GOODRICH, Circuit Judge.
The Administrator of the Wage and Hour Division, United States Department of Labor, brought this action in the District Court to restrain the defendant, American Stores Company, from violating §§ 15(a) (1), 15(a) (2) and 15(a) (5)
I. Is the American Stores Company exempt under § 13(a) (2) of the Act?
Section 13 of the Act is the exemption section of which only the first two
The findings of fact made by the trial court give a comprehensive description of the business, organization and operation of the American Stores Company. Those necessary to the understanding of the question involved may be briefly stated.
The company is a Delaware corporation with its central office in Philadelphia. It operates eleven warehouses in five states and the District of Columbia, seven bakeries
The financial volume of the transactions in which the defendant is engaged is large. In 1939 the sales of defendant's retail stores, directly owned, totaled $77,014,652.23. Its assets were $32,662,976.91. The value of the merchandise received by the defendant's warehouses in 1939 exceeded $75,000,000. A similar amount was shipped. Its bakeries manufactured in excess of $3,250,000 worth of breads, cakes and pies. Almost $2,000,000 worth of coffee was distributed in 1939 from its coffee roasting plant. Defendant's warehouse in Philadelphia contains a manufacturing, processing and packing plant at which salad dressings, jams, delicatessen items, gelatine, tapioca, teas and spices and various other grocery items, bacon, beef and other meats are prepared and packed, and soft drinks are bottled. The value of these products for 1939 totaled more than $8,000,000. Its two canneries produced goods in that year in excess of $675,000.
The defendant's warehouses, with the exception of one which is a coffee roasting plant, receive and stock the products manufactured and processed by itself, numerous private label items produced and packed expressly for defendant, and hundreds of other items of other manufacturers. Each warehouse serves the retail stores in its zone, the operational territory of the defendant being divided into several zones. Each warehouse carries various food products which it distributes upon order to defendant's retail stores and those owned and operated by its subsidiaries.
The retail stores are operated under a common general management. They vary, however, as to size, type of goods sold, service rendered and prices charged. Some stores sell dry groceries almost exclusively; others have groceries and a produce department; still others also have meat departments. Some operate on a self service plan. Some carry produce especially suited for the neighborhood in which they are located. The manager of each store bears the principal responsibility in ordering for his store. He also exercises discretion in setting certain prices. Hiring and discharging of store employees, and transfers of personnel rest solely with the defendant in all stores. The retail stores served by different warehouses are charged different prices for the same goods at the same time.
In the operation of its warehouses, offices, canneries, bakeries, coffee roasting plant, food manufacturing and processing plants, printing and multigraphing shop, auto maintenance and fixture plant, mechanical shop, and other non-retail selling units, the defendant employs approximately 3200 workers.
It is this great enterprise for which the defendant claims exemption from the Fair Labor Standards Act as a retail establishment. It is not disputed that the defendant is in the business of retailing food products to consumers. Nor do the facts show anything to indicate that the profit making transaction for the company is any other than the sale of merchandise on the retail store shelf to the individual food buyer. We may take it that defendant's canning of vegetables, its roasting of coffee, baking of bread and all the other acts done in preparing and assembling food products for sale are part of a plan whose terminus is the retail sale over the counter to the consumer. From the standpoint of
The Administrator, provided for in the statute, has expressed a view contrary to the defendant's position in the Interpretative Bulletin, issued by the Wage and Hour Division of the United States Department of Labor, defining the scope and applicability of § 13(a) (2). Interpretative Bulletin No. 6, Retail and Service Establishments (June, 1941). Each of the defendant's retail stores under this interpretation, comes within the exemption as a single physical place of business, but not the "warehouses, central executive offices, manufacturing or processing plants, or other nonretail selling units which distribute to or serve stores".
Section 13(a) (1) of the statute gives the Administrator authority to define and delimit terms used therein by regulation. Section 13(a) (2) does not give such an authorization to him. Nevertheless, the interpretation is relevant for judicial consideration and persuasive, even though not authoritative, as the "`contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new'". United States v. American Trucking Associations, Inc., 1940, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345.
The meaning to be attributed to the term "retail establishment" need not, however, rest upon administrative interpretation alone. Consideration of the legislative history shows clearly, we think, what was in the mind of the Congress when this term was written into the Act.
Section 13(a) (2) was not contained in the original drafts of the Act.
It is to be noted, as defendant points out, that the Cellar amendment applied to any "retail industry". Whether defendant's business structure falls within that category, we need not determine, for as the amendment finally emerged it exempted any "retail establishment". This we think limited the exemption to the type of retailing businesses, the intrastate retail store, originally contemplated in the House discussion.
It is apparent from the legislative history of § 13(a) (2) that Congress did not intend to exempt as a "retail establishment" a business of the kind defendant conducts. A multi-state business structure engaged in manufacturing and processing food products, warehousing and distribution of food items to over 2000 retail stores is not at all comparable to the intrastate "local" or "corner grocery man", "druggist", "meat dealer", "filling-station man" or even "department store" about whom the legislators were concerned. They are totally dissimilar whether the standards of comparison be economic, functional or physical. The correctness of this conclusion is, we think, settled by the latest word of the Supreme Court upon the point. In Walling v. Jacksonville Paper Co., 1943, 63 S.Ct. 332, 337, 87 L.Ed. ___, Mr. Justice Douglas said for the Court: "It is quite clear that the exemption in § 13(a) (2) was added to eliminate those retailers located near the state lines and making some interstate sales. * * * And the exemption for retailers contained in § 13(a) (1) was to allay the fears of those who felt that a retailer purchasing goods from without the state might otherwise be included." This statement, we think, disposes of the defendant's point that unless § 13(a) (2) is construed according to its contention it is meaningless because the retail store employees are already covered by § 13(a) (1).
