Schultz v. WR Hartin & Son, Inc., 13381.

• Decision Date: 12 June 1970
• Docket Number: No. 13381.,13381.
• Citation: 428 F.2d 186
• Parties: George P. SCHULTZ, Secretary of Labor, United States Department of Labor (Substituted as plaintiff for W. Willard Wirtz, Resigned), Appellant, v. W. R. HARTIN & SON, INC., a corporation, and W. R. Hartin, Jr., Individually, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

428 F.2d 186 (1970)

George P. SCHULTZ, Secretary of Labor, United States Department of Labor (Substituted as plaintiff for W. Willard Wirtz, Resigned), Appellant, v. W. R. HARTIN & SON, INC., a corporation, and W. R. Hartin, Jr., Individually, Appellees.

No. 13381.

United States Court of Appeals, Fourth Circuit.

Argued February 6, 1970.

Decided June 12, 1970.

Carin Ann Clauss, Atty., Dept. of Labor (Laurence H. Silberman, Solicitor of Labor, Bessie Margolin, and Harold C. Nystrom, Assoc. Solicitors, and Beverly R. Worrell, Regional Solicitor, on brief), for appellant.

Zach McGhee, Columbia, S. C., for appellees.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

The Secretary of Labor appeals from a decision that W. R. Hartin & Son, Inc. (Hartin),¹ a mechanical contractor engaged in the installation and repair of central heating and air-conditioning systems, was exempt from the overtime requirements of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The district judge concluded that Hartin was not "engaged in the business of construction or reconstruction, or both," as used in § 3(s) (3) which prescribes coverage.² He also held that Hartin was eligible for exemption from the overtime provisions of the Act as a "retail or service establishment" under § 13(a) (2).³ We disagree on both points. We reverse and remand.

I

The district judge found the following relevant facts, the correctness of which is not contested:

Hartin is a South Carolina corporation having its principal office in Columbia. It engages in the sale, installation and servicing of Lennox air-conditioning and heating systems under an exclusive franchise for the Columbia area from The Lennox Furmer Company. Its operations are all conducted in South Carolina within a forty-mile radius of Columbia. The furnaces and air-conditioning equipment which it sells and installs are shipped to it from the Lennox warehouse in Decatur, Georgia. For the twelve-month period February 13, 1967, through February 12, 1968 — the crucial one for this litigation — Hartin had gross income of $359,676.62, of which $262,053.97 was derived from contract installations and $97,622.65 from service and repairs.

Hartin has no showroom or display area. It does not sell room air-conditioners, electric heaters or other small appliances; nor does it sell separately any of the items it uses in constructing central heating and cooling systems. Its only over-the-counter sales are occasional sales of filters. All other equipment is sold on an installed basis. Ordinarily it keeps few supplies on hand but orders them as needed for specific jobs.

Hartin has 25 employees, including sheet metal workers, installation mechanics, a shop foreman, a carpenter, repairmen, 2 office workers, and 3 "sales engineers." Typically, its sales are made through personal contact. Upon receipt of a customer inquiry, a sales engineer examines the premises and designs a heating and cooling system for the customer. He selects the basic heating or cooling unit and components, determines the kind of duct work which will be required and where to place the registers and cold air ducts. He then estimates the cost of materials and labor and, on the basis of these estimates, prepares a contract in which Hartin agrees to perform the work for a specified price. The contract includes an express guarantee that the equipment when installed will maintain specified temperatures. The contract does not itemize separately the charge for labor and materials and no adjustments are made on the basis of actual cost. The contracts range in amount from $400.00 to $7,600.00; the average is approximately $1,300.00.

Before a system is installed Hartin is required by an ordinance of the City of Columbia to secure a building permit, and compliance with the local building code is required. Under the Columbia licensing ordinance, Hartin is licensed as a mechanical contractor. Under a South Carolina law, it is licensed as a mechanical contractor under the classification of heating and air-conditioning.

Hartin's employees install the furnance or air-conditioner. These units are mounted on platforms or concrete slabs, and occasionally cork is employed to reduce vibration. If the building design hinders the installation of large units in the basement, Hartin's employees remove part of the wall to effect the placement. These employees also run the pipes and ducts from the furnace and air-conditioning units to outlets throughout the building. Holes are cut in floors and walls by Hartin's carpenter. The duct work is fabricated in Hartin's sheet metal shop according to the specifications presented by the sales engineer. If electrical and plumbing work is required, it is performed by subcontractors.

