Walling

The Administrator sued to restrain violations of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. After hearing proof the court dismissed the suit, and the Administrator appeals. It is conceded that the Act, if applicable, was not complied with.

Appellee owns and operates a chain of nineteen retail shoe stores, fourteen of which are in Washington, three in Oregon, and two in Idaho. He maintains at Seattle a central office and warehouse or floor space 1 where the great bulk of the merchandise dealt in is received from out-state suppliers and from which it is distributed to the several stores, a minor part being shipped directly to the stores by the suppliers. After arrival in Seattle the goods are transported by a local transfer company to the warehouse where they are weighed, checked, unpacked, sorted, and repacked for distribution, about 30% being distributed to the stores in Oregon and Idaho, the balance to those in Washington. Except for a small reserve stock, the goods shipped to the Seattle warehouse are kept there only long enough to be prepared for transmission to the stores. The employees involved are those working in the central office and warehouse, namely,…

(dissenting).

Both on reason and authority, I believe that the judgment should be reversed.

There is no “dependable touchstone” by which the applicability of the statute in question can be determined. Kirschbaum v. Walling, 316 U.S. 517, 520 , 62 S.Ct. 1116 , 86 L.Ed. 1638 . “The question of the Act’s coverage depends on the special facts pertaining to the particular business.” Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 , 63 S.Ct. 332, 337 , 87 L.Ed. 460 .

This being so, we must be careful to keep before us all the significant facts pertaining to the business of Block’s Shoe Stores. While the majority opinion’s statement of facts may be correct as far as it goes, there have been omitted a number of relevant bits that help make up the complex mosaic of the appellee’s farflung chain system.

In the year ending July, 1941, the appellee’s nineteen stores did more than a million dollars worth of business. The merchandise was shipped in chiefly from outside of the state manufacturers and from 88 to 90 per cent of the total goods purchased were shipped by rail to the Seattle warehouse and the rest to the stores directly. Shoes were shipped to the appellee’s stores from the…