The defendant points to dictionary definitions of the word "establishment" showing the term to include "business organization", "business concern". Dictionary authority, however, may also be found for a definition which coincides with the Administrator's interpretation.
Our conclusion is that defendant's business is not a retail establishment within the meaning of § 13(a) (2) and that the learned District Judge was correct in so concluding.
II. Are all the warehouse employees within the Act?
In the decision of this question, we know that the Act is not coextensive with the limit of the power of Congress over commerce; further, that there is no dependable touchstone to determine whether employees are engaged in commerce; the problem is one of drawing lines. A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. The lines are to be drawn after "analysis of the various types of transactions and the particular course of business. * * * " Walling v. Jacksonville Paper Company, 1943, 63 S.Ct. 332, 337, 87 L.Ed. ___. See also Higgins v. Carr Bros. Co., 1943, 63 S.Ct. 337, 87 L.Ed. ___, decided the same day as the Jacksonville Paper Company case. To the factual situation then we turn.
The parties have stipulated that the operations of the warehouse at Orange, New Jersey, are typical of all the four warehouses in question. No manufacturing or processing is done in this warehouse. Goods from many states
There is a fairly even flow through the warehouses and it is the defendant's policy to avoid over-stocking. Buyers order in anticipation of the regular and continuous requirements of the stores. The buyer is guided by past experience and makes considerable allowance for seasonable factors and merchandising programs. The method of operation is designed to keep the goods moving. Different items have different turn-over rates. Many items turn over within a week. The average turn-over at Orange is in excess of 16 times annually; at Newark, where perishable goods are distributed, the rate of turn-over is over 112 times annually. Grocery deliveries to stores are made one to three times a week; fruits and vegetables are delivered three to six times a week. There are two shifts of employees at the warehouse to insure continuous movement of goods through the warehouse.
The Orange warehouse is closely tied to the Philadelphia office. Records of inventories, receipts and deliveries are regularly forwarded to the main office. In addition, there is a daily contact through letters, telegrams and telephone talks and branch buyers also clear purchases with the main buying department. Payroll funds are replenished weekly and other necessary operating expenses are paid from Philadelphia.
It was found as a fact by the trial judge that no one of the warehouses is the ultimate destination of any of the vast quantities of foodstuffs and other products which pass through it.
We think that these facts, which are undisputed, provide evidence going far beyond that of the "wholly general character" which was before the Supreme Court in the Jacksonville Paper Company case, supra. True, the deposit of the goods in the warehouse shows no evidence of being a ritual to give a plausible appearance of breaking interstate transit. We have no reason to think that the warehousing was for anything but the convenience of the defendant in doing business in what it regards as an efficient and economical way. Whether such a break would subject
Furthermore, it should be borne in mind in this case that we are not dealing here with the problem of an independent wholesaler. The entire operation from the purchase, manufacturing or processing of the goods to the ultimate sale to the retail purchaser is that of the American Stores Company. The warehouses supply goods to the defendant's retail stores and no others except where they deliver to one of the wholly owned subsidiaries of the parent company. The warehouse manager does not buy or resell to retailers at a profit; the warehouses are maintained by the company for convenience and distribution of the goods. We have then nothing comparable to "goods acquired and held by a local merchant for local disposition" as mentioned in the Jacksonville Paper Company case, but rather a situation where goods are shipped from one state and briefly warehoused in another for the convenience of the owner in making an efficient distribution of those goods to its local retail outlets.
We think the conclusion from these facts is clear that there is in this case a practical continuity of movement of the goods until they reach the defendant's retail stores. The maintenance of the warehouse, as we read the findings of fact, is not to break that continuity but to make it even, economical and uninterrupted. The conclusion, therefore, is that all of the defendant's warehouse employees are engaged in commerce within the meaning of the Act. This conclusion may go somewhat beyond that of our colleagues in the Seventh Circuit in Walling v. Goldblatt Bros., Inc., 7 Cir., 1942, 128 F.2d 778, certiorari denied 1943, 63 S.Ct. 528, 87 L.Ed. ___. But the court in that case did not have the advantage of the guidance given by the Supreme Court decisions of Walling v. Jacksonville Paper Company and Higgins v. Carr Brothers Company, referred to above.
To this extent the decision of the learned court below is modified. We think the modification can be effected by the deletion from the judgment of the District Court of the last three words of Division 5 and the last full paragraph. With this modification the judgment is affirmed.
"33. * * * The word `establishment' as used in section 13(a) (2) ordinarily means a physical place of business. In the case of the independent grocery store or butcher shop, the entire business is conducted in a single establishment."
"34. The term `establishment' is not synonymous with the words `business' or `enterprise' as applied to multi-unit companies. * * *"
"37. The question has been raised as to the scope of the term `establishment' in the case of chain-store systems, branch stores, groups of independent retailers organized to carry on business in a manner similar to chain-store systems, and retail or service outlets of large manufacturing or distributing concerns. In the ordinary case, each physically separated unit or branch store will be considered a separate establishment within the meaning of the exemption. The exemption, however, does not apply to warehouses, central executive offices, manufacturing or processing plants, or other nonretail selling units which distribute to or serve stores. These are physically separated establishments which do not have the characteristics of retail or service establishments."