District of Columbia v. Schwerman Trucking Co.

• Decision Date: 31 October 1974
• Docket Number: No. 6412.,No. 6502.,6412.,6502.
• Citation: 327 A.2d 818
• Parties: DISTRICT OF COLUMBIA et al., Appellants, v. SCHWERMAN TRUCKING COMPANY, Appellee. DISTRICT OF COLUMBIA et al., Appellants, v. DIENER'S LINOLEUM AND TILE CO., INC., Appellee.
• Court: D.C. Court of Appeals

327 A.2d 818

DISTRICT OF COLUMBIA et al., Appellants, v. SCHWERMAN TRUCKING COMPANY, Appellee.

DISTRICT OF COLUMBIA et al., Appellants, v. DIENER'S LINOLEUM AND TILE CO., INC., Appellee.

No. 6412.

No. 6502.

District of Columbia Court of Appeals.

Argued September 11, 1972.

Decided October 31, 1974.

Rehearing en Banc Denied February 7, 1975.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the briefs, for appellants in No. 6412 and No. 6502.

John J. McAleese, Jr., Philadelphia, Pa., pro hac vice, of the Bar of the State of Pennsylvania, and Clyde E. Herring, Washington, D. C., for appellee in No. 6412.

Edward J. Dempsey, Washington, D. C., for appellee in No. 6502.

Before REILLY, Chief Judge, and FICKLING and YEAGLEY, Associate Judges.

REILLY, Chief Judge:

The questions presented by these appeals are whether the overtime provisions¹ of the Minimum Wage Act, D.C.Code 1973, § 36-401 et seq., (herein "the Act") have any applicability (1) to persons who report for work in the District of Columbia, but whose employment assignments are performed partly within and partly outside the District, or (2) to persons, irrespective of place of employment, if their maximum hours of service are subject to regulation by the Secretary of Transportation. More precisely, the first question is whether a District employer in computing hours worked in any given week must include in such total any hours spent in his employment by a particular employee beyond the District line. In these cases the government, as assignee in trust² for designated employees claiming unpaid overtime under the Act³ brought actions against their respective employers for overtime wages allegedly due them.⁴

The parties entered into stipulations from which it appears that the claimants in both cases reported for work in the District but as part of their normal duties, either loaded or drove trucks which regularly left this jurisdiction, thus requiring the drivers or the helpers who rode the trucks to spend part of their work day or work week in the contiguous states of Virginia and Maryland. In each case the parties filed cross motions for summary judgment in the respective trial court. On the authority of our decision in Williams v. W. M. A. Transit Company, D.C.App., 268 A. 2d 261 (1970), the employers' motions were granted and the actions dismissed.⁵ The government thereafter noted appeals and we consolidated the cases for argument and disposition because of common legal issues presented.

In the Williams case the issue was whether drivers of commuting buses who started their routes in nearby Maryland but spent an average of 37.6% of their trip time in picking up and delivering passengers inside the District, were covered

by the 40-hour work week and overtime provisions of the Act. After examining the legislative history of the Act, this court concluded in an opinion written by Chief Judge Hood that ". . . Congress was not exercising its full plenary powers over the District of Columbia but was acting only as any State legislature would in passing a minimum wage law." 268 A.2d at 263, footnote omitted. Accordingly, the court held that the plaintiffs in that case were not entitled to recover, as it was not the intent of Congress to cover such employees under the Act.

Because of the breadth of that holding the correctness of the trial court's disposition of these cases, insofar as they dealt with employees on work assignments performed outside the District, would be beyond challenge except for an intervening decision of the United States Court of Appeals for the District of Columbia Circuit. That court, prior to the effective date of the Judicial Reorganization Act,⁶ granted plaintiff's application for leave to appeal in the Williams case. Then, some two years later and subsequent to the judgments in these cases the court, in an opinion written by Judge Leventhal, reversed our holding. Williams v. W. M. A. Transit Company, 153 U.S.App.D.C. 183, 472 F.2d 1258 (1972). The circuit court conceded that this court was "correct insofar as its approach sought some territorial limitation on the definition of employer and employee." Id. at 189, 472 F.2d at 1264. It went on to hold nevertheless that the Act covers any employee who regularly spends more than 50% of his work time in the District, whether or not his employment is based in the District, and any employee whose employment is based in the District and who spends a substantial amount of his work time there, but does not regularly spend more than 50% of his work time in any particular state or the District.

