Tenn essa,e Court Rules Retail Lumber Dealer Not Subiect to Fair Labor Standards Act

Washington, D. C., February 18.-In the first case in the courts involving the status of a retail lumber dealer under the Fair Labor Standards Act, a Tennessee court, in the case of Whitson vs. Wexler, has ruled that a local Johnson City, Tennessee, lumber dealer is not subject to the Fair Labor Standards Act.

Roger S. Finkbine, president of the National Retail Lumber Dealers Association, points out that the Federal Wage aad Hour Act exempts employees employed in a retail establishment, the greater part of whose sales are in intrastate commerce. Neither the term "retail" nor "establishment" is defined in the Act, and this has resulted in a great deal of confusion in fixing standards to be applied in the determination of the application of this exemption to retail lumber dealers particularly.

Mr. Finkbine further states that while this is a state court decision, he believes that in view of the court's comprehensive analysis of the question and because of the detail in which the court has gone into the matter of a retail establishment, this decision will be accorded substantial weight in other litigation.

In this particular case, a lumber dealer was sued for minimum and overtime wages under the Fair Labor Standards Act by two of his ex-employees. There were two periods of employment. During the first, one of the plaintiffs was employed in operating a delivery truck in and about Johnson City, Tennessee. About two per cent of his time was spent in making deliveries to other states. Dur. ing the second period, both plaintiffs were engaged in making cement blocks on the premises of the lumber establishment, for sale to the regular class of customers of the yard. The court held that both employees vrere employed in a retail establishment and in a retail capacity during both periods.

A number of important points now in controversy and in litigation over the country are specifically passed on by the court:

1. On the question of interstate commerce and produc- tion of goods for interstate commerce, the court held that a few infrequent and sporadic shipments to other states did not result in the employees whose work related to such sales and deliveries being considered as "engaged in (interstate) commerce" or in the "production of goods for (interstate) commerce."

2. The court held that the fact that the lumber dealer purchased a large portion of his materials from sources in other states did not bring his employees into interstate commerce, and stated that the interstate transaction ended on delivery of the goods to the local dealer.

3. On the matter of a retail establishment, the court in its opinion and decree approved as reasonable the 50 per cent retail rule of the Wage and Hour Division, that an establishment making the greater part of its sales at retail is entitled to exemption as a retail establishment.

4. The court included as retail sales "the sale of lumber and building materials to home owners, contractors and other consumers for use in local building construction, repair, and maintenance."

5. The court distinguished the case of Wood vs. Central Sand and Gravel Company, in which more than 90 per cent of the materials sold by the producer of sand and gravel were in huge bulk lots for large project construction.

6. The court held further that an employee making local deliveries by truck from a retail establishment is engaged in a retail capacity within the meaning of Section 13 (a) (1) of the Act, which deals with exemptions.

7. A further important point of the case is that employees engaged in processing activities on the premises of the retail establishment were entitled to exemption because such processing was incidental to the main business of the dealer and was to meet the demands of the local trade. It was said that the processing could not have the effect of converting the business into a wholesale or manuufacturing establishment.

Lumbermen's Pogt Active in Lumber Merchandise News Mailed Dealers Boy Scout \flork

Lumbermen's Post No. 403 of the American Legion has been highly honored in the State and National Boy Scout work.

Several members of the Post have devoted considerable time and energy to the most worth while boy's pl.ogram.

The Post is sponsoring a Troop of Boy Scouts in Culver City and a group of Seascouts in Alhambra, besides a drum and bugle corps that has toured up and down the State for several years.

Those members of the Post that are registered Scouters are:

Milton Taenzer, American Hardwood Lumber Co., who has been lTth District Chairman and now chairman of the Culver City Troop committee.

Sam Giesy, Whiting-Mead Co., committeeman.

Russell Gheen, C. D. Johnson Lumber Corporation, committeeman of both the Culver City Troop and the Seascout Ship.

Andrew Morrison, Owens Park Lumber Co., committeeman.

Andrew Foster, California Portland Cement Co., and commander of the Post, committeeman.

M. A. Alexander, Paramount Studio, committeeman.

Leo E. Hubbard, Hayward Lumber & fnvestment Co., past state chairman of Boy Scouts of American Legion and now chairman of the Los Angeles County Council and Skipper of the Seascout Ship.

