Benson v. UNIVERSAL AMBULANCE SERV., INC.

• Decision Date: 03 September 1980
• Docket Number: Civ. A. No. 79-70906.
• Citation: 497 F. Supp. 383
• Parties: Dennis BENSON, Michael Clarey, John Zimmer, William Riddock, Obrad Zivojnovity and Patrick Clayton, Plaintiffs, v. UNIVERSAL AMBULANCE SERVICE, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

497 F. Supp. 383

Dennis BENSON, Michael Clarey, John Zimmer, William Riddock, Obrad Zivojnovity and Patrick Clayton, Plaintiffs, v. UNIVERSAL AMBULANCE SERVICE, INC., Defendant.

Civ. A. No. 79-70906.

United States District Court, E. D. Michigan, S. D.

September 3, 1980.

Leonard A. Henk, Warren, Mich., for plaintiffs.

Wilfrid L. Burke, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Plaintiffs commenced this action under Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), to recover unpaid overtime wages. Plaintiffs allege that the defendant violated Section 7(a)(1) of the Act, 29 U.S.C. § 207(a)(1), which mandates compensation for employees at "a rate not less than one and one-half times the regular rate" of pay for all hours worked in a work week which exceeds forty hours. Plaintiffs seek both legal and equitable relief as provided for in 29 U.S.C. § 216(b).

Initially, defendant challenges the jurisdiction of this court over plaintiffs' claims under the Fair Labor Standards Act. Specifically, defendant contends that plaintiffs are exempt from coverage under the wage and hour provisions of the Act since they fall within the exclusive jurisdiction of the Secretary of Transportation under the Motor Carriers Act, 49 U.S.C. § 304.¹ This Court rejects defendant's challenge to its jurisdiction.

The plaintiffs and the defendant are engaged in a business which has a substantial effect on interstate commerce. Plaintiffs responded to emergencies on streets and highways over which flows significant commerce between the states. As an integral part of their work, plaintiffs remove obstructions from such streets and highways as to enable commerce to move freely. Plaintiffs transport sick and injured persons to and from airports for interstate travel to other hospitals, clinics, or facilities. Plaintiffs also respond to calls involving persons from other states staying at local hotels and restaurants, and in doing so contribute materially to commerce between the states. Consequently, this Court concludes that the ambulance service is so closely related to the movement of commerce and the functioning of its instrumentalities as to be a part of it. Accordingly, this Court finds that it has jurisdiction over the plaintiffs under the Fair Labor Standards Act, 29 U.S.C. § 216(b). Wirtz v. A-1 Ambulance Service Inc., 299 F.Supp. 197, 201 (E.D.Ark. 1969); Kelly v. Ballard, 298 F.Supp. 1301, 1305 (S.D.Cal. 1969); Duffy v. Oele, 274 F.Supp. 307, 311 (W.D.Mich. 1967); Barnes v. Silva, 61 L.C. 44, 005 (N.D.Cal. 1969).

The plaintiffs are not exempt from the wage and hour provisions of the Act by virtue of the Motor Carriers Act, 49 U.S.C. § 304, which makes it the duty of the Secretary of Transportation to regulate "common carriers by motor vehicle." The administrative regulations of the Motor Carriers Act make clear that the exemption of an employee from coverage under the Fair Labor Standards Act extends only to those who: (1) are employed by carriers whose transportation of passengers and property is subject to the jurisdiction of the Secretary of Transportation under Section 204 of the Act, as amended, 49 U.S.C. § 304; and (2) engage in activities which directly affect the safety or operation of such motor vehicles used in interstate commerce, 29 CFR 782.2.

Defendant is not a "carrier" within the letter and spirit of the Motor Carriers Act, Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786 (1946), nor are plaintiffs engaged in activities which directly affect the safety or operation of motor vehicles as intended by the Act. Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158 (1947); United States v. American Trucking Assoc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). The title and language of the Motor Carriers Act, its legislative history, and its administrative interpretation, 49 CFR 390.1-390.45, all demonstrate that Congress did not intend to vest the Interstate Commerce Commission (or now Secretary of Transportation) with jurisdiction over employees other than of carriers actually involved in interstate cartage, such as those in the trucking industry. It would certainly be a distortion of both the Motor Carriers Act and the Fair Labor Standards Act to deny plaintiffs jurisdiction in accordance with defendant's contentions. See Boutell v. Walling, 148 F.2d 329 (C.A.6, 1945), affirmed 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786 (1946).

