Marshall v. Victoria Transp. Co., Inc., s. 77-2263

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before WISDOM, HILL and VANCE; VANCE
• Citation: 603 F.2d 1122
• Parties: 24 Wage & Hour Cas. (BN 373, 87 Lab.Cas. P 33,842 CA 79-3454 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. VICTORIA TRANSPORTATION COMPANY, INC. and Doro Besteiro, Defendants-Appellees. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. BROWNSVILLE TRANSPORTATION COMPANY, INC. and Jose Colunga, Defendants- Appellees.
• Docket Number: 77-2274,Nos. 77-2263,s. 77-2263
• Decision Date: 04 October 1979

Page 1122

603 F.2d 1122 24 Wage & Hour Cas. (BN 373, 87 Lab.Cas. P 33,842 CA 79-3454 F. Ray MARSHALL, Secretary of Labor, United
States Department of Labor, Plaintiff-Appellant,
v.
VICTORIA TRANSPORTATION COMPANY, INC. and Doro Besteiro,
Defendants-Appellees.
F. Ray MARSHALL, Secretary of Labor, United States
Department of Labor, Plaintiff-Appellant,
v.
BROWNSVILLE TRANSPORTATION COMPANY, INC. and Jose Colunga,
Defendants- Appellees. Nos. 77-2263, 77-2274. United States Court of Appeals,
Fifth Circuit. Oct. 4, 1979.

Page 1123

Carin A. Clauss, Sol. of Labor, Kerry L. Adams, Atty., U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant in Nos. 77-2263, 77-2274.

Homero M. Lopez, Brownsville, Tex., for defendants-appellees in Nos. 77-2263, 77-2274.

Appeals from the United States District Court for the Southern District of Texas.

Before WISDOM, HILL and VANCE, Circuit Judges:

VANCE, Circuit Judge:

Defendants operate two city bus lines, each of which serves portions of Brownsville, Texas. Plaintiff sued defendants charging that they employed workers in commerce, as defined by the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219, at rates of pay less than the minimum wage required by the Act, 29 U.S.C. § 206. Plaintiff further charged that defendants violated the overtime provisions of the Act, 29 U.S.C. § 207, by failing to compensate their employees for employment in excess of forty hours per week at rates not less than one and one-half times the rate at which they were employed.

As used in the Act, " 'Commerce' means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). Brownsville is separated from the Republic of Mexico by the Rio Grande River. The "commerce" alleged in this case is the transportation of persons travelling between Brownsville, Texas, and Mexico.

The district court granted summary judgments for defendants holding that their employees were not employed in commerce and that the employees therefore were not within the coverage of the Act. In reviewing a summary judgment we must view all evidence and the inferences to be drawn from the evidence in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970). Before we examine the facts, however, we must consider the controlling principles of law.

Coverage depends on the special circumstances of the particular business involved. Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460 (1943). The Supreme Court has recognized that the Act's purpose " ' . . . was to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce.' And in determining what constitutes 'commerce' or 'engaged in commerce' we are guided by practical considerations." Overstreet v. North Shore Corp., 318 U.S. 125, 128, 63 S.Ct. 494, 496, 87 L.Ed. 656 (1943) (quoting Walling v. Jacksonville Paper Co., 317 U.S. at 567, 63 S.Ct. 332). This court is committed to giving the Act a broad, liberal construction. Brennan v. Wilson Building, Inc., 478 F.2d 1090 (5th

Page 1124

Cir.), Cert. denied, 414 U.S. 855, 94 S.Ct. 156, 38 L.Ed.2d 105 (1973); Hayden v. Bowen, 404 F.2d 682 (5th Cir. 1968), Cert. denied, 395 U.S. 933, 89 S.Ct. 1995, 23 L.Ed.2d 448 (1969). No De minimis rule applies to the Act; any regular contact with commerce, no matter how small, will result in coverage. Mabee v. White Plains Publishing Co., Inc., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); Schultz v. Kip's Big Boy, Inc., 431 F.2d 530 (5th Cir. 1970); Mitchell v. Independent Ice & Cold Storage Co., 294 F.2d 186 (5th Cir. 1961), Cert. denied, 368 U.S. 952, 82 S.Ct. 394, 7 L.Ed.2d 386 (1962). We must determine whether the work of defendants' employees is actually in commerce or is so closely related to the movement of commerce that it is for practical purposes a part of it rather than an isolated local activity. Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196 (1955).

Both defendants maintain downtown terminals a short distance from the International Bridge that crosses the Rio Grande. ¹ Defendant Brownsville Transportation operates five regular fare paying routes in the western part of the city. Defendant Victoria operates four regular fare paying routes in the eastern part. Under contractual arrangements with merchants and...