Fred Morehouse, Anglo California Lumber Co., is mate of the Seascout Ship "Moro."

Sam T. Hayward, president, Hayward Lumber & Investment Co., chairman of the Seascout committee.

Wm. McCullough, president, McCullough Roofing Co., past commander, committeeman of Seascout Ship.

Theodore (Ted) Stearns and Phil T. Lyons, Hayward Lumber & Investment Co., are members of the Seascout committee.

Wm. Hutchins, Accepted Materials Co., has been very highly honored in the work in Beverly Hills.

The Post has done outstanding work in Scouting and has received several citations from the State as well as the National Headquarters of the American Legion.

Another youth activity of the Post is assisting the camping program of the Camp Fire Girls.

Washington, Feb. 14.-The January-February number of Lumber Merchandising News-the seasonal catalog of ready-written newspaper advertisements for local use, has been mailed more than 10,000 dealers and 500 newspapers by the Joint Retail Service of the National Lumber Manufacturers Association and the National Retail Lumber Dealers Association. This is the fifth issue of the new series.

Eleven pages of advertisements, available in mat form, are included in the catalog with fifteen of the ads offered dealers for the first time. The copy theme of the mats emphasizes "now" as the appropriate time for either building a new home or modernizing and repairing the old home.

These prepared advertisements may be obtained in one, two or three column sizes from the Joint Retail Service at a cost of but 40 cents per mat, or 35 cents each in quantities of ten or more. A small postage charge is the only extra.

The 1941 mailing list is now being prepared and dealers who do not receive the catalog may obtain it by writing the Joint Retail Service, 1337 Connecticut Avenue, Washington, D. C., and requesting the placement of their names on the list.

Conservation Week March 7 -14

San Francisco, February 2S.-Conservationists everywhere in California are completing local plans for the seventh annual public observance of Conservation Week, March 7-I4, opening with Luther Burbank's birthday.

Schools, public organizations and many service groups are working closely with appointed county chairmen of the Conservation Week Committee to remind Californians that "the strength of a Nation lies in its natural resources."

Miss Pearl Chase of Santa Barbara, president of the California Conservation Council which sponsors the Week, has announced a series of Statewide conservation objectives for l94I that appeals for the protection of forests, soil, water, recreation areas, wild life and other natural resources.

Nine kittens \ryere initiated into Hoo-Hoo and five old cats were reinstated at the Concatenation held at the Fairmont Hotel, San Francisco, February 14. The attendance numbered 125.

The new members are the following: W. W. Jackson, J. H. Baxter & Co. San Francisco; Albert Leaver, Wood Products, Inc., Oakland; Ralph Abbott, Smith Lumber Co., Oakland; Ray Klass, The Pacific Lumber Co., San Francisco; Ray Whitby, Redwood Sales Co., San Francisco; Ralph Lamon, Lamon-Bonnington Co., San Francisco; Arda Bennett, Western Basket & Barrel Co., San Francisco; George Clayberg, Boorman Lumber Co., Oakland; and Frank Egnell, Hammond Redwood Co., San Francisco.

Those reinstated were George W. Gorman, Gorman Lumber Co., Oakland; James McNab, E. K. Wood Lumber Co., Oakland; A. S. McCurdy, San Francisco; P. E. Overend. California Redwood Association, San Francisco; Lyle S. Vincent, West Oregon Lumber Co., San Francisco.

The Nine who conducted the initiation was made up as follows: Vicegerent Snark, Bert Bryan ; Senior HooHoo, Fritz Dettmann; Junior I{oo-IIoo, Paul Overend; Scrivenoter, Carl R. Moore; Bojum, Bert Johnson; Jabberwock, Seth Butler; Custocatian, Larue Woodson; Arcanoper, W. B. Jefferson, Gurdon, Carl Warden.

Frank O'Connor was master of ceremonies at the banquet which followed the Concatenation. Larue Woodson and Lewis Godard, who were in charge of the arrangements, provided a fine entertainment program, an outstanding number on this being the Caledonian Pipers Band of San Francisco.

Just before the close of the Concatenation a presenta' tion was made to Cecil Wetsel, Eldorado County lumber' man who captured the kidnaper of Marc de Tristan, Jr., in September, 1940, of an honorary life membership in HooHoo. The presentation was made by Frank W. Trower, Seer of the House of Ancients. Mr. Trower said: