Before MAJOR, Chief Judge, FINNEGAN and SWAIM, Circuit Judges.
This appeal presents a question of whether or not the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A., Sec. 201, et seq., is applicable to the employees of the defendant, The Pilgrim Holiness Church Corporation, a religious corporation organized under the laws of the State of Indiana. This corporation owns and occupies the major portion of a five and a half story building located in the downtown section of Indianapolis, Indiana. The defendant has a printing plant in the basement of this building, a mail order office, a book store and the office of its general treasurer on the first floor, and the general offices of other departments of the corporation on the second and third floors. It rents the fourth and fifth floors as general office space to tenants who have no other connection with the defendant corporation.
The Secretary of Labor of the United States filed an action against the defendant alleging violation by the defendant of Sections 6, 7, 11 and 15 of the Fiar Labor Standards Act, in that the defendant had paid its employees less than the minimum wage rate required by the Act; that the defendant had failed to pay its employees the overtime prescribed by the Act for work in excess of forty hours per week; that defendant had failed to make, keep and preserve adequate and accurate records as to the hours worked by its employees and the wages paid therefor; and that defendant had sold and shipped in interstate commerce goods in the production of which its employees had been employed in violation of Sections 6 and 7 of the Act. The complaint asked for a judgment permanently enjoining the defendant from further violating the Act.
The defendant filed a motion to dismiss the complaint because it did not state a claim on which relief could be granted. The plaintiff thereupon filed a motion for summary judgment on the ground that there was no genuine issue as to any material fact and that plaintiff was entitled to judgment as a matter of law. The plaintiff's motion was supported by the affidavit of an investigator for the Department of Labor who made an investigation of the defendant's records, books and invoices, and as to the activities, wages and hours worked by the defendant's employees. This affidavit stated that the investigator had visited and inspected the defendant's building and had talked with the officers and employees of the defendant corporation, and that the affidavit was made on the basis of information the investigator had obtained in such investigation and interviews.
The investigator's affidavit disclosed the following facts. The defendant, as a part of its activities, operates a printing establishment which prints pamphlets, leaflets, magazines and other printed material most of which is of a religious nature and most of which is delivered by mail to customers outside of the State of Indiana. In the two-year period from September 1950 to September 1952The defendant's mail order department made sales to customers in Indiana in the amount of $147,606.55, while the sales to customers outside of Indiana totaled $222,519.67. During this same two-year period the printing department of the church corporation did work having a total dollar value of $118,602.93. Of this last amount $13,861.46 represented printing work done by the defendant for commercial firms, individuals and other printing shops. This latter work included letter-heads, insurance policy blanks and riders, calendar calling cards, post cards, greeting cards, stationery and job printing of other types.
From the general treasurer of the defendant the investigator learned that in 1949, $125,000.00 of the assets of the defendant represented profits from its printing and publishing activities; that, as of July 1952, the corporation's assets represented a total of $247,516.88, an increase of $65,000.00, and that their publication service was "reaching more and more beyond our own denomination, for church and Sunday school supplies." The defendant employs 39 persons exclusive of church officials and employees who work in the defendant's retail book store. Thirteen of these employees physically produce the printed matter in the printing plant, including wrapping, addressing and shipping, while the others do the editorial and clerical work, act as receiving and shipping clerk, operate the elevator and do the janitor work.
The payroll and time records of the defendant and interviews with its employees and representatives disclosed the violations of the Fair Labor Standards Act alleged in the complaint.
A counter-affidavit made by the general treasurer of the defendant corporation stated that the defendant is incorporated as a religious organization under the laws of the State of Indiana; that the purpose for which it was organized was "to glorify God, publish the full Gospel to every nation, and promote the Christian religion by spreading religious knowledge, and generally to function as a Church body, and particularly as the head of the Pilgrim Holiness Churches"; that its printing department is for the primary purpose of supplying its various other departments with the necessary literature and printed matter and that the defendant "has not knowingly or intentionally engaged in ordinary commercial printing and has done no such work except in a few isolated instances of an insignificant amount."
In opposition to the plaintiff's motion for summary judgment the defendant also filed affidavits made by several of its employees indicating that they did not consider themselves as "mere wage earners," but rather that they had accepted work with the defendant in the belief that they were doing religious work.
The District Court denied the plaintiff's motion for summary judgment, treated the defendant's motion to dismiss the complaint as a motion for summary judgment to be disposed of as provided for in Rule 56 of the Federal Rules of Civil Procedure, and entered judgment dismissing the action.
In considering the propriety of the entry of this summary judgment on the motion of the defendant we must remember that all facts properly pleaded by the plaintiff must be accepted as true, Purity Cheese Co. v. Frank Ryser Co., 7 Cir., 153 F.2d 88; and that the facts disclosed by the affidavits and counter-affidavits must be considered in the light most favorable to the plaintiff, Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881, 884; and that, "A summary judgment upon motion therefor by a defendant * * * should never be entered except where the defendant is entitled to its allowance beyond all doubt." Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213, 216.
The plaintiff insists that the defendant's employees engaged in the operation of its printing plant are entitled to the benefits provided by the Fair Labor Standards Act because they are engaged in the preparation, printing and interstate shipment of printed materials and are, therefore, engaged in interstate commerce or in the production of goods for commerce.
We think this contention is sound. The word "commerce" as used in the Fair Labor Standards Act is not limited to transactions where there are actual commercial sales of the goods produced and transported. In Powell v. United States Cartridge Co., 339 U.S. 497, the cartridge company was operating a munitions factory for the Government under a contract providing that for its services the cartridge company would be reimbursed for its expenditures and in addition thereto be paid a fixed fee for its services. The Government owned the plant used for the manufacture of the ammunition, the raw materials used, the ammunition in the process of being manufactured, and the finished product. The court there held that the "transportation" of this ...