Duke v. Birchfield

• Decision Date: 27 June 1963
• Docket Number: Civ. No. 5122.
• Citation: 222 F. Supp. 258
• Parties: Charles DUKE, W. C. Tucker, and Almon Blankenship, Plaintiffs, v. H. A. BIRCHFIELD, d/b/a H. A. Birchfield and Sons, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

222 F. Supp. 258

Charles DUKE, W. C. Tucker, and Almon Blankenship, Plaintiffs, v. H. A. BIRCHFIELD, d/b/a H. A. Birchfield and Sons, Defendant.

Civ. No. 5122.

United States District Court E. D. Oklahoma.

June 27, 1963.

Joseph O. Minter, Madill, Okl., James E. Grigsby, Oklahoma City, Okl., for plaintiffs.

Thomas E. Shaw, Madill, Okl., for defendant.

DAUGHERTY, District Judge.

This is an action brought by plaintiffs, former employees of the defendant, for an alleged violation of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Specifically, plaintiffs claim a violation of 29 U.S.C.A. § 207 pertaining to compensation for overtime worked in excess of forty hours per workweek. The applicable section of the Fair Labor Standards Act dealing with overtime compensation is 29 U.S.C.A. § 207. Section 207 (a) provides in substance that no employer shall employ any of his employees "who is engaged in commerce or in the production of goods for commerce" for a workweek longer than forty hours unless such employee receives wages equivalent to time and one-half for all hours over forty. The defendant disputes the amount of hours claimed worked by the plaintiffs but admits that each plaintiff worked in excess of forty hours each week employed and that each was not paid one and one-half times the regular rate of pay for each hour worked in excess of forty per week as provided by 29 U.S.C.A. § 207. Essentially the defendant disputes the applicability of the Fair Labor Standards Act, hereinafter referred to as the Act, to the employment of the plaintiffs. The determination of this primary issue will, as reflected later in this opinion, make determination of other controverted issues of fact and law unnecessary.

Plaintiffs allege the applicability of the Act based upon the premise that each of them while in the employ of the defendant was engaged in commerce and the production of goods for commerce. The defendant denies his business is such that he is engaged in commerce or the production of goods for commerce or that any of the plaintiffs in performance of their respective duties was engaged in commerce or the production of goods for commerce.

From the evidence introduced by all the parties in the trial of the case to the Court without a jury and based upon the applicable law the Court finds that the plaintiffs were not engaged in commerce or the production of goods for commerce as defined by the Act and therefore the provisions of the Fair Labor Standards Act may not be enforced against the defendant in this action.

The defendant owns and operates a marina on the shores of Lake Texoma at a place called Catfish Bay. The buildings comprising the marina plus the boat stalls for storage and docking are situated so as to float upon the lake and are anchored to the shore by walkway ramps. The operation of the defendant's business includes retail sales of fishing supplies, tackle, etc., the rental of pleasure boats and small motors for use thereon, the storage of pleasure boats, and the furnishing for hire of craft for pleasure cruises within a limited area near the marina. For a short period of time the defendant also rented power skiis to vacationers. All supplies and goods used by the marina are delivered to the dock via land. From a practical viewpoint, and in actuality, all of the defendant's business activities are conducted upon the waters of Lake Texoma. No business activities are conducted across a state line, though no restriction is placed upon the renters of the pleasure boats as to where the boats may be taken. It is 12 to 15 nautical miles to the side of the lake where the reservoir area abutts the State of Texas.

The plaintiff's duties were coextensive with the business activities of the defendant's business operation. They made sales of fishing supplies to fishermen, made sales of gasoline and oil, rented boats and motors, rented and tended the rental boat stalls, and repaired and cleaned the boats rented and stored at the marina. On occasion the services of the plaintiffs were used as drivers on a boat cruise for vacationers, though as a general rule the defendant or his son handled this chore personally. In short, the duties and activities of the plaintiffs were in essence so closely similar as in legal contemplation to be identical and were of such a nature and variety as would be coextensive with the operation of a sport marina located in a state park area designed for sportsmen and vacationers.

There is no evidence herein to indicate a movement of goods, products or service between the States of Oklahoma and Texas which border the reservoir area. Nor does the evidence show that the defendant contemplated any aspect of his business to reach out to or into the State of Texas. There was testimony as to one charter boat trip to the "Texas side" of the lake, however, this trip was an unauthorized one and such activity was not within the prescribed authorized duty of the plaintiff, Albert Blankenship, nor the duties of the other plaintiffs. All other such charter boat trips provided by the defendant and carried out by his employees were in an area in close proximity to the Cat Fish Bay area and in no instance did they touch upon the land or waters of the State of Texas.

