Jackson v. Airways Parking Company

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Citation297 F. Supp. 1366
Docket NumberCiv. A. No. 11413.
PartiesW. B. JACKSON v. AIRWAYS PARKING COMPANY, a Georgia corporation.
Decision Date07 March 1969



Preston L. Holland, Hapeville, Ga., George & George, Forest Park, Ga., for plaintiff.

Arnall, Golden & Gregory (Cleburne E. Gregory, Jr.), Atlanta, Ga., for defendant.


EDENFIELD, District Judge.

This case comes to the court on a motion for summary judgment by the defendant, Airways Parking Company, and a countermotion for partial summary judgment by the plaintiff, Jackson, under the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C. § 201 et seq.

Plaintiff was employed by defendant from January 15, 1965 until February 2, 1967 as a parking attendant at defendant's lot. Defendant's lots are near or adjacent to the Atlanta Municipal Airport and are used by airline passengers who leave their cars there before plane flights, many of which are interstate.

The defendant operates the parking lot under an agreement of January 27, 1961 with the City of Atlanta for ten years under a percentage rental arrangement in which defendant was to pay the City a certain percentage of gross revenue in excess of a minimum rental. Four lots were used, three of which, designated "A", "B" and "C", were for general customer use, and the fourth of which, lot "E", was used for employees of the airport. Lots A and B were combined and were in front of the terminal building, while lot C was further from the main terminal and cheaper. Lot E was created by fencing off a portion of lot C and their respective capacities were occasionally changed by moving the fence separating the two lots. The employees who used lot E worked for more than 25 different employers who were located at the airport. Charges were made, according to defendant's undisputed contention, on a reduced monthly basis between the individual employees and defendant. No employers were involved. The defendant was required by the City to provide, on demand, 70 parking spaces for employees of the Federal Aviation Agency. The FAA, however, never requested any space. The City of Atlanta furnished 3400 free spaces to airline employees in another area not covered by the agreement between the City and defendant.

Plaintiff was a cashier at various exits in lots A and B where he collected fares from departing parkers. On several occasions—defendant states on three or four occasions for two or three days at a time—plaintiff also manned the booth at the employee lot, lot E.

Before working for defendant, plaintiff was employed for several months, beginning in October, 1964, with Airways Service, Incorporated, which had the same shareholders, officers, and management as the defendant. Under an August 18, 1960 agreement with the City of Atlanta, Airways Service operated a public valet parking service at the airport, also under a percentage rental arrangement. Customers drive their own cars to the entrance of the airport terminal building where they leave them and are given a ticket by the attendant, who then calls for a driver to place the car in a covered storage area. When customers want their cars, they present a ticket and pay the parking charges to the cashier in the booth. Among other things, plaintiff ticketed cars left with the valet service and wrote down the make of the car and tag number.

Neither defendant, Airways Parking, nor Airways Service, had any express contracts with the airlines and all of their business was done in the State of Georgia.

During his employment with the defendant, plaintiff asserts that he was not paid the minimum wage nor correctly compensated for overtime, within 29 U.S.C. §§ 206, 207. Plaintiff filed his initial complaint on December 8, 1967, for compensation during the period of his employment in accordance with the Fair Labor Standards Act, and also asked for an additional equal amount of liquidated damages plus attorney's fees, interest, and costs. On November 26, 1968, plaintiff filed an amended complaint in which he alleged that his failure to receive the minimum wage under the Fair Labor Standards Act was due to a wilful violation of the Act by the defendant.


Plaintiff contends that he was "engaged in commerce" within the meaning of 29 U.S.C. §§ 206, 207, and was therefore subject to the benefits of coverage under the Fair Labor Standards Act (hereinafter referred to as the Act). He reasons that by virtue of his activities at the airport parking lot, he was a link in the stream of commerce. Defendant, on the other hand, argues that plaintiff's activities cannot be considered an engagement in commerce under the commonly understood requirements developed by the courts and the Administrator of the Act.

