Wirtz v. Charleston Coca Cola Bottling Company, 10107.
| Decision Date | 25 January 1966 |
| Docket Number | No. 10107.,10107. |
| Citation | 356 F.2d 428 |
| Parties | W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. CHARLESTON COCA COLA BOTTLING COMPANY, Incorporated, Vendors Unlimited, Incorporated, Fountain Products of Charleston, Incorporated, and G. Simms McDowell, Jr., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William Fauver, Atty., U. S. Dept. of Labor (Charles Donahue, Sol. of Labor, Bessie Margolin, Assoc. Sol., Robert E. Nagle, Atty., and Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, on brief), for appellant.
R. M. Hollings and T. E. Pedersen, Charleston, S. C., for appellees.
Before HAYNSWORTH, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
This appeal raises the issue of whether the defendant's route helpers who work on the delivery trucks qualify for exemption as "outside salesmen" under the Fair Labor Standards Act, 29 U.S.C. § 213(a) (1). We find no substantial evidence in this record to support the district court's conclusion that they do. The burden of the testimony offered by both sides was to the effect that the job of the route helpers was to load, unload, and carry bottles, that the driver makes out all tickets and that his helper is permitted to collect only rarely. The very few exceptions testified to by the company's witnesses served to confirm the general practice. Their status as manual laborers is emphasized by the fact that the defendant failed to offer any evidence of their training as salesmen. None of them was ever advanced to the position of driver or even considered for such advancement. They did not attend the regular sales meetings with the drivers and their own infrequent meetings were concerned with teaching personal hygiene and good manners, subjects which could hardly be classified as involving sales techniques. No witness who was a helper referred to himself as a salesman or junior salesman and no driver-salesman indicated that he considered his helper as a member of the "sales-team". The company's failure to adduce evidence to show the amount of commission it alleges that the helpers received on sales made by the "team" (in addition to their base pay of $30.00 per week) leads us to the conclusion that the commission was relatively insignificant. The defendant clearly failed to meet its burden to show that these men came within the exemption specified by the Act. Cf. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct....
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