Duffy v. Oele
Decision Date | 28 September 1967 |
Docket Number | Civ. A. No. 5472. |
Citation | 274 F. Supp. 307 |
Parties | Parker DUFFY, Gregory Alkema, and Robert Cross, Plaintiffs, v. Joseph S. OELE, dba Oele Rental Service, and Oele Ambulance Service, Inc., Defendants. |
Court | U.S. District Court — Western District of Michigan |
Warner, Norcross & Judd, Grand Rapids, Mich., Thomas J. McNamara, Grand Rapids, Mich., of counsel, for plaintiffs.
Varnum, Riddering, Wierengo & Christenson, Grand Rapids, Mich., Carl E. VerBeek, Grand Rapids, Mich., of counsel, for defendants.
OPINION ON MOTION TO DISMISS
In an action for unpaid minimum wages, over-time compensation, liquidated damages, and attorney fees under the Fair Labor Standards Act, 29 U.S. C.A. § 201 et seq., defendants have made a motion to dismiss on the ground that they are exempt from the provisions of the Act.
Defendant Joseph Oele was the sole proprietor of Oele Rental Service, which was subsequently succeeded in interest by Oele Ambulance Service, Inc.
Plaintiffs were employed by defendants as ambulance drivers. Their work involved transporting sick and injured persons between their residences and hospitals, and responding to emergency calls to pick up dead and injured victims of automobile accidents on public streets and highways. All of the relevant facts in this case occurred before the 1966 amendment of the Fair Labor Standards Act effective February 1, 1967.
Defendants advance three different theories as reasons for exempting them from the provisions of the Act. First, defendants contend that their business was and is a retail or service business; second, they claim that Section 213(a) (12), exempting "any employee of an employer engaged in the business of operating taxi cabs" is applicable to them; and third; defendants maintain that they are not engaged in commerce or in the production of goods for commerce.
We will discuss the issues raised by the defendants in the order set forth above.
Section 213(a) (2) of 29 U.S.C.A. provides in part:
In order for a retail or service establishment to qualify under the exemption set forth above, defendants must establish that there is a concept of retail selling or servicing within the ambulance industry.
This was spelled out in 29 C.F.R. Section 779.3161 and confirmed by the United States Supreme Court in Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966), where Justice Harlan said at 383 U.S. 202, 203, 86 S.Ct. 745:
(Emphasis supplied.)
Defendants assert by affidavit that the (Affidavit of Melvin Huttenga, an owner of Oele Ambulance Service, Inc.)
In Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), the Supreme Court held that a small loan company did not qualify as a retail or service establishment, regardless of the class of persons with which it dealt and regardless of whether the financial industry thought a small loan company engaged in retail financing. Justice Harlan observed:
359 U.S. at 295, 296, 79 S.Ct. at 759. (Emphasis supplied.)
ruled In reaching this decision, the Administrator noted that Congress also recognized this distinction by including special provisions exempting transportation employees. For example, see Sections 13(a) (9) and 13(b) (7), local transit employees, and Section 13(a) (12).
Interpretive bulletins and rulings of the Administrator of the Wage and Hour Division of the Department of Labor are not binding on the courts. They are entitled, however, to careful consideration. In Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the court said:
"We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." 323 U.S. at 140, 65 S.Ct. at 164. (Emphasis supplied.)
The reasoning of the Wage and Hour Administrator in the above opinion letter is persuasive and, accordingly we hold that ambulance service is not a retail or service establishment.
As a second ground for dismissal, defendants contend that the services performed by ambulances are closely analogous to the services taxi cabs provide, and that therefore, under Section 213(a) (12) defendants are exempt.
In Wirtz v. Cincinnati, Newport & Covington Transp. Co., 375 F.2d 513 (C.A. 6, 1967), the Sixth Circuit Court of Appeals held that four-passenger sedans called "Red Tops," which operate from the Cincinnati airport, were not taxi cabs as defined by Section 213(a) (12). The court in its opinion quoted from the findings of the district court which said: "Exemptions under the Act are to be narrowly construed and defendants have the burden of proving that their employees are exempt from the provisions of Sections 6 and 7 by reason of Section 13(a) (12)." 375 F.2d at 515.
Although, as Holmes said, a word is the skin of a thought and may vary in color and text in accordance with the circumstances, when Congress passed Section 213(a) (12), we believe that despite whatever attributes a taxi and an ambulance have in common, it did not intend to exempt employees engaged in operating ambulances.
Finally, as a third basis for dismissal, defendants state they are not engaged in commerce, or in the production of goods for commerce.2
In Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460 (1943), the court said:
"It is clear that the purpose of the Act was to extend Federal control in this field throughout the farthest reaches of the channels of interstate commerce." 317 U.S. at 567, 63 S.Ct. at 335.
In interpreting and defining the nature of commerce as used in the Act, the courts have held employees who cut and mow grass along U. S. and state highways (Wirtz...
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