Bingham v. Airport Limousine Service

• Citation: 314 F. Supp. 565
• Decision Date: 01 July 1970
• Docket Number: No. HS-68-C-33.,HS-68-C-33.
• Parties: Jim BINGHAM, Bill Bridges, Richard Glover, Hershel Lambert, on behalf of themselves and on behalf of other employees similarly situated, Plaintiffs, v. AIRPORT LIMOUSINE SERVICE, Defendant.
• Court: U.S. District Court — Western District of Arkansas

314 F. Supp. 565

Jim BINGHAM, Bill Bridges, Richard Glover, Hershel Lambert, on behalf of themselves and on behalf of other employees similarly situated, Plaintiffs, v. AIRPORT LIMOUSINE SERVICE, Defendant.

No. HS-68-C-33.

United States District Court, W. D. Arkansas, Hot Springs Division.

July 1, 1970.

COPYRIGHT MATERIAL OMITTED

Silas Brewer, of McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., for plaintiffs.

Hobbs & Longinotti, Hot Springs, Ark., for defendant.

OPINION

JOHN E. MILLER, Senior District Judge.

This is a private lawsuit filed by plaintiffs on November 5, 1968, whereby they seek recovery of unpaid compensation, unpaid overtime compensation, an additional equal amount as liquidated damages and a reasonable attorney's fee from defendant pursuant to the provisions of the Fair Labor Standards Act of 1938, as amended. 29 U.S.C. § 201 et seq.

Plaintiffs contend that, while employed by defendant, they were regularly and customarily engaged in interstate commerce, performing duties as limousine drivers transporting passengers, luggage, mail and air express items from the Hot Springs, Arkansas, Municipal Airport to locations within the City of Hot Springs, a substantial portion of such passengers and property having begun their journey in states other than Arkansas. They allege that defendant has failed and refused to compensate them at the prescribed minimum wage and overtime rate for their respective periods of employment.

Defendant admits that plaintiffs were engaged in commerce while employed by him, but denies that he failed to compensate them at the minimum wage rate required by the Act; defendant affirmatively pleads that plaintiffs were "tipped employees" within the provisions of 29 U.S.C. § 203(m) and (t),¹ and that the wages of plaintiffs should be deemed to be increased by the amount of such tips; that the wages of plaintiffs include the reasonable cost to defendant of furnishing plaintiffs uniforms for their use and benefit and the use of a motor vehicle 24 hours per day during working days, which vehicles were entirely maintained and repaired by defendant;² that the claims of plaintiffs for wages due prior to November 5, 1966, are barred by limitations; that the claim of plaintiff Bingham is entirely barred by reason of a release executed by Bingham on October 12, 1968; and that the overtime compensation provisions of the Act do not apply to plaintiffs by virtue of 29 U.S.C. § 213(b) (1).

The following shall constitute the findings of fact and conclusions of law of the court, as contemplated by Rule 52(a), Fed.R.Civ.P.

The court has jurisdiction by virtue of 28 U.S.C. § 1337 and 29 U.S.C. § 216 (b).

Although the defendant is not an enterprise engaged in commerce or in the production of goods for commerce within the meaning of 29 U.S.C. § 203 (s), each plaintiff was engaged in commerce during each workweek of his employment with defendant, in that plaintiffs engaged in regular and continuous handling and transporting of persons and property which had moved in commerce. Each, in his capacity as a driver for defendant's Airport Limousine Service, handled and transported passengers, luggage, mail and air freight on a daily basis, a substantial portion of which originated in other states. Mail matter was handled and transported by plaintiffs pursuant to a contract between defendant and the United States Postal Department which obligated defendant to pick up mail several times daily at the Hot Springs Post Office and deliver it to the Hot Springs Memorial Airport for air transportation and vice versa. The defendant provided limousine service for all incoming and outgoing flights seven days per week. During some months of the year the Airport Limousine Service transported over two thousand passengers and their luggage to and/or from the Hot Springs airport. The court must conclude, and defendant does not dispute, that the activities of plaintiffs are so directly and vitally related to interstate commerce as to be in practice and legal contemplation a part thereof. Wirtz v. First State Abstract and Insurance Co., (8 Cir. 1966) 362 F.2d 83, and cases there cited at page 87. Plaintiffs therefore fall within the minimum wage coverage of Section 206 of the Act.

