which the customer inserts a coin and may obtain various prizes, these machines being located within the state of Michigan and serviced by defendant's employees.

(c) Defendant also places in suitable locations pin ball machines whereby the operator, by the insertion of a coin, has at his disposal metal balls which when propelled establish electrical contacts resulting in certain scores which entitle the player to various types of merchandise.

(d) Retail sales also arise through the use by merchants of defendant's trading stamps, the merchants being supplied with samples of merchandise obtainable through the use of stamps, a stock of the merchandise so procurable being maintained at defendant's store. Those who have saved stamps are permitted to redeem them at defendant's store. The number of stamps which defendant requires in exchange for merchandise is equivalent to the sale by defendant of the merchandise at his regular retail price. This results from the price which defendant places upon the stamps which he sells to merchants.

7. During the years covered by plaintiffs' claims, defendant's wholesale business amounted to from 8% to 17% of the total business.

8. Defendant purchases from outside the state of Michigan the stamps and merchandise which he sells, the goods being transported by interstate carriers who deliver the same to the defendant at the place of business in Grand Rapids where defendant has his retail store, at the rear of which he maintains his principal stock room where the merchandise not displayed in the store is either placed in bins or transferred to a nearby building which defendant uses as a second warehouse.

9. Upon receipt of vending or pin ball machines, they are uncrated at defendant's store room and set up and transferred to various locations for use, or, if not placed in immediate use, are transferred to defendant's warehouse.

10. All purchases of merchandise, machines, or pin ball games were made outright by the defendant and absolute title thereto passed to defendant upon delivery at his warehouse.

11. During the period covered by plaintiffs' claims, defendant sent machines to Chicago for repair or for trade-in on other machines. Of a total of approximately 250 machines on location, defendant, in 1938, returned 2; in 1939, 8; in 1940, 23; in 1941, 16; and in 1942, 3.

12. The amount of time spent by any of plaintiffs in unloading shipments of merchandise and machines from delivery trucks appears from the record to be trifling and unsubstantial, in comparison with their other duties.

13. All wholesale and retail sales and the location of vending machines, pin ball and other machines, after delivery at the warehouse, were wholly in intrastate commerce and were within a limited area near the city of Grand Rapids.

14. The various duties performed by the several plaintiffs herein in connection with defendant's business are as follows:

(a) Plaintiff Vander Bei was engaged principally in the office of defendant. She had general charge of the store, made both wholesale and retail sales, kept defendant's records of both wholesale and retail sales, and of the stamp department, paid freight bills, worked in defendant's stock room in unpacking and placing merchandise, checked newly arrived merchandise against the invoices, marked and priced merchandise, assisted in unloading merchandise, paid transportation charges to the interstate carrier, ordered merchandise by telephone, mail and written order, and several times a year made buying trips to Chicago.

(b) Plaintiff Mosher was a clerk in the store and worked as an assistant to and under the direction of plaintiff Vander Bei, frequently typing orders for merchandise...