Kelly v. Ballard
Decision Date | 24 April 1969 |
Docket Number | Civ. No. 67-39-S. |
Court | U.S. District Court — Southern District of California |
Parties | David M. KELLY; Ross M. Campbell and Jerome A. Gunsalus, Plaintiffs, v. O. Stephen BALLARD, individually and dba Bay Cities Ambulance; Miller's Ambulance Service of San Diego, Inc. and Bay Cities Ambulance Service, Inc., Defendants. |
COPYRIGHT MATERIAL OMITTED
Anthony W. Bright, Escondido, Cal., for plaintiffs.
Donald J. Helmer, Sheela, Lightner, Hughes, Hilmen & Castro, San Diego, Cal., for defendants.
This is an action to recover unpaid minimum and overtime wages as provided in the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Jurisdiction is conferred by 28 U.S.C. § 1337 and 29 U.S.C. § 216(b). The parties have stipulated as to the material facts, and have submitted the case upon oral argument and briefs as to the questions of law involved. Thus, in effect, the case is now before the court for summary judgment.
The parties by written stipulation agreed upon the material facts as follows:
The questions of law to be decided are: (1) whether the plaintiffs were "engaged in commerce" within the meaning of the Act, §§ 206 and 207 of Title 29 U.S.C., and, if so, whether defendant is exempt under the provisions of § 213(a) (2); (2) whether, if the Act applies to the activities of the plaintiffs, any compensation due should include payment for mealtimes and sleep time on a twenty-four hour basis; and (3) whether liquidated damages should be granted to plaintiffs pursuant to 29 U.S.C. § 216(b).
There is no pat formula by which to ascertain whether sections 206 and 207 of the Act apply to employees' activities. It is well established that the scope of the Act is not coextensive with the limits of the power of Congress over commerce. Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959). In the final analysis, each case must stand or fall on its own particular facts. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1941). The activities of the employees, and not the business of the employer, are to be considered under the pre-1966 provisions of the Act applicable here. Mitchell v. Lublin, McGaughy & Assoc., supra. The Court in the Lublin, McGaughy & Assoc. case enunciated a practical test to determine whether employees are "engaged in commerce":
"The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than an isolated, local activity." 358 U.S. at 212, 79 S.Ct. at 264.
The Ninth Circuit, in Mateo v. Auto Rental Company, 240 F.2d 831 (9th Cir. 1957), restated the test and elaborated some specific factors to be examined:
240 F.2d at page 833.
There is very little direct authority on the applicability of the Act to ambulance drivers. However, the Western District of Michigan has recently issued a well-reasoned decision in a case quite similar to the instant case, Duffy v. Oele, 274 F.Supp. 307 (W.D.Mich.1967), holding that the Act applies to ambulance drivers. In Duffy, as well as here, the plaintiffs were employed to answer emergency calls to pick up dead and injured accident victims on public streets and highways. The court in Duffy not only cited analogous precedent involving other kinds of highway maintenance employment wherein the Act was applied (see cases cited therein), but relied especially upon the rulings of the Wage and Hour Administrator which are normally given substantial weight. In particular, Duffy quoted Opinion Letter No. 424, January 12, 1966, C.C.H. Labor Law Reporter, Wages-Hours, Administrative Rulings, Paragraph 30, 996.55, in part as follows:
274 F.Supp. at 311.
A conflicting case has come out of a Washington State Superior Court, Klemp v....
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