This opinion has created an anomalous situation. Not published for more than a year after the effective date of the Judicial Reorganization Act and at a time when the author of the opinion conceded that this court had final authority to interpret a District of Columbia enactment, the opinion does not constitute controlling precedent for this court, although binding on the parties to the litigation.⁷ M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971). Nevertheless, because of the extensive analysis of the authorities made by Judge Leventhal in reaching his conclusion, and because of intervening legislative developments in Congress cited by the litigants in the cases now before us as supporting their opposing views, we have deemed it appropriate to reexamine the basis of our Williams decision and to deal with an issue which we did not reach in that case, viz., the asserted exclusion from the overtime provisions of the D.C. Minimum Wage Act of employees subject to hours of service regulations under the Federal Motor Carrier Act. 49 U.S.C. § 304. Having rejected this court's view that the Minimum Wage Act covered only persons employed full time within the District, the circuit court was compelled to come to grips with this issue. It decided that because the local Act, unlike the federal Fair Labor Standards Act,⁸ does not contain such an exemption, Congressional intent to exclude motor carrier personnel could not be inferred.

In the case before us, both employers assert (and the government apparently concedes) that the claimants fall within that class of employees with respect to whom the Secretary of Transportation ". . . has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935." 49 U.S.C. § 304. As such, they are exempt from the overtime provisions of the Fair Labor Standards Act by reason of the express provisions of § 13(b) of that statute. 29 U.S.C. § 213(b)(1). Although the corresponding provision of the local act, D.C.Code 1973, § 36-404, does not contain this particular exemption, the employers urge us to hold that Congress intended the same exemption in the local Act, notwithstanding the contrary views of the circuit court in Williams, supra.

The record makes it clear that the employer in No. 6412, Schwerman Trucking, has standing to raise this issue, for the stipulation of the parties shows that this appellee is a common carrier of bulk commodities holding certificates as such under the Motor Carrier Act. Its local operation consists of transporting building materials from the Lone Star Cement terminal on the Potomac waterfront to construction sites in the District, Maryland, and Virginia. The stipulation in No. 6502 does not expressly say that Diener's Linoleum is subject to regulation under the Motor Carrier Act. The employees involved load and operate delivery trucks of their own company, as distinguished from vehicles of contract or common carriers.⁹ Their duties include the laying of tile and other flooring in the residences of customers in the metropolitan area, including houses situated beyond the District line. In view of the fact that the briefs of the government make no differentiation between the businesses of the two employers, we shall treat both cases alike in considering the Motor Carrier Act issue.

In doing so, we note that if this exemption is implicit in the local wage act, it would exclude from the overtime provisions a much broader class of employees than those who spend a portion of their work week in assignments outside the District. A pickup from or delivery to a railhead, a waterfront dock, or a truck terminal where shipments in interstate carriage are interlined, brings such cartage within the ambit of Section 204 of the Motor Carrier Act even though all such trips can be completed inside the District and assignments to such trips amount to less than four percent of any driver's working time. Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947). Nor would the exemption be limited to ambulatory personnel like drivers, for the statutory reach of the Department of Transportation extends to loaders, mechanics, checkers, and certain clerical personnel concerned with safety of operations, even though their duties are performed entirely within the four walls of the building containing the garage, loading platforms, or warehouse, as the case might be. Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158 (1947).

The revised D.C. Minimum Wage Act, D.C.Code 1973, § 36-401 et seq., which — inter alia — amended the prior act to require premium pay for hours worked in excess of 40 in any week, became law on February 1, 1967. About two years later, the Corporation Counsel ruled in a written opinion that the motor carrier exemption to the corresponding provisions of the federal act did not apply to the local act. This ruling soon became a matter of controversy in Congress. In 1969, the then chairman of the House Committee on the District of Columbia introduced a bill, H. R. 15360, to amend the D.C. Minimum Wage Act by specific language exempting motor carrier personnel whose hours of service were subject to interstate commerce regulation.

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