Wirtz v. Jernigan, 25495.

• Citation: 405 F.2d 155
• Decision Date: 13 December 1968
• Docket Number: No. 25495.,25495.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. F. C. JERNIGAN, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

405 F.2d 155 (1968)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. F. C. JERNIGAN, Appellee.

No. 25495.

United States Court of Appeals Fifth Circuit.

December 13, 1968.

Bessie Margolin, Associate Solicitor, Robert E. Nagle, Carin Ann Claus, Attys., Dept. of Labor, Washington, D. C., Charles Donahue, Sol. of Labor, Edward D. Friedman, Deputy Sol. of Labor, Beverley R. Worrell, Regional Atty., for appellant.

C. A. L. Johnstone, Jr., Mobile, Ala., for appellee; Johnstone, Adams, May, Howard & Hill, Mobile, Ala., Brooks, Garrett & Thompson, Brewton, Ala., of counsel.

Before BROWN, Chief Judge, RIVES and McENTEE,^* Circuit Judges.

McENTEE, Circuit Judge.

The Secretary of Labor brought this action to enjoin violations of the Fair Labor Standards Act pertaining to minimum wage and related matters. 29 U.S.C. § 201 et seq. Defendant Jernigan conceded noncompliance but claimed exemption as a retail or service establishment¹ under § 13(a) (2) of the Act. After trial on a stipulation of facts, the district court upheld defendant's contention.

Since 1949 Jernigan has operated a restaurant on certain premises in Brewton, Alabama.² In addition, he has acted as an agent for the Greyhound Corporation since 1946. From 1955 to 1965 Jernigan also acted as an agent for the Western Union Telegraph Company during its off duty hours. We need not, however, concern ourselves with the details of this last relationship. See n. 6, infra. Pursuant to contract with Greyhound,³ Jernigan sells bus tickets; gives out information as to rates and schedules; contracts for the delivery of shipments; provides a waiting room as well as space for loading and unloading, and handles baggage for Greyhound.⁴

Defendant's insurance policies with respect to the operations on the premises covered all phases of his operations together. He held but one local license to operate all these business activities. He maintained only one set of books and in his federal income tax return made no breakdown of receipts or expenses. Moreover, apart from the proceeds from the restaurant these returns included only defendant's commissions. They did not include funds received on behalf of Greyhound or Western Union. During the period from 1962 to the present Jernigan has had an average of seventeen employees. He himself spent most of his time handling Greyhound matters and did very little work in connection with the restaurant operation. Except as indicated in the margin⁵ all the employees worked regularly in the restaurant operation exclusively.

The sole issue presented here is whether the total proceeds resulting from the Greyhound agency rather than just the commissions should be taken into account in determining the "dollar volume of sales of goods or services" of defendant's enterprises within section 13(a) (2) of the Act. If the total proceeds are considered Jernigan admittedly comes within the Act but if only the commissions are considered, the exemption applies.⁶ In computing the annual sales the district court counted only the commissions from the non-retail bus operation rather than the gross receipts.

We conclude that the gross receipts rather than the commissions must be included. In the first place the term sale is defined quite capaciously in the Act. "`Sale' or `sell' includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition." 29 U.S.C. § 203(k). While this broad definition is not by itself dispositive of the case, it must at least serve as a point of departure. Cf. Wirtz v. Savannah Bank & Trust Co., 5 Cir., 1966, 362 F.2d 857, 862-863 where this definition of "Sale" is construed to include such things as the rent of office space; accord, Wirtz v. First National Bank & Trust Co., 5 Cir., 1966, 365 F.2d 641 (rental of office space is a "disposition" within § 203(k).)⁷ Cf. 29 C.F.R. ¶ 779.241: "As long as the employee in any way participates in the sale of the goods he will be considered to be `selling' the goods. * * *"

Furthermore, we are mindful that this Act is to be interpreted liberally with exceptions narrowly construed against those seeking to assert them. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 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). This is not a mere technical point. Rather, the exceptions to the policy concerning minimum wages have been narrowly drawn to fit particular needs and are not to be enlarged by judicial construction.

Quite apart from the wording and history of the statute, it is defendant's contention that his interpretation is compelled by the economic realities of the situation and any other interpretation would present an unrealistic picture of his business. In support of this proposition he cites Schmidt v. Randall, 160 F. Supp. 228 (D.Minn.1958) and Mitchell v. Carratt, 160 F.Supp, 261 (S.D.Fla.1956). It is true that examination of the gross receipts suggests that the Greyhound agency is a very large factor in defendant's economic life. See n. 4, supra. But even an examination of the net proceeds still leads to the very same conclusion.⁸ Even after the Greyhound commissions are scaled down to reflect their proportionate share of overhead expenses, they play a much larger role in defendant's economic life than would be supposed by one who compared only the restaurant gross with what Jernigan considers his "gross," i. e., his commissions.⁹

Further, it must be emphasized that defendant provides a whole range of facilities and service in connection with his transportation function. Indeed, his functions may well be within the specific terms of the Motor Carrier Act, 49 U.S. C.A. § 303(a) (10), (14), (19). In view of this the instant case is easily distinguishable from the situation where, for example, a proprietor permits a vending machine to be placed on his premises in return for a share of the proceeds. Here the defendant has much more than a mere custodial function.

Finally, as above stated, Jernigan relies on Schmidt v. Randall and Mitchell v. Carratt, supra. Insofar as these cases uphold his contention we decline to follow them. Carratt, an unreported case until after it was cited in Schmidt, merely states the conclusions arrived at without supporting discussion beyond the ipse dixit that "the excess of said ticket revenues over defendant's commission thereon is not revenue to defendant but to a bus company," Carratt, supra, 160 F. Supp. at 261.

Schmidt is grounded on the following factors: (1) the authority of Carratt, (2) that the phrase "The gross receipts derived by establishment from such activities,"¹⁰ suggests that less than the total amount received for the tickets is to be considered in determining gross receipts. It does not appear to us, however, that this language or the language currently in force¹¹ supports the court's reasoning in Schmidt. Reference to the gross receipts of the establishment does not provide an answer in this case; rather, it is the very question in issue. (3) The district court reasons that defendant is not merely including his profit since he has to pay certain expenses out of the commissions. This is strictly true but nothing follows from it. It is equally true that the restaurant proceeds over and above the price of the food must be further reduced by overhead such as rent and salaries. But if the fact that the commissions do not represent pure profit leads to the conclusion that only the commissions should be considered in determining qualification for the exemption, then the cost of food in the restaurant should also be excluded on the same basis. Yet no one suggests this conclusion for the fundamental reason that...