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WIRTZ v. FERRIS

August 26, 1966

W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
George Ferris dba Carnegie Equipment Company of Johnstown, Defendant


Marsh, D.J.


The opinion of the court was delivered by: MARSH

MARSH, D.J.:

Plaintiff brought this action pursuant to 29 U.S.C.A. § 217 to enjoin the defendant from violating the provisions of §§ 215(a)(2), 215(a)(5), 206, 207 and 211(c), 29 U.S.C.A., of the Fair Labor Standards Act, as amended.

 It is alleged that the defendant employed two employees in the receipt, handling, unloading and stocking of goods which were received from out-of-state suppliers on a regular and recurring basis, and that said employees were engaged in activities which placed them in interstate commerce within the meaning of the Act; that the defendant from August 18, 1962 paid his employees wages at rates of pay less than the applicable minimum statutory rate; that he failed to compensate his employees for overtime at rates not less than one and one-half times the regular rate at which they were employed; that he failed to comply with the record-keeping provisions of the Act and the regulations of the Administrator of the Wage and Hour Division, United States Department of Labor.

 In addition to denials of the alleged violations, the defendant affirmatively averred that his business is a retail establishment and that his employees are exempt from the provisions of the Act. 29 U.S.C.A. § 213(a)(2). *fn1" In addition, he avers that the two employees involved, namely, Victor Sidola and Josephine McLoota, were employed by defendant as managers, and as such would not be within the application of the Act. 29 U.S.C.A. § 213(a)(1). At pretrial the court ruled that this latter defense was not available to defendant in view of the salaries admittedly paid to his employees (Transcript of pretrial conference, pp. 3-4); this defense is not being pressed.

 It was stipulated:

 (1) That the statute of limitations contained in the Portal-to-Portal Act of 1947, as noted in 29 U.S.C.A. § 217, would preclude recovery of all underpayments accruing more than two years prior to the filing of the complaint on June 2, 1965. (Pretrial Stipulation, § I.)

 (2) That the aforesaid employees of the defendant, since August 18, 1962, have engaged in interstate commerce within the meaning of the Act, and are therefore entitled to the benefits of coverage under the Act if defendant is not exempt from its provisions under § 213(a)(2). (T., p. 3.)

 (3) That during the period in question, not more than 10% of the defendant's annual dollar volume of sales were "sales for resale" within the meaning of § 213(a)(2). (T., p. 4.)

 (4) That over 50% of defendant's annual dollar volume of sales were made in Pennsylvania. (Pretrial Stipulation, § III.)

 The remaining issue for decision is whether 75% of defendant's annual dollar volume of sales are recognized as retail in the industry.

 We think that the defendant failed to prove that 75% of the annual dollar volume of his sales are recognized as retail in the industry; in addition, it is the opinion of the court that his establishment is not within the retail concept.

 The court makes the following:

 Findings of Fact

 1. The defendant is a resident of Altoona, Blair County, Pennsylvania. He owned and has conducted a sole proprietorship business, known as Carnegie Equipment Company of Johnstown, in the city of Johnstown, Cambria County, Pennsylvania, ...


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