George P. Shultz, Secretary of Labor, United States Department of Labor v. Roger Merriman , 425 F.2d 228 ( 1970 )

PER CURIAM.

The decision of the district court is affirmed on the basis of its opinion, reported 303 F.Supp. 1174, except as modified herein. We do not adopt the penultimate paragraph, and the paragraph immediately prior thereto; the one because the finding that 26% of the plans, maps, etc., hereinafter plans, moved in interstate commerce is unsupported in the evidence, and the other because we find it unnecessary to our decision.

Amplifying the portion of the opinion dealing with the question whether the plans constituted “goods,” we are of the view that plans are not merely embodiments of intangible professional advice, but are ultimate physical products, capable of multiple uses. They do not fail to meet the ordinary concept of goods simply because a substantial amount of professional skill preceded or entered into their composition.

With regard to the substantiality and regularity of defendant’s activities in causing his plans to move in interstate commerce, it is true that no definite figures were introduced into evidence. This was largely because of defendant's unresponsive answer to Interrogatory No. 8. Nonetheless, we find it impossible to construe the admitted facts as showing other than substantial and consistent movement in commerce. Mabee v. White Plains Pub. Co., 1946, 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607. Even if the full 26% of the customers who were billed at their “addresses * * * of record” outside of the state did not there receive their plans initially (or by forwarding, see White v. Wirtz, 10 Cir., 1968, 402 F.2d 145), we cannot but conclude that a substantial portion of these plans were wanted at, and sent with some regularity to, the domicile of the customer. Defendant’s testimony that all were not so sent does not go far enough to contradict the natural inference that a considerable number were. We note particularly that some of defendant’s out-of-state clientele were corporations, who presumably wanted their plans at their home office.^* As we pointed out in Mitchell v. Dooley Bros., Inc., 1 Cir., 1970, 286 F.2d 40, at 44, cert. denied 366 U.S. 911, 81 S.Ct. 1086, 6 L.Ed.2d 236, a very small proportion of interstate shipments satisfies the act.

On the record we must rule as matter of law that the defendant’s employees were engaged in the production of goods for commerce.

* In the year 1967 out-of-state corporations were billed for plans as follows: March, Valpey Corp.; Title Guarantee Co.; Woodland Shores, Inc.; June, Valpey; August, Valpey; Sept., Cata Corp.; Oct., Valpey; Dec., Belknap Dev. Corp. (twice).