Phillips v. Star Overall Dry Cleaning Laundry Co., No. 78.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtCLARK, Circuit (concurring)
Citation149 F.2d 416
PartiesPHILLIPS et al. v. STAR OVERALL DRY CLEANING LAUNDRY CO., Inc., et al.
Decision Date07 May 1945
Docket NumberNo. 78.

149 F.2d 416 (1945)

PHILLIPS et al.
v.
STAR OVERALL DRY CLEANING LAUNDRY CO., Inc., et al.

No. 78.

Circuit Court of Appeals, Second Circuit.

May 7, 1945.


149 F.2d 417
COPYRIGHT MATERIAL OMITTED
149 F.2d 418
Before L. HAND, CHASE, and CLARK, Circuit Judges

CHASE, Circuit Judge.

As Star was not the employer of the plaintiffs, it is clear that the complaint was properly dismissed as to it and no one now disputes that.

It should be noted at the outset that the plaintiffs were not engaged in interstate commerce simply because they performed part of the work involved in washing or otherwise cleaning and making ready for delivery to Star garments which Star later returned to its interstate customers as and when it saw fit to do so. Whether an employee is engaged in interstate commerce for the purposes of the Fair Labor Standards Act depends not upon "whether the employee's activities affect or indirectly relate to interstate commerce but upon whether they are actually in or so closely related to the movement of the commerce as to be a part of it. Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase `production of goods for commerce.'" McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538. If these plaintiffs are within the statute it must be because they are engaged in the production of goods for commerce. That alone would be enough to bring them within the Act unless the exemptions of § 13 apply to them. United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; Fleming v. Arsenal Building Corporation, 2 Cir., 125 F.2d 278. As it appears that about four per cent of the cleaning and pressing which the appellant did for Star was of garments used in Star's interstate business and that the plaintiffs were engaged in this work, it is obvious that if this was a production of goods within the statute it was a production of goods for interstate commerce.

We think it clear that the cleaning and pressing of these garments was work in an occupation "necessary to the production" of goods for commerce within § 3(j). A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638.

In § 3(j) of the Act are found the statutory definition of "produced" and a statement of the conditions upon which an employee "shall be deemed to have been engaged in the production of goods" within the scope of the statute. That subsection reads as follows:

"(j) `Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State."

Assuming for the moment that the garments cleaned and pressed were "goods" as defined in the statute, there can be no fair doubt but that the plaintiffs were engaged in the "production" of them within the meaning of that term in the statute. They were engaged in doing what of necessity required that the garments be "handled" or in some other manner "worked on."

Whether these garments were "goods" within the statutory meaning depends upon whether they are excluded by the last part of the definition of "goods" found in § 3(i) of the Act. That subdivision reads as follows:

"(i) `Goods' means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof."

149 F.2d 419

In determining whether the garments cleaned and pressed are within the statute as goods we will lay aside those, if any, which may have been owned by the people who wore them. Though it may be that those who wore such garments out were ultimate consumers "other than a producer, manufacturer, or processor thereof", we now find it unnecessary to decide whether garments which may have been delivered "into the actual physical possession" of such ultimate consumers ceased upon such delivery to be goods within the Act. A large part if not all, of the garments were in...

To continue reading

Request your trial
12 practice notes
  • Wirtz v. Soft Drinks of Shreveport, Inc., Civ. A. No. 12987.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 23 Diciembre 1971
    ...(5 Cir., 1962) reh. den'd; Foremost Dairies v. Ivey, 204 F.2d 186 (5 Cir., 1953); Phillips v. Star Over-All Dry Cleaning Laundry Company, 149 F.2d 416 (2 Cir., 1945); Young v. Calderera, 12 W.H. Cases 217 Three cases laid the ground work for a Fifth Circuit decision which we conclude is dis......
  • Brennan v. Jaffey, Civ. A. No. 74-7.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 7 Agosto 1974
    ...the "ultimate consumer" of those items within the meaning of § 203(i). Cf. Phillips v. Star Overall Dry Cleaning Laundry Co., 149 F.2d 416, 419 (2nd Cir. 1945), cert. denied 327 U.S. 780, 66 S.Ct. 677, 90 L.Ed. 1008 4 Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 6......
  • Wirtz v. Old Dominion Corporation, Civ. A. No. 4583.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 14 Junio 1968
    ...Bank case. See Colquette v. Crossett Lumber Co., 149 F.2d 116, 117 (8th Cir. 1945); Phillips v. Star Overall Dry Cleaning Laundry Co., 149 F.2d 416, 420 (2d Cir. 1945); Kreeft v. R. W. Bates Piece Dye Works, Inc., 150 F.2d 818 (2d Cir. 1945); and Stanger v. Vocafilm Corp., 151 F.2d 894, 896......
  • Crabb v. Welden Bros., No. 13435-13439.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 1 Diciembre 1947
    ...Brue et al. v. J. Rich Steers, Inc., et al., D.C. S.D. N.Y., 60 F.Supp. 668; Phillips v. Star Overall Dry Cleaning Laundry Co., 2 Cir., 149 F.2d 416. There can therefore be no recovery by Dedrick; neither can there be any recovery by Peterson and Vollum, unless these employees were entitled......
  • Request a trial to view additional results
12 cases
  • Wirtz v. Soft Drinks of Shreveport, Inc., Civ. A. No. 12987.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 23 Diciembre 1971
    ...(5 Cir., 1962) reh. den'd; Foremost Dairies v. Ivey, 204 F.2d 186 (5 Cir., 1953); Phillips v. Star Over-All Dry Cleaning Laundry Company, 149 F.2d 416 (2 Cir., 1945); Young v. Calderera, 12 W.H. Cases 217 Three cases laid the ground work for a Fifth Circuit decision which we conclude is dis......
  • Brennan v. Jaffey, Civ. A. No. 74-7.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 7 Agosto 1974
    ...the "ultimate consumer" of those items within the meaning of § 203(i). Cf. Phillips v. Star Overall Dry Cleaning Laundry Co., 149 F.2d 416, 419 (2nd Cir. 1945), cert. denied 327 U.S. 780, 66 S.Ct. 677, 90 L.Ed. 1008 4 Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 6......
  • Wirtz v. Old Dominion Corporation, Civ. A. No. 4583.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 14 Junio 1968
    ...Bank case. See Colquette v. Crossett Lumber Co., 149 F.2d 116, 117 (8th Cir. 1945); Phillips v. Star Overall Dry Cleaning Laundry Co., 149 F.2d 416, 420 (2d Cir. 1945); Kreeft v. R. W. Bates Piece Dye Works, Inc., 150 F.2d 818 (2d Cir. 1945); and Stanger v. Vocafilm Corp., 151 F.2d 894, 896......
  • Crabb v. Welden Bros., No. 13435-13439.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 1 Diciembre 1947
    ...Brue et al. v. J. Rich Steers, Inc., et al., D.C. S.D. N.Y., 60 F.Supp. 668; Phillips v. Star Overall Dry Cleaning Laundry Co., 2 Cir., 149 F.2d 416. There can therefore be no recovery by Dedrick; neither can there be any recovery by Peterson and Vollum, unless these employees were entitled......
  • 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