The operative facts of this litigation are not in dispute. Plaintiffs worked a 72-hour work week, divided into three 24-hour shifts. Plaintiffs allege that they were not paid overtime wages for the 32 hours they worked each week which was in excess of the statutory 40-hour work week. Defendant alleges that an implied agreement existed with each of the plaintiffs to exclude from each 24-hour shift worked, 8-11 hours of unpaid sleeping time, and three hours of unpaid eating time. Plaintiffs further allege that even if such an implied agreement existed, they did not receive sufficient periods of uninterrupted sleep or mealtime as to allow defendant to consider such time as non-working hours under the wage and hour regulations.

Having determined that this Court has jurisdiction over this matter, there are two narrow issues to be decided:

I. Whether there existed an implied agreement between the parties to exclude from each 24-hour shift worked, 8-11 hours of unpaid sleeping time and/or three hours of unpaid eating time?

II. Whether, even it such an implied agreement did exist between the parties, the plaintiffs' job duties made it impossible for them to receive either five hours of uninterrupted sleeping time or 30 minutes or uninterrupted eating time?

The Court held four days of trial beginning on August 14, 1980 in which it heard the testimony of 13 witnesses and admitted Exhibits # 1 through # 27 into evidence.

Upon review of the entire record, the Court hereby sets forth its findings of fact and conclusions of law pursuant to F.R. Civ.P. 52(a).

FINDINGS OF FACT

1. Defendant Universal Ambulance Service is a closely held corporation which has been in existence for 32 years. Over the years defendant has done business under different names due to various corporate transactions, but at all times relevant to this suit has done business under the name of Universal Ambulance Service. The defendant's principal place of business is located in Macomb County, Michigan, which is within the jurisdiction of the Eastern District of this Court. (Testimony of Brian Walker)

2. The six plaintiffs—Dennis Benson, Michael Clarey, John Zimmer, William Riddock, Obrad Zivojnovity, and Patrick Clayton, were employees of the defendant for all or part of the period in question—from March 30, 1977 to March 30, 1979. (Stipulation of Parties, Final Pretrial Statement ¶ 3)

3. The plaintiffs were hired either as drivers, attendants, or dispatchers of defendant's ambulances. As such, plaintiffs' job duties consisted primarily of the pick-up and transport of sick and injured persons to and from hospitals, clinics, homes, and other facilities. (Testimony of Brian Walker and all plaintiffs)

4. In addition, when not responding to calls, plaintiffs' job duties consisted of cleaning, stocking and maintaining of ambulances, completing reports on each call, cleaning and maintaining the station house, making deliveries and running various errands, laundering sheets and other items used by the business, answering phones, and "cruising" allotted areas in anticipation of emergency calls. (Testimony of Brian Walker and all plaintiffs)

5. Plaintiffs Dennis Benson, John Zimmer, and Obrad Zivojnovity were hired by Donald McLocklin, President and part-owner of Universal Ambulance Service. Plaintiffs Michael Clarey, William Riddock and Patrick Clayton were hired by Brian Walker, General Manager of Universal Ambulance Service. (Testimony of Brian Walker and all plaintiffs)

6. Plaintiff Dennis Benson was hired on August 11, 1973. At that time, he was told that "hours worked were hours paid." He was also told that he was employed to work at least 72 hours each week. (Testimony of Dennis Benson)

7. Plaintiff John Zimmer was hired on March 9, 1974. At that time, he was told that he would be paid for the entire 72 hours he worked each week. (Testimony of John Zimmer)

8. Plaintiff Obrad Zivojnovity was hired on February 23, 1974. At that time, he was told that the defendant was "the only ambulance company in Michigan which paid 24 hours on and 24 hours off." He understood that he was to be paid for all 72 hours worked. (Testimony of Obrad Zivojnovity)

9. Plaintiff Michael Clarey was hired on April 13, 1977. At that time, he was told that he was to be paid "72 hours pay for 72 hours work." It was stressed to him that the defendant was the only ambulance company which paid the full 72 hours without any deductions. (Testimony of Michael Clarey and Brian Walker) 10. Plaintiff William Riddock was hired on May 24, 1978. At that time, he was told that he would be paid 24 hours out of 24 hours. He understood that he was being paid for all 72 hours worked. (Testimony of William Riddock)

11. Plaintiff Patrick Clayton was hired on January 21, 1976. At that time, he was told he would be paid a salary for 72 hours work. Later, when he approached Mr. Walker he was specifically told that the defendant did not pay overtime wages. (Testimony of Patrick Clayton and Brian Walker)

12. When each of the plaintiffs were hired, they were not told, nor did they impliedly agree, that unpaid hours would be deducted as sleeping or eating time. (Testimony of Brian Walker and all plaintiffs)

13. The defendant's manager, Brian Walker, called a meeting of all employees in April of 1975 to discuss the company wage structure and compensation policy. Plaintiffs Dennis Benson, John Zimmer, and Obrad Zivojnovity were present at this meeting. The management and the...