Wirtz v. Pickett Food Service, Inc., Civ. No. 7246.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtBRATTON
Citation304 F. Supp. 784
Decision Date08 July 1968
Docket NumberCiv. No. 7246.
PartiesW. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. PICKETT FOOD SERVICE, INC., Defendant.

304 F. Supp. 784

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
PICKETT FOOD SERVICE, INC., Defendant.

Civ. No. 7246.

United States District Court D. New Mexico.

July 8, 1968.


304 F. Supp. 785

Charles Donahue, Solicitor, Harry Campbell, Jr., Acting Regional Atty., and Truett E. Bean, Trial Atty., U. S. Dept. of Labor, Dallas, Tex., and John Quinn, U. S. Atty., Albuquerque, N. M., for plaintiff.

Wayne C. Wolf, Civerolo, Cushing & Hansen, Albuquerque, N. M., and Roy M. Fish, Fish & Montgomery, Springhill, La., for defendant.

MEMORANDUM OPINION

BRATTON, District Judge.

This action was brought by the Secretary of Labor to enjoin the defendant from withholding minimum and overtime wages allegedly due defendant's employees under the provisions of the Fair Labor Standards Act, and to enforce the Act's record-keeping provisions.

The defendant, Pickett Food Service, Inc., is a Texas corporation and a wholly owned subsidiary of Pickett Food Service, Inc. of Louisiana. It is agreed that these two corporations, together with Pickett Food Service of El Paso, form an enterprise within the meaning of § 203(r) and (s) of the Act. 29 U.S.C.A. § 203(r), (s) (1964), as amended, 29 U. S.C.A. § 203(r), (s) (1967). The issues to be determined are whether the activities of defendant's employees are a closely related process or an occupation directly essential to the production of goods for commerce, or whether the defendant's operation is within the purview of the exemption accorded retail and service establishments by the Act, Id. § 213(a) (2).

The defendant entered into a contract to provide cafeteria and food vending machine services for those persons employed at the National Aeronautical and Space Administration's Apollo test facility at White Sands Missile Range, some twenty miles from Las Cruces, New Mexico. Under the terms of the contract, defendant was to furnish morning and noon meals in its cafeteria at prices set by the contract. The premises and equipment were furnished by the Government. Defendant was to gain the profit or stand the loss from the operation.

Its employees' activities primarily revolved around the preparation and service of food to employees and visitors at the missile range.

The missile range itself was some distance from any town or any other eating place. Further, only those persons with passes were admitted to the facility, restricting its daily inhabitants to employees of the various N.A.S.A. contractors and authorized guests.

Lunch periods for those working at the facility were inadequate to allow them to leave the facility to lunch in town, particularly in view of the necessary, but time consuming, practice of checking passes before admitting persons to the facility.

The volume of business done by the defendant at the missile site, which never approached the $250,000 mark, was insufficient to make the operation profitable, and on June 30, 1967, it ceased its White Sands food dispensing services.

It is plaintiff's contention that the activities of defendant's employees were directly essential to the production of goods for interstate commerce, so that its employees were entitled to the benefits of the Fair Labor Standards Act. 29 U.S.C.A. §§ 206-207 (1964), as amended 29 U.S.C.A. §§ 206-207 (1967).

304 F. Supp. 786
Plaintiff seeks wages it claims to be due for the period from February 1, 1967, to June 30, 1967

Defendant's position is that its White Sands operation was a retail and service establishment within the meaning of §§ 213(a) (2) and (20) of the Act and thus entitled to the retail exemption contained therein. Plaintiff's reply is that defendant's operation lacked the "retail concept" in that it was not open to the general public, so that it at no time was entitled to the retail exemption.

The history of the retail exemption discloses that the definition of a retail or service establishment has remained constant over the years, but that the conditions under which it is available have varied and become restricted.

When first enacted, the Act's retail exemption was not defined by Congress. Congress did, however, in defining the Act's general scope, include activities considered "necessary" to the production of goods for commerce.

The term "necessary" led some courts to find activities covered which Congress had not intended to cover, and in 1949 the word "necessary" was eliminated from the Act. In its place was inserted the "directly essential" test asserted by plaintiff to be applicable to the present case.