However, the overtime compensation provisions of Section 207 of the Act do not apply with respect to any of the plaintiffs. Section 213(b), 29 U.S.C.A. § 213(b), contains numerous exemptions from the overtime requirements of the Act, including Section 213(b) (1), which provides:³

"(b) The provisions of section 207 of this title shall not apply with respect to—

"(1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49;"

Section 204 of the Motor Carrier Act, 49 U.S.C. § 304, provides in part that the Commission shall have the duty to regulate common carriers by motor vehicle, contract carriers by motor vehicle, and to establish for private carriers of property by motor vehicle reasonable requirements to promote safety of operation, if need therefor is found. It is well settled that it is not necessary for the Secretary of Transportation to have actually established qualifications and maximum hours of service for the Section 213(b) (1) exemption to apply. The mere existence of his power to do so is sufficient. Levinson v. Spector Motor Service, (1947) 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158; Galbreath v. Gulf Oil Corporation, (N.D.Ga.1968) 294 F. Supp. 817.

It would appear that defendant is a "common" and "contract" carrier within the meaning of 49 U.S.C. § 303(a). It is there provided that a "common carrier by motor vehicle" is:

"* * * any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, * * *."

The term "contract carrier by motor vehicle" is defined as:

"* * * any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation * * *, under continuing contracts with one person or a limited number of persons * * * for the furnishing of transportation services designed to meet the distinct need of each individual customer."

In addition to his contract with the United States Postal Department, defendant has a contract with the airlines serving the Hot Springs airport, under which he is obligated to provide transportation for their passengers and air freight. Defendant also holds himself out for hire to the general public for the transportation of passengers and property over a regular route to and from the airport.

As the Motor Carrier Act and the Fair Labor Standards Act cannot both apply in this connection, Morris v. McComb, (1947) 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44, the construction of the Motor Carrier Act must here control. "Interstate commerce" is defined in the Motor Carrier Act as follows:

"The term `interstate commerce' means commerce between any place in a State and any place in another State or between places in the same State through another State, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water * *." 49 U.S.C. § 303(a) (10).

Under the Motor Carrier Act, interstate commerce does not mean that there must be an actual carriage of goods across state lines, and the fact that the operations of plaintiffs were wholly within the State of Arkansas is thus not decisive. Morris v. McComb, supra; Walling v. Jacksonville Paper Co., (1943) 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Beggs v. Kroger Co., (8 Cir. 1948) 167 F.2d 700. The ultimate question is whether the transportation here involved a "practical continuity of movement" from other states to locations within the City of Hot Springs or whether the passengers and property here involved lost their character as interstate commerce when they came to rest at the Hot Springs Memorial Airport. Walling v. Jacksonville Paper Co., supra. The court holds that there was continuity of movement so that the passengers and property were moving in commerce not merely to the airport but all the way to their ultimate destination at points within the city.

As the court in Jacksonville Paper stated at 317 U.S. 568, 63 S.Ct. 335:

"* * * (I)f the halt in the movement * * * is a convenient intermediate step in the process of getting them to their final destinations, they remain `in commerce' until they reach those points."

It is, of course, true that Jacksonville Paper involved a construction of the Fair Labor Standards Act, but the courts have since had no hesitation or difficulty in applying the test there enunciated in reaching a conclusion that goods "continuously moving" in interstate commerce were subject to the Motor Carrier Act and exempt from the Fair Labor Standards Act. Shew v. Southland Corp., (5 Cir. 1966) 370 F.2d 376; Beggs v. Kroger Co., supra; Martinez v. Phillips Petroleum Co., (D.Ida.1968) 283 F.Supp. 514.

It should be added that the court does not construe the words "rail, express, or water" in 49 U.S.C. § 303(a) (10) to be words of limitation, at least insofar as they relate to the jurisdiction of the Secretary of Transportation to establish qualifications, maximum hours of service of employees, and standards of equipment. Though Congress did not specifically refer to air service, it should be kept in mind that when this section was adopted, in the 1930's, air transportation was then considered essentially "express service." Zantop Air Transport, Inc., v. United States, (E.D. Mich.1965) 250 F.Supp. 623. The power provided by the Motor Carrier Act extends to the "transportation of passengers or property by motor carriers engaged in interstate or foreign commerce" which would seem to...