955 F.2d 1029 (5th Cir. 1992), 90-3706, Martin v. Bedell

Docket Nº:90-3706.
Citation:955 F.2d 1029
Party Name:Lynn MARTIN, Secretary of Labor, Plaintiff-Appellant, v. Leslie N. BEDELL and Blue Water Marine, Catering, Inc., Defendants-Appellees.
Case Date:March 25, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1029

955 F.2d 1029 (5th Cir. 1992)

Lynn MARTIN, Secretary of Labor, Plaintiff-Appellant,

v.

Leslie N. BEDELL and Blue Water Marine, Catering, Inc.,

Defendants-Appellees.

No. 90-3706.

United States Court of Appeals, Fifth Circuit

March 25, 1992

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[Copyrighted Material Omitted]

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Wendy B. Bader, William J. Stone, Paula W. Coleman, Counsel, Appellate Lit., U.S. Dept. of Labor, Washington, D.C., Robert P. Davis, Sol. of Labor, U.S. Dept. of Labor, Dallas, Tex., for plaintiff-appellant.

Haywood H. Hillyer, III, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

WISDOM, Circuit Judge:

This case presents the question whether the cooks employed by the defendant/appellee, a caterer to boats providing offshore support to oil companies in the Gulf of Mexico, are entitled to overtime pay under the Fair Labor Standards Act (FLSA). Because the income generated by those cooks must be attributed to their employer, the employer is bound to comply with the Act's overtime provisions. Because the district court's factual findings are insufficient to support its determination that the cooks do not fit within the narrow definition of "seaman" under the FLSA, we remand for further, limited factual findings. We therefore REVERSE the decision below as to the employer's exemption from enterprise coverage, and REMAND as to the cook's status as nonseaman, so that the district court may make necessary findings as to the work the cooks perform.

I. BACKGROUND

Blue Water Marine Catering, Inc. ("Blue Water") supplies cooks for "jack-up boats". Those boats provide offshore maintenance services for oil companies. Both parties concede that the oil and gas produced by those companies enter the stream of interstate commerce.

For the dates pertinent to this appeal, Blue Water paid its cooks a day rate. The Department of Labor, through its Wage and Hour Division, investigated Blue Water and determined that this form of payment violated the FLSA. The Secretary of the Department of Labor, Elizabeth Dole (now Lynn Martin), brought this suit to force Blue Water and its president, Leslie N. Bedell, to comply with the overtime provisions of the FLSA. Accordingly, we shall refer to the plaintiff/appellant as "Labor".

The district court held a one-day bench trial limited to Blue Water's liability. The court decided that neither the cooks as individuals nor Blue Water as an enterprise was covered by the FLSA. As to the cooks, it held that their work outside of Louisiana's territorial waters was outside the jurisdiction of the FLSA. When the cooks did work within those waters, the court held that the food they cooked (food that was consumed aboard) was not "goods for commerce"; therefore, their services were not closely related to or directly essential to the production of goods for commerce, and were not covered by the Act. The court also held that Blue Water itself was excused from compliance because it fitted within the Act's exception for business establishments employing only immediate

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members of one family. Finally, the court held that the cooks, although they worked on seagoing vessels, did not fit within the FLSA's narrowly construed exemption of seamen. Labor appeals all but this last holding, which Blue Water challenges.

II. THE STATUTORY FRAMEWORK

The FLSA guarantees overtime pay to employees engaged "in the production of goods for commerce" ("individual coverage") or "employed in an enterprise engaged in commerce or in the production of goods for commerce" ("enterprise coverage"). 1 Either individual or enterprise coverage is enough to invoke FLSA protection. 2

Many exceptions temper the strictness of this rule. Relevant to the issue of enterprise coverage in this case is the "mom and pop" exception. The FLSA defines "enterprise engaged in commerce or in the production of goods for commerce" to exclude "any establishment which has as its only regular employees" members of one immediate family. 3 The sales of such an establishment are not included in determining the minimum amount of revenues that triggers the Act's application. 4 Labor's interpretive bulletins define an "establishment" to be a "distinct physical place of business". 5 The only employees who work at the home office establishment of Blue Water are Mr. Bedell, his wife, and her daughter. Without other "regular employees" their office in Gretna, Louisiana would be excluded from the Act as a "mom and pop" establishment.

There are also relevant exemptions from individual coverage. For example, an employer need not comply with the Act's overtime requirements if its employees are exempt under 29 U.S.C. § 213(b). One of those exemptions, § 213(b)(6), is for "any employee employed as a seaman".

III. ENTERPRISE COVERAGE AND THE "MOM AND POP" EXCLUSION

Applying the words "employer", "establishment", and "enterprise" under the FLSA can be confusing. Labor's own interpretations bravely attempt to define them. 6 In general, "employer" is usually a

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person; "establishment" is a place of business; and "enterprise" is the business itself, a number of related activities done for a common business purpose.

For the times relevant to this case, no enterprise was subject to the FLSA unless its annual gross sales volume exceeded $250,000. 7 As we noted above, the Act excludes sales figures for a "mom and pop" establishment that regularly employs only immediate family members. The district court found that Blue Water's home office in Gretna, Louisiana was such an establishment: its sales figures, all generated from that establishment, would not count toward a finding of enterprise coverage. The court found that the jack-up boats on which the cooks are employed are separate establishments under the Act, but that the sales volume generated by the cooks' work in those establishments were attributable to Blue Water's home office. For that reason, those sales (which the court found to be greater than $250,000) do not count toward enterprise coverage. In so ruling, the court weaved two errors together. Unravelling them reveals two separate holdings by which the district court might have found, and by which we find as a matter of law, that Blue Water is subject to enterprise coverage under the FLSA.

The court erred first in the legal finding that, "while the cooks and galley hands are employees of Blue Water's enterprise, they are not employees of the Heritage Avenue [Bedell home office] establishment". The court found that "[n]one of the other regular employees of Blue Water ever set foot inside this establishment"; "the only regular employees of that establishment" are the three...

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