Robertson v. Dailey Electric Supply Co., CA 3-4751-C.

• Decision Date: 21 January 1974
• Docket Number: No. CA 3-4751-C.,CA 3-4751-C.
• Citation: 369 F. Supp. 1069
• Parties: James M. ROBERTSON v. DAILEY ELECTRIC SUPPLY CO., and Lucius L. Dailey.
• Court: U.S. District Court — Northern District of Texas

369 F. Supp. 1069

James M. ROBERTSON v. DAILEY ELECTRIC SUPPLY CO., and Lucius L. Dailey.

No. CA 3-4751-C.

United States District Court, N. D. Texas, Dallas Division.

January 21, 1974.

Herbert H. Landau, Dallas, Tex., for plaintiff.

Barney B. Hemphill, Jr., Dallas, Tex., for defendants.

OPINION

WILLIAM M. TAYLOR, Jr., Chief Judge.

Plaintiff James M. Robertson sued his employer Lucius L. Dailey, doing business as Dailey Electric Supply Co., under the Fair Labor Standards Act of 1938, as amended,¹ for back wages and overtime pay in the amount of $1,444 and an additional equal sum as liquidated damages. Dailey's defense, simply stated, is that he is not covered by the statute. I agree, for reasons detailed below, and Robertson is entitled to nothing.

The pleadings and the evidence presented during a trial before the Court show that during the time in question² Robertson was the solitary employee of Dailey's small business. For all practical purposes, Mr. Dailey was Dailey Electric Supply Co. Dailey hired Robertson as a helper for $50 per week.

The business consisted primarily of Dailey's personal purchases in and around Dallas, Texas, of electrical supplies and merchandise (for example, floodlights), then delivering them to his warehouse where he stored them until he found a buyer by personally calling on the local trade. He filled the orders from his warehouse and delivered the goods to his customers. Although many or most of these items were manufactured outside Texas, he bought them in Texas and sold them in Texas. He did no assembling or manufacturing; the character of the merchandise was not changed in any manner.

Robertson's role in the business was no doubt a helpful one, although relatively simple: he answered the telephone, waited on customers, filled orders, kept some books and manned the office when Dailey was absent.

The statute under which this suit was brought provides in part that an employer must pay a specified minimum wage "to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 206 (a). It further requires that an employer pay to covered employees overtime wages of not less than one and one-half times the regular rate for each hour after the fortieth hour in any one workweek. 29 U.S.C. § 207(a)(1).

Robertson contends that Dailey violated the act in two respects—by failing to pay the minimum wage (then $1.60 per hour), and failing to pay the prescribed overtime (at least $2.40 per hour for each hour after 40 hours a week).

It is obvious that Robertson is correct only if (1) Dailey's business was "an enterprise engaged in commerce or the production of goods for commerce" or (2) Robertson himself was an employee "engaged in commerce or the production of goods for commerce."

The first of those questions is easily answered in the negative because of the statutory definition of "enterprise engaged in commerce . . . ." Such an enterprise, according to 29 U.S. C. § 203(s), is one which "has employees engaged in commerce or in the production of goods for commerce . . ." and which has certain annual gross sales volumes. (Emphasis added.) It is undisputed that Robertson was Dailey's only employee; thus, the Dailey firm is not a covered enterprise because it did not have "employees".

The second question requires only slightly more discussion. Dailey cited the Court to the case of Shultz v. National Electric Co., 414 F.2d 1225 (10th Cir. 19...