The plaintiffs assert that they are engaged in commerce when they rented boats and performed these other duties because in such performance they placed in movement goods and services from the State of Oklahoma to a place outside thereof, that is the Federal territory of the waters of Lake Texoma. Thus, they state that the crossing of the State-Federal boundary in their daily duties places them within the statutory definition of commerce. 29 U.S.C.A. § 203. Likewise, plaintiffs assert that the cleaning up and repairing of the pleasure boats stored and rented at the marina is such work upon and preparation of goods in interstate commerce so as to place them within the statutory definition of engaged in the production of goods for commerce.

Under the Act, the phrases "engaged in commerce" and "production of goods for commerce" are not synonymous and were deliberately chosen to delineate different fields of coverage. Rucker v. First National Bank of Miami, Okl., 10 Cir., 138 F.2d 699, certiorari denied 321 U.S. 769, 64 S.Ct. 524, 88 L.Ed. 1065.

As defined by the Act, 29 U.S.C.A. § 203(b), "commerce" means trade, commerce, transportation, transmission or communication among the several states or between any state and any place outside thereof.

Subsection (i) of Section 203 defines goods as meaning goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer or possessor thereof.

Commerce, as defined by Congress for the purposes of the Act, is a broad term and the engagement in any one of the activities which are included within the statutory definition of commerce is sufficient to subject an employer to regulation under the Act. Walling v. Rockton and Rion R. R., D.C., 54 F.Supp. 342, affirmed 4 Cir., 146 F.2d 111, certiorari denied 324 U.S. 880, 65 S.Ct. 1026, 89 L.Ed. 1431.

Commerce in its simplest signification means an exchange of goods, but in the advancement of society, labor, transportation and various means of exchange become commodities and enter into commerce. In such case, the subject, the vehicle, the agent and the various operations become the objects of commercial regulation. Lenroot v. Western Union Telegraph Co., 52 F.Supp. 142, affirmed 2 Cir., 141 F.2d 400, reversed on other grounds 323 U.S. 490, 65 S.Ct. 335, 89 L.Ed. 414.

Congress did not, in the enactment of the Act, intend to exert the full measure of its commerce power but instead to leave local business to the protection of the state wherein it was located, thus requiring the observation of limitation that the courts are not free to absorb by judicial process essentially local activities which Congress in the exercise of its judgment did not see fit expressly or by fair implication to bring within the scope of the Act. E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, certiorari denied 328 U.S. 858, 66 S.Ct. 1351, 90 L.Ed. 1629; 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, 161 A.L.R. 1263; Walling v. Amidon, 10 Cir., 153 F.2d 159; Rucker v. First National Bank of Miami, Oklahoma, ibid.; Ouendag v. Gibson, D.C., 49 F.Supp. 379; In re New York Title and Mortgage Co., 179 Misc. 789, 39 N.Y.S.2d 893; Fountain v. St. Joseph Water Co., 352 Mo. 817, 180 S.W.2d 28.

In determining what constitutes commerce or engaged in commerce within the meaning of the Fair Labor Standards Act, the Court should be guided by practical considerations. Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656. See also, Walling v. Mutual Wholesale Food and Supply Co., 8 Cir., 141 F.2d 331; Tobin v. Allstate Cost. Co., D.C., 95 F.Supp. 585, affirmed 3 Cir., 195 F.2d 577; Walling v. Paramount Richards Theaters, D.C., 61 F. Supp. 290; Abram v. San Joaquin Cotton Oil Co., D.C., 49 F.Supp. 393; Barbe v. Cummins Const. Co., 49 F.Supp. 168, affirmed 3 Cir., 138 F.2d 667.

An employee to be engaged in commerce within the Act must be actually engaged in the movement of commerce or the service which he performs must be so closely related to it as to be for all practical purposes a part of it. E. C. Schroeder Co. v. Clifton, ibid.

The applicability of the Act to any particular business depends upon the special facts pertaining to such business. To be sure the Act is remedial in nature and has a humanitarian purpose in view, thus to effectuate the desired result it should be liberally construed. McComb v. Farmers Reservoir and Irrigation Co., 10 Cir., 167 F.2d 911, affirmed ...