Wagner v. American Service Co.

• Decision Date: 17 November 1944
• Docket Number: Civil Action No. 106.
• Citation: 58 F. Supp. 32
• Parties: WAGNER v. AMERICAN SERVICE CO.
• Court: U.S. District Court — Southern District of Iowa

58 F. Supp. 32

WAGNER v. AMERICAN SERVICE CO.

Civil Action No. 106.

District Court, S. D. Iowa, Davenport Division.

November 17, 1944.

Wayne G. Cook, of Davenport, Iowa, for plaintiff.

Lane & Waterman, of Davenport, Iowa, for defendant.

DEWEY, District Judge.

LeRoy A. Wagner brings this suit against his former employer, American Service Company, a corporation, to recover overtime compensation, liquidated damages and attorney fees, as provided by Sections 6, 7 and 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219.

Trial was had before the court, without a jury, at Davenport, Iowa, on October 31 to November 2, 1944, and the case was duly argued and submitted.

Defendant denies plaintiff's contention that he was engaged in interstate commerce or in the production of goods for commerce and alleges that plaintiff's employment was that of a bona fide executive or administrator and that he was employed in a local retailing capacity and hence not within the coverage of the Act.

The defendant is engaged in the manufacture and sale, both at retail and wholesale, of artificial ice, and in the buying, selling and delivering of coal, in the city of Davenport, Iowa. It owns and operates some 60 to 90 ice plants, but we are only interested with the branch plant at Davenport, Iowa, under the general supervision of the headquarters of defendant corporation at Kansas City, Mo.

C. S. Wagner, father of the plaintiff, was during the time of the matters here in controversy the general manager of the Davenport branch. Plaintiff was chief engineer and superintendent of the foremen of the plant at Davenport on and prior to Oct. 24, 1938, at a salary of approximately $250 per month, and continued as such until on or about the first day of January, 1941, when his salary was increased to about $265 per month, which higher rate of compensation continued until he terminated his services with the defendant corporation on or about January 1st, 1942.

While the plaintiff exercised many of the duties of an executive, there is no doubt but that a large percentage of his work was manual labor in and about the defendant's plant at Davenport, Iowa, and such work took him out of the classification of an executive within the meaning of the Act. Joseph v. Ray, 10 Cir., 139 F.2d 409; George Lawley & Son Corp. v. South, 1 Cir., 140 F.2d 439, 151 A.L.R. 1081.

The claim of the defendant that the plaintiff's employment was in a retail or service establishment is also without merit. The main activity of defendant company at the plant where the plaintiff worked was the manufacture of artificial ice. Collins v. Kidd Dairy & Ice Co., 5 Cir., 132 F. 2d 79; Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52.

The statutory scope of the Act is to cover each employee who is engaged in commerce or in the production of goods for commerce. Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 335.

The evidence establishes without question that the defendant in the manufacture of artificial ice was engaged in the production of "goods" within the definition of "goods" contained within the Act. Sec. 203(i). And that the activities of the plaintiff at all times primarily had to do with the manufacture of artificial ice and his work was necessary for the production of such goods.

The plaintiff having unquestionably established that his employer, the defendant, was engaged in the production of goods and that he performed manual labor in connection therewith necessary for such production, leaves the question for determination whether the goods so produced were for interstate commerce.

The sale of the ice was primarily for the retail and wholesale trade in Davenport, Ia. Defendant operated regularly about 15 trucks, 12 of them for the sale and delivery of ice to customers within the City and the other three for the delivery to convenient points to be there picked up by other trucks for sale and distribution. The sales were made at retail to the homes and in wholesale quantities to distributors located throughout the City.

Plaintiff's compensation was based on an hourly rate of 60 cents an hour for a 65-hour week with an additional payment of $85 a month for supervision duties from Oct. 24, 1938, to January 1, 1941, and from that date until plaintiff left the employ of the defendant on January 1, 1942, his compensation was based on an hourly week of 70 hours at the rate of 60 cents an hour and $85 a month.

While it is not claimed by the defendant that the $85 per month received by the plaintiff was to pay for overtime, yet even if there was such an agreement it would not be available to the defendant in offsetting the claim for overtime. See recent case of Walling v. Helmerich & Payne, Inc., 65 S.Ct. 11.

On or about October 24, 1938, Mr. Earl Mulley, who was secretary-treasurer of the defendant corporation and a resident of Kansas City, Mo., talked with Mr. C. S. Wagner at the Davenport plant and told him not to deliver ice to any person, firm or corporation engaged in interstate commerce; that such deliveries did not exceed one per cent. or a fraction thereof of the business of the corporation.

However, both prior and subsequent to that date the defendant corporation through its branch plant at Davenport, Ia., did make sales and deliveries of artificial ice to persons, firms or corporations engaged in interstate commerce, and there seems to have been no difference in this regard from and after October 24, 1938, to that which had been in force prior to that time. The corporation during this period sold ice to railroads for air conditioning and icing drinking water and also iced some refrigerator trucks for the Zoller Brewing Company and the Pioneer Transportation Company, knowing that the icing of such trucks was to protect goods to be transported outside of the State of Iowa. There is also a claim that the defendant company furnished ice cubes to some regular customers from Rock Island, Ill., and furnished ice for excursion boats on the Mississippi River.

The plaintiff does not tell us the amount or volume of the ice so furnished and the defendant did not pursue the subject. This situation presents several interesting questions:

1st. Is the manufacturing and furnishing of ice to protect or preserve goods being shipped in interstate commerce a production of goods for commerce?

2nd. Is it necessary to show the amount, percentage or volume of the ice so manufactured and intended to be shipped in interstate commerce? And

3d. Must it be established that the amount or volume of the goods that went into interstate shipments was substantial, or is it sufficient if any of the manufactured ice intended for interstate commerce reached that commerce?

From the authorities it would appear that the question of whether an employee is within the terms of the Act, where his work is necessary for the production of goods for interstate commerce, is not whether the goods were transported by the employer, but whether the goods so manufactured were intended for interstate commerce. The fact that there was an intermediary between the sale and the shipment is immaterial. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165; Walling v. Peoples Packing Co., 10 Cir., 132 F.2d 236.

It is also apparent from the definitions that "commerce" includes "transportation" and "transmission," and hence the definition of "commerce" is broader than the legal definition of what constitutes commerce as heretofore defined by the Supreme Court...