Brennan v. Carrasco, 75-1443
| Citation | 540 F.2d 454 |
| Decision Date | 12 August 1976 |
| Docket Number | No. 75-1443,75-1443 |
| Parties | 22 Wage & Hour Cas. (BN 1243, 79 Lab.Cas. P 33,417 Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. J. G. CARRASCO, Individually and J. G. Carrasco, Inc., doing business as J. C.Inc. Liquid Waste Disposal, a corporation, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before KOELSCH, TRASK and KENNEDY, Circuit Judges.
In this action the Secretary of Labor sought to enjoin the defendants-appellants from violating the overtime requirements of the Fair Labor Standards Act 1 and to restrain the continued withholding of back wages to their employees under the Act.
After a hearing on cross motions for summary judgment based on a Joint Statement of Facts, the trial court upheld the Secretary's position that appellants' business was a covered "enterprise" within the meaning of Section 3(s)(1) of the Act and that it was therefore required to comply with overtime provisions. 2 Judgment was entered requiring payment of back wages with interest.
This appeal challenges the ruling that the business is a covered enterprise and also the order requiring appellants to make restitution of unpaid wages.
The trial court made extensive findings of fact which we do not find to be clearly erroneous and which tell us that the corporate defendant, J. G. Carrasco, Inc., operates a liquid waste disposal service (known generally as J. C. Inc. Liquid Waste Disposal) in El Monte, California. J. G. Carrasco, the individual defendant, manages the firm. The company is engaged in the pickup, transportation (by means of tank trucks), disposal and dumping of liquid waste, primarily for industrial and commercial concerns. At least 99 percent of defendants' business is performed for industrial firms which produce goods for interstate commerce and for airlines engaged in interstate transportation. Throughout the period covered by this action, November 1971 to December 1974, defendants' annual gross volume of business exceeded $250,000.
During the period in question, at least two of defendants' employees rendered liquid waste removal services each workweek for at least one of the following industrial customers: Standard Oil, Chevron Oil, Chevron Chemical, Alcan Aluminum, Norris Industries, McCulloch Corporation and Shell Oil. Each of these companies produces goods which are sold and delivered to places outside the State of California. The liquid waste which defendants' employees remove from these customers' premises is a by-product of their manufacturing processes and, as the district court found, if the waste is not removed "the industrial concerns would curtail or cease to produce (the) goods."
Similarly, during each workweek since May 1972, at least two of defendants' employees performed liquid waste disposal services for one or more of the following airlines: Western, United, American and Continental. Each of these airlines is engaged in transporting passengers and materials to and from places outside the State of California. The liquid waste is generated by cleaning and repairing airplane parts at the airlines' repair facilities. The district court found that if the waste is not removed "the airlines would curtail or cease to clean and repair their airplanes at Los Angeles International Airport."
The parties stipulated as to the precise nature of defendants' waste removal activities with respect to two typical customers: Norris Industries and Western Airlines. It was agreed that Western Airlines was and is engaged in interstate commerce and that Norris Industries produces goods for interstate commerce.
It was further stipulated that "Norris Industries would curtail or cease production without the disposal of its liquid waste," and that "Western Airlines will curtail or cease the cleaning and repair of their airlines (sic) if the liquid waste engendered from the cleaning cannot be disposed of legally." Moreover, it was undisputed that the airline customers "engaged in the transportation of passengers, materials, and communications to and from places outside the State of California" and that the "industrial concerns have been engaged in the production of goods which have been and are being sold, delivered, or shipped to places outside the State of California."
Upon review of these established facts, the district court found, inter alia, that:
We cannot say that these facts found by the court are clearly erroneous or that the conclusions of law based upon these facts are invalid.
In Schultz v. Instant Handling, Inc., 418 F.2d 1019, 1022 (5th Cir. 1969), the court held that "the removal of industrial waste and other debris" from the premises of major producers of goods for interstate commerce was "essential to the...
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Carter v. Jai-Put Enter. Inc.
...focus on, for example, workers that provide waste removal services for businesses that produce interstate goods. See Brennan v. Carrasco, 540 F.2d 454 (9th Cir. 1976); see also Mitchell v. Dooley Bros., Inc., 286 F.2d 40 (1st Cir. 1960); Nunn's Battery & Elec. Co. v. Wirtz, 335 F.2d 599 (5t......