Schroepfer v. AS Abell Co., 5097.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PARKER, SOPER, and NORTHCOTT, Circuit
• Citation: 138 F.2d 111
• Parties: SCHROEPFER et al. v. A. S. ABELL CO., Inc.
• Docket Number: No. 5097.,5097.
• Decision Date: 17 January 1944

138 F.2d 111 (1943)

SCHROEPFER et al.
v.
A. S. ABELL CO., Inc.

No. 5097.

Circuit Court of Appeals, Fourth Circuit.

September 16, 1943.

Writ of Certiorari Denied January 17, 1944.

138 F.2d 112

I. Duke Avnet and William Taft Feldman, both of Baltimore, Md., for appellants.

William D. Macmillan, of Baltimore, Md. (Semmes, Bowen & Semmes, of Baltimore, Md., on the brief), for appellee.

Frederick U. Reel, Atty., U. S. Department of Labor, of Washington, D. C. (Douglas B. Maggs, Solicitor, and Bessie Margolin, Asst. Solicitor, both of Washington, D. C., Beverley R. Worrell, Regional Atty., of Richmond, Va., and Morton Liftin and Joseph I. Nachman, Attys., U. S. Department of Labor, both of Washington, D. C., on the brief), for Administrator of Wage and Hour Division, U. S. Department of Labor, amicus curiæ.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

Writ of Certiorari Denied January 17, 1944. See 64 S.Ct. 486.

PARKER, Circuit Judge.

This is an appeal in an action instituted under the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219, to recover unpaid minimum wages, overtime compensation, etc. Plaintiffs are two rackmen and a rackman's helper engaged in distributing newspapers to racks and stores in the City of Baltimore. The defendant is the company engaged in publishing the Baltimore Sun. The judge below held that plaintiffs were not employees of defendant within the meaning of the act, but that two of them were independent contractors and the third was employed by the others as a helper. He held also that plaintiffs were not engaged in commerce or the production of goods for commerce within the meaning of the act. Schroepfer v. A. S. Abell Co., D.C., 48 F.Supp. 88.

The facts bearing on the issue as to whether or not the plaintiffs were employees of defendant are voluminous and complicated and are fully and fairly stated in the opinion below. Whether upon these facts plaintiffs were employees of defendant within the meaning of the act is a question not free from difficulty. (Cf. Southern R. Co. v. Black, 4 Cir., 127 F.2d 280), but it is one which it is not necessary for us to decide, since we are of opinion that, even if considered employees of defendant, plaintiffs were not engaged in commerce within the meaning of the act. They had nothing to do with collecting news, assembling it, printing the paper, or any other activity in which interstate commerce was involved. Their only duties related to the retail sale of papers, or delivery thereof for retail sale, in the City of Baltimore. The pertinent facts with

138 F.2d 113

reference to this aspect of the case are thus stated by the court below

"2. Two of the plaintiffs, Fred and Charles R. Schroepfer, brothers but suing separately and individually for deficiency in compensation, were during the period involved in this suit, October 24, 1938, to January 19, 1942, occupied as distributors of the defendant's newspapers, to street corner vending machines and to stores wholly located in portions of Baltimore City or the immediately adjacent county. The third plaintiff, Abraham Berry, was principally employed as a helper by the Schroepfers, part of the time by one and at other times by the other, and was paid by them respectively. On Saturday nights Berry was also directly employed by the defendant for about eight hours and for that work was paid by the defendant.

"3. The Schroepfers were known in the business as rack-men. Their relations with the defendant were not defined in writing and had existed for several years prior to October 24, 1938, when the Fair Labor Standards Act became effective. Each had a separate territory for the distribution and sale of newspapers. Their activities consisted in the delivery of the several successive editions of the daily newspapers to the street-corner vending machines, and of the Sunday papers to some stores in their respective territories. The vending machines were in the general form of metal racks placed on various street corners, holding a number of copies of papers, with a receptacle under lock and key for the deposit of coins to be made by the purchasers of the papers. The rack-men, of whom there were about fourteen for Baltimore City, collected the money daily from the vending machines. They were entitled to retain or be credited with the whole of the money so collected. Their accounting with the defendant was as follows: They were charged at wholesale rates, about 1¢ per paper less than the price paid by the purchaser, for the number of papers that they received from the plant of the defendant in Baltimore City, and also about $3.00 per week for so-called rack rental; and they were credited with the amount of currency collected from the vending machines and turned in to the defendant's office; and with the wholesale price of papers returned as not resold to the public; and were also credited with $25.00 per week for an allowance on account of the expenses of ownership and operation of their own automobiles used in distributing the papers, with a further allowance of $3.00 weekly for delivery of Sunday papers to various stores, since they received no personal profit from the sale of Sunday papers. * * *"

There is no question but that the defendant is engaged in interstate commerce with respect to the publication of its papers, the gathering of news therefor and the sale of the portion of its papers sent out of the state. N. L. R. B. v. A. S. Abell Co., 4 Cir., 97 F.2d 951, 954. That, however, is not the question before us, since the application of the act depends not upon the nature of the employer's activities, but upon the character of the employee's work. Kirschbaum v. Walling, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 90, 63 S.Ct. 125, 87 L.Ed. ___. It is manifest that employees engaged in the local distribution of papers after they have been printed are not engaged in the production of goods, either for commerce or for any other purpose; and the question in the case is whether they are engaged in commerce which is interstate in character. We think that the question answers itself, if one's mind is allowed to deal with a common sense question in a common sense way.

The question is not whether interstate commerce is affected by the activities of plaintiffs, but whether plaintiffs themselves are engaged in such commerce. McLeod v....