Brennan v. Bill Kirk's Volkswagen, 73-1878.

• Decision Date: 14 June 1974
• Docket Number: No. 73-1878.,73-1878.
• Citation: 497 F.2d 892
• Parties: Peter J. BRENNAN, Secretary of Labor, Appellant, v. BILL KIRK'S VOLKSWAGEN and William W. Kirk, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

497 F.2d 892 (1974)

Peter J. BRENNAN, Secretary of Labor, Appellant, v. BILL KIRK'S VOLKSWAGEN and William W. Kirk, Appellees.

No. 73-1878.

United States Court of Appeals, Fourth Circuit.

Argued February 7, 1974.

Decided June 14, 1974.

John K. Light, Atty. (William J. Kilberg, Solicitor of Labor, Carin Ann Clauss, Associate Sol., Donald S. Shire, Atty., Louis Weiner, Regional Sol., Dept. of Labor, on brief), for appellant.

Warren M. Davison, Baltimore, Md. (Earle K. Shawe, Jeffrey L. Levin, and Shawe & Rosenthal, Baltimore, Md., on brief), for appellees.

Before BRYAN, Senior Circuit Judge, and BUTZNER and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

This suit was brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 217, to enjoin Bill Kirk's Volkswagen, Inc., and its president, William W. Kirk, Jr., from violating the Act's overtime and recordkeeping provisions and to restrain the continued withholding of unpaid wages due several of its employees. The defendants claimed that Alexander Rheubottom, the only employee involved in this appeal, performed a portion of his work before and after regular business hours as an "independent contractor" and therefore such overtime work was not subject to the requirements of the Fair Labor Standards Act. The district court rejected this defense and found that Rheubottom was an employee within the meaning of the Act. But the court also held that Rheubottom's work fell within the Act's § 13(b)(10) exemption, 29 U.S.C. § 213(b)(10), which in part exempts mechanics from the overtime requirements of the Act for work performed in servicing automobiles in a nonmanufacturing selling establishment.

While we are unable to agree that Rheubottom is exempt under the exemption of 29 U.S.C. § 213(b)(10), his work may be exempt under the premium rate provision of 29 U.S.C. § 207(e)(7), and we vacate and remand with instructions.

The facts are not controverted. Since 1965, Rheubottom has been employed by Bill Kirk's Volkswagen, Inc., as a used car reconditioner. In this capacity, he buffs, paints and washes used cars. He checks periodically to insure they are in running order. When necessary, he changes batteries but otherwise he performs no mechanical tasks. In addition to these duties, Rheubottom performs other tasks of a miscellaneous nature during his 8:00 a. m. to 5:00 p. m. workday. During his regular work period, Rheubottom is paid an hourly rate of $2.29; and he is paid at time-and-one-half, or $3.43, for any work over 8 hours a day or 40 hours in a week.

During the off-duty hours of the first four years of his employment at the company, Rheubottom performed appearance reconditioning on used cars for a friend who had his own garage. The two of them obtained cars from various dealers and the friend paid Rheubottom a fixed sum per car reconditioned at his garage. After four years, this arrangement was terminated, but Rheubottom continued to supplement his income by working after hours for another automobile dealership in the Baltimore area. Finally, in 1970, Rheubottom approached company president William Kirk with the proposal that he be allowed to perform supplemental work at Kirk's premises for a fixed price, set by Rheubottom, of $18.00 for each car he reconditioned. As Rheubottom testified at trial, the arrangement was quite satisfactory since "I avoid the travel, the expense, the overhead and the materials." Indeed, it was shown that Rheubottom has made $4,400 more by this arrangement with the company than he would have earned had he been paid at time-and-one-half figured at his base rate of $2.29.¹

The district court dismissed the complaint on the basis that Rheubottom's work was exempt from the Act's overtime requirements under § 13(b)(10), 29 U.S.C. § 213(b)(10), which applies to

"any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers."

We are of opinion, however, that Rheubottom's appearance reconditioning work, which involves washing, cleaning, painting, and polishing used cars, and his various porter and errand duties do not qualify him as a mechanic under the definition of that term as considered here.

Rheubottom performs no work on the various mechanisms of the automobiles he reconditions, unless charging or changing a battery be so considered, nor does he utilize specialized tools. During trial, Rheubottom testified that "if a car is not running and it takes more than a charge for the battery, I report it to the supervisor, and he in turn reports it to the mechanic, and the car is taken in for the proper maintenance to be done on it."

The Act itself does not define the word mechanic, but the...