Before embarking on a discussion of this issue in the instant case, certain principles must be understood. First, an employee claiming the benefits of the wage and hour provisions of the Act on the ground of his engagement in commerce has the burden of proof on this point. In our case, plaintiff must sustain this burden by a preponderance of the evidence. Annot., 87 L.Ed. 87 (1943); Annot., 99 L.Ed. 1202 (1955); Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83 (1942). Second, an employee's engagement in commerce depends upon the nature of the employee's activities rather than the character of his employer's business. Annot., 87 L.Ed. 87, 89 (1943), and cases cited therein. Therefore, if his employees are found to be engaged in commerce, the employer cannot avoid his obligations under the Act on the ground that he is not "engaged in commerce". To the extent that his employees are engaged in commerce, so too is the employer. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460 (1943). However, while the employee's activities are crucial, the "relationship of an employer's business to commerce or to the production of goods for commerce may sometimes be an important indication of the character of the employee's work." 29 C.F.R. 776.2, and cases cited therein. However, the Act and the courts make no distinction as to the percentage, volume, or amount of activities of either the employee or employer which constitute engagement in commerce.

Third, the "commerce" in which plaintiff contends he is engaged is defined in § 203(b) of the Act to mean:

"* * * Trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof."

The term "commerce" is broadly defined and not limited to commercial transactions, trade, or commerce in goods. As the administrative regulations to the Act note,

"The inclusion of the term `commerce' in the definition of the same term as used in the act implies that no special or limited meaning is intended; rather, that the scope of the term for purposes of the act is at least as broad as it would be under concepts of `commerce' established without reference to this definition." 29 C.F.R. 776.8.

However, it is abundantly clear that Congress did not intend coverage under the Act to extend to the full extent permissible under the Commerce Clause to the United States Constitution. Regulation of hours and wages does not extend to the farthest reaches of federal authority. McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943); 29 C.F.R. 776.1. It is not enough, given this stricture, that plaintiff in this case demonstrate that his employment activities merely "affect" commerce. 29 C.F.R. 776.9; McLeod, supra; Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656 (1943). The actual test employed by the courts in determining whether an employee, such as the plaintiff here, is engaged in commerce has been variously stated. For example, some courts hold that the employee's activities must be in commerce itself, not just closely related to commerce, Wirtz v. B. B. Saxon Co., 365 F.2d 457 (5th Cir., 1966), while others note that the employee's activities must be an integral step in the interstate movement, Mateo v. Auto Rental Co., Ltd., 240 F.2d 831 (9th Cir., 1957). The test most frequently enunciated is that the employee's activities must be so closely related to interstate commerce as to be in practice and in legal relation a part of it. McLeod, supra; Overstreet, supra; Telephone Answering Service v. Goldberg, 290 F.2d 529 (1st Cir. 1961); 29 C.F.R. 776.9, and cases cited therein; Annot., 99 L.Ed. 1202 (1955). Yet, despite the fact that Congress did not exert its full constitutional authority in the Act, by requiring employees to be "engaged in commerce" rather than merely affecting commerce, the authorities are clear that this is "no reason for narrowly circumscribing the phrase `engaged in commerce.'" Overstreet, supra, 318 U.S. at 128, 63 S.Ct. at 496. As the Supreme Court put it:

"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." Walling v. Jacksonville Paper Co., supra, 317 U.S. at 567, 63 S.Ct. at 335, 83 Cong.Rec., 75th Cong., 3d Sess., Pt. 8, p. 9170.

These principles have proven more difficult in their application than in their simple restatement, however. The Administrator of the Act has gathered a number of cases together which have either included employees in coverage or denied them coverage. See, e. g., 29 C.F.R. 776.11. Counsel for both parties have cited most of the important cases in the area. Thus, courts have found the following employee activities to be outside the ambit of "engaged in commerce" and thus not covered under the Act: custodians and janitors, those providing sewage services, rodent control, base housing, and record keeping, all at an airbase. Wirtz v. B. B. Saxon Co., supra; a cook employed by a...

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