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SCHULTZ v. KIP'S BIG BOY, INC.

No. 28694.

431 F.2d 530 (1970)

George P. SCHULTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. KIP'S BIG BOY, INC., Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

As Corrected August 5, 1970.

Attorney(s) appearing for the Case

L. H. Silberman, Sol., U. S. Dept. of Labor, Washington, D. C., M. J. Parmenter, Regional Sol., U. S. Dept. of Labor, Richard L. Collier, Trial Atty., Dallas, Tex., Bessie Margolin, Carin Ann Clauss, Attys., U. S. Dept. of Labor, Washington, D. C., Leon M. Kestenbaum, Atty., United States Dept. of Labor, Washington, D. C., for plaintiff-appellant.

Philip Wilson, Dallas, Tex., for defendant-appellee.

Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Northern District of Texas, holding that the commissary of Appellee Kip's Big Boy, Inc. was not covered by the Fair Labor Standards Act because of the lack of the Secretary's proof that Kip met the required test of establishing an "inflow" in interstate commerce. The trial court also found that the Commissary was inseparable from retail outlets and was thus entitled...

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