Walling v. Brooklyn Braid Co.
| Decision Date | 07 November 1945 |
| Docket Number | No. 74.,74. |
| Citation | 152 F.2d 938 |
| Parties | WALLING v. BROOKLYN BRAID CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
William S. Tyson, Solicitor, and Bessie Margolin, Asst. Solicitor, both of Washington, D. C., Irving Rozen, Regional Attorney, of New York City, Faye Blackburn, of Washington, D. C., and James V. Altieri and Samuel Gorin, both of New York City, Attys., United States Department of Labor, for plaintiff-appellee.
Schlesinger & Krinsky, of New York City (Samuel Bushwick, of New York City, of counsel), for appellant.
Before L. HAND, CHASE and FRANK, Circuit Judges.
The Administrator of the Wage and Hour Division of the Department of Labor sued the appellant in the District Court for the Southern District of New York to obtain a permanent injunction restraining it from violating the Wage Order for the Embroideries Industry, Part 633. The court enjoined the appellant pendente lite from permitting any of its employees to do what is called home work in the production of bows and tassels for interstate commerce without first obtaining special homework certificates for such employees; from paying any of its employees engaged in the production of goods for interstate commerce wages at rates less than forty cents an hour; and from failing to keep and preserve adequate and accurate records as prescribed by the Administrator, Title 29, Chap. V, Code of Federal Regulations; Part 516. This appeal is from that order.
The appellant, who is a jobber of straw braids and bands for men's hats and a manufacturer of small bows and tassels which are sewn across the sweat band of men's hats, contends that it is not within the above mentioned wage order; and, indeed, it is not unless its manufacture of the bows and tassels brings it within the definition of the Embroideries Industry in § 633.4 of the order. It does not, however, contest the validity of the order itself or raise any question as to its having been promulgated without due compliance with the required statutory procedure including notice, provided the definition, properly construed, is broad enough to cover the manufacture of its bows and tassels. It also argues that it is within the wage order for the Miscellaneous Textile, Leather, Fur, Straw and Related Products Industries. However, no injunction for violation of that order was granted and we need not directly decide more on that phase of this appeal than whether the appellant is or is not within definition of the order for the Embroideries Industry. That reads: "The production of all kinds of hand and machine-made embroideries and ornamental stitchings, including, but not by way of limitation, tucking, shirring, smocking, hemstitching, hand rolling, fagoting, Bonnaz embroidery, appliqueing, crochet beading, hand drawing, machine drawing, rhinestone trimming, sequin trimming, spangle trimming, eyelets, passementerie, pleating, the application of rhinestones and nailheads, stamping and perforating of designs, Schiffli embroidery and laces, burntout laces and velvets, Swiss hand-machine embroidery, thread splitting, embroidery thread cutting, scallop cutting, lace cutting, lace making-up, making-up of embroidered yard goods, straight cutting of embroidery and cutting out of embroidery, embroidery trimmings, bindings (not made in textile establishments), pipings and emblems; provided, however, that (1) the foregoing when produced or performed by a manufacturer of a garment, fabric or other article, and (2) the manufacture of covered buttons and buckles, shall not be included."
Bows and tassels are not specifically mentioned in the definition but the omission of those particular words is not decisive. If a fair and reasonable interpretation of the language used covers the kind of bows and tassels which the appellant manufactures that is enough. Pearson v. Walling, 8 Cir., 138 F.2d 655. The definition includes the production of passementerie. That means trimming. Webster's International Dictionary. And on the same authority, we find that trimming may be defined as "That which serves to trim, make complete, ornament, or the like; * * * usually in pl.; as, trimmings for a hat; * * *."
The definition expressly covers rhinestone, sequin and spangle trimming, and we believe that by adding passementerie to the particular kinds of trimming mentioned there was included trimming of a class at least extensive enough to cover these little bows and tassels...
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