Wirtz v. Charleston Coca Cola Bottling Co.
Wirtz v. Charleston Coca Cola Bottling Co.
Opinion of the Court
This appeal raises the issue of whether the defendant’s route helpers who work on the delivery trucks qualify for exemption as “outside salesmen” under the Fair Labor Standards Act, 29 U.S.C. § 213(a) (1). We find no substantial evidence in this record to support the district court’s conclusion that they do. The burden of the testimony offered by both sides was to the effect that the job of the route helpers was to load, unload, and carry bottles, that the driver makes out all tickets and that his helper is permitted to collect only rarely. The very few exceptions testified to by the company’s witnesses served to confirm thé general practice. Their status as manual laborers is emphasized by the fact that the defendant failed to offer any evidence of their training as salesmen. None of them was ever advanced to the position of driver or even considered for such advancement. They did not attend the regular sales meetings with the drivers and their own infrequent meetings were concerned with teaching personal hygiene and good manners, subjects which could hardly be classified as involving sales techniques. No witness who was a helper referred to himself as a salesman or junior salesman and no driver-salesman indicated that he considered his helper as a member of the “sales-team”. The company’s failure to adduce evidence to show the amount of
Having reached the conclusion that the record does not support the court’s findings with respect to the status of the route helpers, we think the case is clearly within the rationale of the opinion in Wirtz v. Edisto Farms Dairy, 242 F.Supp. 1 (E.D.S.C. 1965).
The trial court was also in error in concluding that the crown taxes paid by the defendant bottling company were excludable from gross receipts in determining the enterprise’s “gross annual volume of sales.” The excludable taxes specified by the Act are separately stated excise taxes levied at the retail level. The defendant is a manufacturer and wholesaler who is not engaged in retail selling. That these taxes do not qualify for exclusion in determining whether the defendant’s gross sales volume places it above the one million dollar minimum is confirmed by the Senate Labor Committee’s report on the 1961 amendments:
“Excise taxes which are levied at the manufacturer’s, wholesaler’s, or other distributive level will not be excluded in calculating the dollar volume of sales [under Section 3 (s)].” Sen. Rep. No. 145, 87 Cong., 1st Sess., pg. 38 U.S.Code Congressional and Administrative News, p. 1658.
We reverse the decision of the court and remand in order that the court may consider the Secretary’s petition for prospective injunctive relief.
Reversed and remanded.
Reference
- Full Case Name
- W. Willard WIRTZ, Secretary of Labor, United States Department of Labor v. CHARLESTON COCA COLA BOTTLING COMPANY, Incorporated, Vendors Unlimited, Incorporated, Fountain Products of Charleston, Incorporated, and G. Simms McDowell, Jr.
- Cited By
- 4 cases
- Status
- Published