At trial the Secretary relied strongly on the classification of Hartin's type of business as "construction" by the Standard Industrial Classification Manual, Bureau of the Budget (1967) (SIC Manual).⁴ The Secretary also presented an expert witness, Richard Hastings, a consulting engineer in Columbia, who, on the basis of the testimony he had heard at trial about Hartin's activities gave the opinion that Hartin was engaged in "mechanical construction."

Hartin offered the testimony of another expert witness, Marcus Durlach, another consulting engineer, who testified that a company which installs central heating and air-conditioning systems is not in the construction business but is "more like a television dealer" or other "retailer." Mr. Durlach saw no difference between a dealer selling room air-conditioners and a company engaged in the installation of central heating and cooling systems, but he conceded that the latter, when it performs the same work for a general contractor, is part of the construction industry.

Two other witnesses, one of Hartin's sales engineers and one of its competitors, testified that they viewed their work as retail when performed for the ultimate consumer. Mr. Sharpe stated that he never "felt" that he was part of the construction industry and he did not consider any installation of heating and air-conditioning to be construction regardless of its size and regardless of whether it was performed in conjunction with new construction. In his opinion "construction" referred only to the building of a house or other structure "from the bottom up."

II

The legal question before us is whether Hartin is "engaged in the business of construction or reconstruction, or both" or whether it is a "retail or service establishment." If the former, Fair Labor Standard Act coverage existed; if the latter, the activities were exempt from the Act.

We start with the principles that the Act's "terms of coverage" must "be liberally * * * construed" Tobin v. Blue Channel Corp., 198 F.2d 245, 248 (4 Cir. 1952), approved in Mitchell v. Myrtle Grove Packing Co., 350 U.S. 891, 76 S.Ct. 148, 100 L.Ed. 784 (1955) (per curiam), and that "breadth of coverage" is "vital to the Act's mission" Powell v. United States Cartridge Co., 339 U.S. 497, 516, 70 S.Ct. 755, 94 L.Ed. 1017 (1950). It is equally well settled that exemptions from the Act are to be narrowly construed and limited to those "plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295-296, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959); A. H. Phillips Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095; Wirtz v. Ti Ti Peat Humus Company, 373 F.2d 209, 212 (4 Cir. 1969).

The presumption of coverage gives rise to the conclusion that "the business of construction or reconstruction, or both" includes, in ordinary, natural, plain and common usage, the extensive fabrication and installation of ducts and pipes and incidental alterations to buildings. Hartin's business is unlike the sale of window air-conditioners even when that sale includes the secondary service of installation by mounting window fittings. The latter is the business of a "retail establishment."

Our conclusion is reinforced by other considerations. The SIC Manual classifies Hartin as a special trade contractor — one engaged in the "business of construction."⁵

Not only is this classification to be deemed support for our conclusion. Cf. Roland Electric Co. v. Walling, 326 U.S. 657, 674-675, 66 S.Ct. 413, 90 L.Ed. 383 (1946); A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 496, 65 S.Ct. 807, 89 L.Ed. 1095 (1945), there is evidence that Congress relied on SIC Manual classifications when it last amended § 3(s) (3) — the section which extends coverage to persons "engaged in the business of construction or reconstruction, or both." Thus, Senate Report 1487, 89th Cong., 2d Session, 1966, p. 5, states that the section, as amended, would cover 2.9 million employees. According to the statistics published in U. S. Department of Labor, Employment and Wages, Fourth Quarter 1964, p. 17, there were 905,000 employees in "building construction," 610,000 employees in "construction other than building construction," and 1,381,000 employees in "construction — special trade contractors" — including 325,195 employees of "plumbing, heating and air conditioning" contractors. Also, we and other courts have not hesitated to treat the various types of special trade contractors as covered by § 3(s) (3) of the Act. E. g., Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658 (4 Cir. 1969) (painting contractors); Schultz v. Mack Farland & Sons Roofing Company, 413 F.2d 1296 (5 Cir. 1969) (a roofing company); Wirtz v. Melos Construction Corp., 408 F.2d 626 (2 Cir. 1969) (contractor engaged in building residential foundations); Wirtz v. Tessier Sheet Metal Works, Inc., 18 W. H. Cases 5 (D.S.D.1967) (a heating and air conditioning contractor).

III

In deciding that Hartin's business activity was "retail," the district judge placed heavy reliance on an opinion letter of the Wage-Hour...