(a) Further to make certain that the exemption applies to retail
establishments only and not to factories, an additional requirement of
the exemption is that the goods which the exempt establishment makes or
processes must be made or processed at the establishment which sells the
goods. The exemption does not apply to an establishment which makes or
processes goods for sale to customers who will go to other places to buy
them. Thus an establishment that makes or processes any goods which the
employer will sell from another establishment, is not exempt. If the
establishment making the goods does not sell such goods but makes them
for the purpose of selling
them at other establishments the establishment making the goods is a
factory and not a retail establishment.
(b) Where the making or processing of the goods takes place away
from the selling establishment, the section 13(a)(4) requirement that
both the making or processing and selling take place at the same
establishment cannot be met. This will be true even though the place at
which the goods are made or processed services the retail selling
establishment exclusively. In such a situation, while the selling
establishment may qualify for exemption under section 13(a)(2), the
separate establishment at which the goods are made or processed will not
be exempt. The latter is a manufacturing establishment. For example, a
candy kitchen manufacturing candy for sale at separate retail outlets is
a manufacturing establishment and not a retail establishment. (Fred
Wolferman, Inc. v. Gustafson, 169 F. 2d 759 (CA-8.))
(c) The fact that goods made or processed on the premises of a bona
fide retail establishment are sold by the establishment through outside
salesmen (as, for example, department store salesmen taking orders from
housewives for draperies) will not defeat the exemption if otherwise
applicable. On the other hand, in the case of a factory or similar
establishment devoted to making or processing goods, the fact that its
goods are sold at retail by outside salesmen provides no ground for
recognizing the establishment as a retail establishment or qualifying it
for exemption.
