Dunlop v. Dr. Pepper-Pepsi Cola Bottling Co. of Dyersburg, Tennessee, Inc.

• Decision Date: 12 February 1976
• Docket Number: PEPPER--PEPSI,No. 75--1579,75--1579
• Citation: 529 F.2d 298
• Parties: 22 Wage & Hour Cas. (BN 683, 78 Lab.Cas. P 33,334 John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. DR.COLA BOTTLING CO. OF DYERSBURG, TENNESSEE, NIC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 298

529 F.2d 298

22 Wage & Hour Cas. (BN 683, 78 Lab.Cas. P 33,334

John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. DR. PEPPER--PEPSI COLA BOTTLING CO. OF DYERSBURG, TENNESSEE NIC., Defendant-Appellee.

No. 75--1579.

United States Court of Appeals Sixth Circuit.

Argued Dec. 12, 1975.

Decided Feb. 12, 1976.

Marvin M. Tincher, U.S. Dept. of Labor, Nashville, Tenn., Donald S. Shire, Jacob I. Karro, U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant.

Joseph K. Willcox, Memphis, Tenn., for defendant-appellee.

Before WEICK, McCREE and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

The Secretary of Labor (Secretary) appeals from a judgment of the district court denying relief under the Fair Labor Standards Act (the Act) with respect to helpers on soft drink delivery trucks. The judgment was based on the district court's holding that helpers are not employees of the defendant bottling company within the meaning of the Act. The court found that defendant had violated the Act with respect to a number of employees in various classifications and granted appropriate relief. The company has not appealed.

In his Memorandum Decision Chief Judge Bailey Brown upon 'examination of the whole activity' made a number of findings of fact concerning use of helpers by the route salesmen employed by defendant. Our study of the record and transcript of hearing convinces us that these findings are based on substantial, though conflicting, evidence and are not clearly erroneous. Rule 52(a), Fed.R.Civ.P. The parties stipulated in a pretrial order that if the helpers are employees of defendant, various violations of the Act did occur during the period covered by the complaint. Therefore, our task is to determine whether the district court properly concluded that the helpers are not employees of defendant within the meaning of the Act.

It was stipulated that the route salesmen (truck drivers) are employees of defendant. The district court found that some of the eleven salesmen use no helpers, some use them occasionally and others, frequently. Each salesman is paid on a straight commission basis and helpers are always paid by the salesman who hires them. The defendant does not adjust the compensation of the salesmen in any way to provide pay for helpers. The defendant has forbidden helpers from doing any work on the premises of its plant, though some of them are picked up and dropped off by the salesmen near the plant. Some salesmen use their wives and children as helpers. Many different helpers have been used by some of the salesmen. Often they were picked up in the morning without any pre-arrangement. Though defendant is aware of the use of helpers and discouraged the practice, salesmen were never forbidden to use them. The district court specifically found that the use of helpers does not affect defendant's sales, but only reduces the time required for salesmen who use them to cover their routes and that there was no indication that the salesmen could not complete their days' work without the assistance of helpers.

There was evidence that the defendant had caused its workmen's compensation insurance carrier to make a $16.00 payment to a helper who was hurt while working on one of its trucks. However, this helper had formerly been an employee of the defendant and the court found that there was 'confusion' concerning the reason for this payment.

Though the District Judge noted that the work of the helpers is not performed on defendant's premises, this was not considered conclusive. Nor was the fact that defendant neither hires nor fires helpers, and does not set their wage rates or hours of work, treated as decisive. Instead, the court stressed that it looked at the 'whole activity' and 'the situation in its entirety' in reaching the conclusion that the helpers who assist its route salesmen are not employees of defendant.

The Act defines 'employ' in the broadest possible terms--'to suffer or permit to work.' 29 U.S.C. § 203(g). Nevertheless in numerous instances the courts have found it necessary to decide on a case-by-case basis whether or not a particular relationship was that of employer and employee. The language of the Act precludes making the decision solely on the basis of whether the traditional attributes of master and servant are present. Walling v. American Needlecrafts, Inc., 139 F.2d 60, 63 (6th Cir. 1943). In Rutherford Food Corp. v. McCumb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947), after considering a number of facts presented by that case, some of which indicated an employer/employee relationship under traditional criteria, the Court stated:

We think, however, that the determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity.

In Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961), the Court followed the 'economic reality' test first enunciated in Rutherford, supra, and considered many circumstances including the pervasive control exercised by the employer over the work of those sought to be treated as employees.

Circuit court cases which are factually similar to the present one, in which persons assisting route salesmen on delivery trucks were held not to be employees are Walling v. Sanders, 136 F.2d 78 (6th Cir. 1943), and Wirtz v. Dr. Pepper Bottling Co. of Atlanta, 374 F.2d 5 (5th Cir. 1967). The Secretary argues that Walling v. Sanders was 'effectively overruled' by the Supreme Court decision in Rutherford. Nevertheless, after the Rutherford decision had been rendered, this court took pains to distinguish Walling v. Sanders in its decision in Western Union Telegraph Co. v. McComb, 165 F.2d 65 (6th Cir. 1947), cert. denied, 333 U.S. 862, 68 S.Ct. 743, 92 L.Ed. 1141 (1948), in which Rutherford was cited for the proposition that the operation as a whole must be considered in determining whether a person is an employee.

In a similar vein the Secretary urges us to treat Wirtz v. Dr. Pepper as an anomaly, pointing out that the Fifth Circuit reached a different result in Hodgson v. R.C. Bottling Co., Inc., 465 F.2d 473 (1972). The facts in that case are quite different from those in Wirtz v. Dr. Pepper and the present case. In Hodgson v. R.C. Bottling the drivers were paid an extra amount to cover the wages of helpers, the helpers regularly went to the bottling plant on Saturdays to clean the trucks and waited on customers while there, the defendant's bookkeeper calculated the wages of the helpers and furnished the drivers with pay envelopes for the helpers and the helpers were carried on the company's payroll records along with its admitted employees. Furthermore, the helpers loaded and unloaded trucks at the bottling plant under the general supervision of the plant superintendent and at least one helper had been fired by the president of the defendant bottling company. None of these factors indicating an employer-employee relationship was found to be present in Wirtz v. Dr. Pepper or the present case.

Not relying entirely on the result in Hodgson v. R.C. Bottling, the Secretary contends that the Fifth Circuit now applies a different test from that used in Wirtz v. Dr. Pepper and that court would reach a different result on the same facts if the case were decided today. He argues that the 'economic reality' test is concerned only with whether the worker is dependent on the purported employer for his living. This position is based largely on the opinion in Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975). In that case a former employee who was permitted to operate cardrooms on the premises of an apartment house-hotel exclusively for tenants, their guests and customers of a restaurant on the premises was claimed to be an independent contractor rather than an employee of the hotel. This had been Mednick's regular, full-time occupation for at least three years when the suit was filed and he had several employees of his own who worked when he was off. In determining that Mednick was an employee rather than an independent contractor the court quoted from Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947 (1947), as follows:

(I)n the application of social legislation employees are those who as a matter of econimic reality are dependent upon the business to which they render service.

It appears to us that Mednick, supra, presented an ideal factual picture for application of the Bartels test and we would see no inconsistency with the decided cases of this circuit in so applying it. However, the record before us is quite different. For all that is shown the sporadic work of helpers on defendant's trucks was not necessarily the primary, much less the sole occupation of any of the workers in question. Approximately one-half of the helpers identified in the transcript were close relatives of the route salesmen for whom they worked. As to the non-related helpers, there was no showing at all of actual dependence upon defendant. Their work was intermittent and unscheduled. Some drivers never used helpers and others used them frequently. One driver estimated that he had used 80 or 90 different helpers in a period of 2 1/2 to 3 years. Though the non-related helpers may be the kind of persons who are 'dependent upon finding employment in the business of others . . .,' Mednick, supra at 301 quoting from Fahs v. Tree-Gold Co-op Growers of Florida, Inc., 166 F.2d 40, 44 (5th Cir. 1948), there is no showing in the record that they were in fact dependent on defendant. Actually, the relationship of Mednick to the hotel was more like that of the drivers, who are admittedly employees of the defendant in the present case, than that of the helpers.

We do not read Mednick to hold that economic dependence on the purported employer is the sole test for determining the existence of an...