Brennan v. Deel Motors, Inc., No. 72-2192.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGEWIN, SIMPSON and RONEY, Circuit
Citation475 F.2d 1095
Docket NumberNo. 72-2192.
Decision Date27 March 1973
PartiesPeter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. DEEL MOTORS, INC., d/b/a Deel Ford, and R. L. Nunn, Individually, Defendants-Appellees.

475 F.2d 1095 (1973)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant,
v.
DEEL MOTORS, INC., d/b/a Deel Ford, and R. L. Nunn, Individually, Defendants-Appellees.

No. 72-2192.

United States Court of Appeals, Fifth Circuit.

March 27, 1973.


475 F.2d 1096

Richard F. Schubert, Solicitor of Labor, Donald S. Shire, Carin Ann Clauss, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Solicitor, Edwin G. Salyers, Atty., Dept. of Labor, Atlanta, Ga., Sylvia Ellison, U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellant.

Donald B. Harden, Charles Kelso, Atlanta, Ga., for defendants-appellees.

Before GEWIN, SIMPSON and RONEY, Circuit Judges.

GEWIN, Circuit Judge:

In this action, the Secretary of Labor appeals from the judgment of the district court dismissing his claim for injunctive relief under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1971), against the appellees, Deel Motors, Inc. and its vice president, Robert L. Nunn. The basis for the claimed relief is the alleged failure of the appellees to pay overtime wages as required by the Act to certain of their employees. This is a test case and there appear to be no controlling precedents except cases dealing with the rules of statutory construction. After a careful examination of the facts and the legal arguments presented, we find that the lower court properly disposed of this case and therefore affirm.

The pertinent facts are undisputed and may be summarized with brevity. Appellee, Deel Motors, Inc., a Florida corporation, is a franchised automobile dealership engaged in selling new and used cars, automobile parts, and mechanical services. Appellee, Nunn, is a company vice president, responsible for implementing the company pay plans for its various employees.

Part of Deel's staff consists of four employees variously titled as "service writers", "service advisors", or "service salesmen." These service salesmen work directly with customers co-ordinating the sale of numerous goods, services, and mechanical skills provided by the appellees. The service salesmen diagnose each customer's problem with his automobile and then refer the car to an appropriate department within appellees' business operation for needed repairs or additional equipment desired. They monitor the work while in progress, keeping track of the parts or additions used, and then determine whether a satisfactory job has been done.

When the Secretary's investigation of Deel began, these salesmen were compensated by a weekly wage and a percentage commission on each service order written. Additionally, commissions termed "spiffs" were given service salesmen who sell certain products and services being promoted by the appellee Deel. Presently, pending outcome of this litigation, the salesmen are being paid on a straight commission basis plus "spiffs."

The Secretary contends that these employees fall within § 7 of the Act, 29 U.S.C. § 207 (1971), and are therefore entitled to overtime premium pay. However, the real dispute presented by this appeal is whether the general overtime premium pay requirements of § 7 are made inapplicable to the present fact situation by the exemption found in § 13(b)(10), 29 U.S.C. § 213(b)(10) of the F.L.S.A. This exemption from the general overtime premium pay provisions applies to:

any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles . . . if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to the ultimate purchasers.1
475 F.2d 1097

We feel that the best interpretation of this section calls for the inclusion of these service salesmen within the scope of this exemption.

The Secretary contends that the overtime exemption is limited to salesmen of the vehicles, while appellees counter that such language encompasses all salesmen employed by an automobile dealership. Both parties have presented lengthy arguments as to the Congressional intent in the enactment of § 13(b)(10) leading to contradictory conclusions.2 We feel that appellees have presented the better reasoned interpretation of the section and that a common sense interpretation and application of this exemption mandates inclusion of service salesmen within its scope.

First, there is no dispute of the fact that these four salesmen are "employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to the ultimate purchasers," as required by the last clause of § 13(b)(10). Second, these service salesmen are functionally similar to the...

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22 practice notes
  • Encino Motorcars, LLC v. Navarro, No. 15–415.
    • United States
    • U.S. Supreme Court
    • June 20, 2016
    ...the repair and maintenance work when customers return for their vehicles. See App. 40–41; see also Brennan v. Deel Motors, Inc., 475 F.2d 1095, 1096 (C.A.5 1973) ; 29 CFR § 779.372(c)(4) (1971). Partsmen obtain the vehicle parts needed to perform repair and maintenance and provide those par......
  • Encino Motorcars, LLC v. Navarro, No. 16–1362.
    • United States
    • United States Supreme Court
    • April 2, 2018
    ...5896 (1970) (codified at 29 C.F.R. § 779.372(c)(4) (1971) ), the federal courts rejected that view, see Brennan v. Deel Motors, Inc., 475 F.2d 1095 (C.A.5 1973) ; Brennan v. North Bros. Ford, Inc., 76 CCH LC ¶ 33, 247 (E.D.Mich.1975), aff'd sub nom. Dunlop v. North Bros. Ford, Inc., 529 F.2......
  • Viart v. Bull Motors, Inc., No. 99-1961-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • June 28, 2001
    ...and therefore are more concerned with their total work product than with the hours performed. Page 1351 Brennan v. Deel Motors, Inc., 475 F.2d 1095, 1097 (5th Cir.1973). Likewise, get ready mechanics such as Mr. Viart, functioning within this unit, are paid on a commission basis, and are th......
  • Walton v. Greenbrier Ford, Inc., No. 02-2432.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 28, 2004
    ...within the exemption.2 In holding that Walton fit the exemption, the district court primarily relied on Brennan v. Deel Motors, Inc., 475 F.2d 1095 (5th Cir.1973), the only circuit court authority on point. In Deel, the Fifth Circuit held that employees designated as "service writers," "ser......
  • Request a trial to view additional results
21 cases
  • Encino Motorcars, LLC v. Navarro, No. 15–415.
    • United States
    • U.S. Supreme Court
    • June 20, 2016
    ...the repair and maintenance work when customers return for their vehicles. See App. 40–41; see also Brennan v. Deel Motors, Inc., 475 F.2d 1095, 1096 (C.A.5 1973) ; 29 CFR § 779.372(c)(4) (1971). Partsmen obtain the vehicle parts needed to perform repair and maintenance and provide those par......
  • Encino Motorcars, LLC v. Navarro, No. 16–1362.
    • United States
    • United States Supreme Court
    • April 2, 2018
    ...5896 (1970) (codified at 29 C.F.R. § 779.372(c)(4) (1971) ), the federal courts rejected that view, see Brennan v. Deel Motors, Inc., 475 F.2d 1095 (C.A.5 1973) ; Brennan v. North Bros. Ford, Inc., 76 CCH LC ¶ 33, 247 (E.D.Mich.1975), aff'd sub nom. Dunlop v. North Bros. Ford, Inc., 529 F.2......
  • Viart v. Bull Motors, Inc., No. 99-1961-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • June 28, 2001
    ...and therefore are more concerned with their total work product than with the hours performed. Page 1351 Brennan v. Deel Motors, Inc., 475 F.2d 1095, 1097 (5th Cir.1973). Likewise, get ready mechanics such as Mr. Viart, functioning within this unit, are paid on a commission basis, and are th......
  • Walton v. Greenbrier Ford, Inc., No. 02-2432.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 28, 2004
    ...within the exemption.2 In holding that Walton fit the exemption, the district court primarily relied on Brennan v. Deel Motors, Inc., 475 F.2d 1095 (5th Cir.1973), the only circuit court authority on point. In Deel, the Fifth Circuit held that employees designated as "service writers," "ser......
  • Request a trial to view additional results

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