In addition, Congress undertook to clarify the retail and service establishment exemption, since some of the activities held to be "necessary" and covered by the Act were in the category it thought to be entitled to the retail exemption. This clarification has persisted without change to the present, so that a retail or service establishment is defined by the statute as one which makes sales or provides services recognized as retail in the particular industry and seventy-five percent of whose annual dollar volume of sales or services is not for resale. If more than fifty percent of such a retail or service establishment's annual dollar volume is made within the state in which it was located, it qualifies for the exemption.

The Act was again amended in 1961, and the scope of the retail...

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6 practice notes
  • Futrell v. Columbia Club, Inc., No. IP 69-C-176
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 2 Agosto 1971
    ...restriction. Shultz v. Crotty Brothers Texas, Inc., E.D.Tex., 1970, 310 F.Supp. 761; Wirtz v. Pickett Food Service, D.N.M., 1968, 304 F.Supp. 784. Most persuasive to the Court is the holding in Shultz v. Deane Hill Country Club, Inc., 6 Cir., 1970, 433 F.2d 1311, aff'g E.D.Tenn., 1969, 310 ......
  • Stahl v. Delicor of Puget Sound, Inc., No. 47839-7-I.
    • United States
    • Court of Appeals of Washington
    • 13 Noviembre 2001
    ...to the customer. Such sales may not otherwise be considered than as retail sales."). See also Wirtz v. Pickett Food Service, Inc., 304 F.Supp. 784, 788 (D.N.M. 1968) (cafeteria and food vending machine services are retail in 12. Stahl also argues that the commission rate is not "bona fide" ......
  • Shultz v. Crotty Brothers Texas, Inc., Civ. A. No. 5822.
    • United States
    • U.S. District Court — Eastern District of Texas
    • 16 Febrero 1970
    ...district courts have questioned the correctness of the Anderson decision and declined to follow it. Wirtz v. Pickett Food Service, Inc., 304 F.Supp. 784 (D.N.M.1968); Wirtz v. Crotty Brothers Dallas, Inc., C.A. No. A-68-CA-6 (W.D.Tex. Jul. 30, 1969). Certainly the reasoning of the Anderson ......
  • Brennan v. Clark, Civ. A. No. 74-0256-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 12 Diciembre 1975
    ...described in Section 21ct03(3) of the field operations handbook. See, Hodgson v. Prophet Co., supra; Wirtz v. Pickett Food Service Inc., 304 F.Supp. 784 (D.N.M.1968). Adding such trucker-customers to the percentage of nontrucker-customers, the total is well over 50%, thus satisfying the fun......
  • Request a trial to view additional results
6 cases
  • Futrell v. Columbia Club, Inc., No. IP 69-C-176
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 2 Agosto 1971
    ...restriction. Shultz v. Crotty Brothers Texas, Inc., E.D.Tex., 1970, 310 F.Supp. 761; Wirtz v. Pickett Food Service, D.N.M., 1968, 304 F.Supp. 784. Most persuasive to the Court is the holding in Shultz v. Deane Hill Country Club, Inc., 6 Cir., 1970, 433 F.2d 1311, aff'g E.D.Tenn., 1969, 310 ......
  • Stahl v. Delicor of Puget Sound, Inc., No. 47839-7-I.
    • United States
    • Court of Appeals of Washington
    • 13 Noviembre 2001
    ...to the customer. Such sales may not otherwise be considered than as retail sales."). See also Wirtz v. Pickett Food Service, Inc., 304 F.Supp. 784, 788 (D.N.M. 1968) (cafeteria and food vending machine services are retail in 12. Stahl also argues that the commission rate is not "bona fide" ......
  • Shultz v. Crotty Brothers Texas, Inc., Civ. A. No. 5822.
    • United States
    • U.S. District Court — Eastern District of Texas
    • 16 Febrero 1970
    ...district courts have questioned the correctness of the Anderson decision and declined to follow it. Wirtz v. Pickett Food Service, Inc., 304 F.Supp. 784 (D.N.M.1968); Wirtz v. Crotty Brothers Dallas, Inc., C.A. No. A-68-CA-6 (W.D.Tex. Jul. 30, 1969). Certainly the reasoning of the Anderson ......
  • Brennan v. Clark, Civ. A. No. 74-0256-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 12 Diciembre 1975
    ...described in Section 21ct03(3) of the field operations handbook. See, Hodgson v. Prophet Co., supra; Wirtz v. Pickett Food Service Inc., 304 F.Supp. 784 (D.N.M.1968). Adding such trucker-customers to the percentage of nontrucker-customers, the total is well over 50%, thus satisfying the fun......
  • Request a trial to view additional results

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