Mitchell v. Telephone Answering Service, Inc.

• Decision Date: 22 October 1959
• Docket Number: Civ. No. 331-57.
• Citation: Mitchell v. Telephone Answering Service, Inc., 183 F.Supp. 607 (D. P.R. 1959)
• Parties: James P. MITCHELL, Secretary of the United States Department of Labor, Plaintiff v. TELEPHONE ANSWERING SERVICE, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

183 F. Supp. 607

James P. MITCHELL, Secretary of the United States Department of Labor, Plaintiff v. TELEPHONE ANSWERING SERVICE, INC., Defendant.

Civ. No. 331-57.

United States District Court D. Puerto Rico.

October 22, 1959.

Kenneth P. Montgomery and Jose E. Bosch-Roque, San Juan, P. R., and Stuart Rothman, Sol., and John J. Babe, Asst. Sol. of Labor, Washington, D. C., for plaintiff.

Robert E. Schneider, Jr., (Cordova & Gonzalez) San Juan, P. R., for defendant.

DELEHANT, District Judge (Retired, serving by assignment).

Invoking the jurisdiction of this court under Title 29 U.S.C.A. § 217, plaintiff in his official capacity, seeks in this action to obtain a judgment or decree permanently enjoining and restraining the defendant, its agents, servants, employees and attorneys, and all persons acting or claiming to act in its behalf and interest from violating the provisions of section 15(a) (2) of the Fair Labor Standards Act of 1938, as amended (Title 29 U.S. C.A. § 201 et seq., especially section 215 (a) (2). See also Title 29 U.S.C.A. §§ 206 and 207).

Its complaint contains, and is based upon, allegations that defendant, a Puerto Rico corporation, is and at all material times was, engaged at a designated place of business in Santurce, Puerto Rico, in rendering continuous telephone answering service to its subscribers; in which it employs approximately five employees as operators engaged in receiving, relaying and handling for its subscribers telephone communications in interstate commerce; that in such operations it repeatedly has been and is violating the provisions of Title 29 U.S.C. §§ 206 and 215(a) (2) by paying wages at less than the minimum rates prescribed by such Act, and the designated pertinent wage order issued thereunder, and of Title 29 U.S.C. §§ 207 and 215(a) (2) by employing certain of its employees in interstate commerce for weeks longer than forty hours without compensating such employees for such weekly employment in excess of forty hours at rates not less than one and one-half times the regular hourly rates at which they were employed.¹

By way of answer, defendant denies that it has at any time violated any of the cited sections of the statute; denies the jurisdiction of the court under Title 29 U.S.C. § 217; denies each and all allegations of the complaint charging it with any such violation; and denies that it, or any of its employees is or are, or has or have been, engaged or employed in interstate commerce; and affirmatively alleges that "the switchboard operators now or at any time heretofore employed by it in connection with its business are expressly exempted from the provisions of the Act." It may be observed that in that final defensive averment it does not specify the section or sections, or language, of the statute upon which it relies for its exemption.

Ordinarily, the court, in an announcement of this character, would reflect the averments of the pleadings in detail and with particularity greater than the foregoing. But in the present instance such particularity appears to be quite unnecessary and would probably constitute mere ostentation. Counsel for the parties have, by successive stipulations, agreed in writing upon the elemental facts touching the corporate and industrial character of the defendant, the nature, manner and extent of its business operations, and its relationship to, and the number of, its employees, including the duties and manner of working of those of its employees who are within the classification of "switchboard operators." The court proceeds now to the exact reflection of those stipulations. Let it be understood that, in such reflection, and because counsel have carefully selected the language of the several stipulations, the court adopts and finds to be true each fact set out in each such stipulation. Both such stipulations were made and entered into in anticipation of trial on the merits of the action, and with a view to the elimination of unnecessary proof therein.

Omitting caption and signature, the earlier stipulation, executed and filed on May 20, 1958, is in the following language:

"Stipulation

"For the purpose of the trial of this case, plaintiff and defendant, through their respective attorneys, hereby stipulate that the following facts are true and may be received by the Court in evidence, subject, however, to the right of either party to introduce further and additional evidence, but not in contradiction of any fact herein stipulated.

"I

"The plaintiff herein is the Secretary of the United States Department of Labor and brings this action for injunction pursuant to authority conferred upon him by the Fair Labor Standards Act of 1930, as amended.

"II

"The defendant, Telephone Answering Service, Inc., is a corporation organized and existing by virtue of the laws of the Commonwealth of Puerto Rico. It has its place of business at 1057 Ponce de Leon Avenue, Santurce, Puerto Rico, where it is engaged in rendering continuous telephone answering service to less than 250 subscribers.

"III

"The defendant, Telephone Answering Service, Inc., employs five switchboard operators and a janitor in its place of business in Santurce, Puerto Rico.

"IV

"The services rendered by the defendant, Telephone Answering Service, Inc., consist of answering any telephone calls to and receiving, telephone messages or communications for its subscribers during time specified by the subscriber. By arrangement, which defendant has made with the Porto Rico Telephone Company, an extension from the subscribers telephone is connected to one of the two switchboards operated by defendant. Any call to the subscribers telephone during the specified hours is answered by an operator employed by defendant for the subscriber, who takes any message the caller wishes to leave, gives the caller whatever information the subscriber has instructed defendant to give, and later reports all calls and messages to the subscriber.

"V

"The defendant, Telephone Answering Service, Inc., renders its services to approximately one hundred and four (104) subscribers. Among the subscribers served are three (3) airlines, namely: Delta Airlines, Caribbean Atlantic Airlines, and Iberia Spanish Airlines. Each airline provides flights and services between Puerto Rico and places outside of Puerto Rico. For each of these the following services are performed: At the close of each day's operation, the airline's office furnishes the defendant flight numbers, destination of flights, time of departures and arrivals and number of seats available for the next day's flights. When calls are thereafter received by Telephone Answering Service, the switchboard operators give information to the callers on such matters as flight schedules, flight numbers, destination of flights, time of departure and arrivals and number of seats available for the next day's flights on behalf of the airline. The operators give information to individual inquirers and to travel bureaus. All information received by the operators is later reported to the airlines. The defendant's switchboard operators thus enable the three airlines to provide continuous telephone answering service to the public outside the normal work day.

"VI

"The defendant, Telephone Answering Service, Inc., renders service to commission merchants, manufacturers' representative, wholesalers, insurance companies and law and accounting firms. The services rendered such firms in certain cases also includes the receiving of overseas cables the contents of which are read over the telephone by the cable companies and include also calls from airlines, steamship companies, and trucking firms regarding incoming or outgoing merchandise. Attached to this stipulation as Exhibit A are representative samples of messages delivered by defendant to its subscribers.

"VII

"Defendant's operators also answer the subscribers' telephones in the case of calls originating from points outside Puerto Rico. The switchboard operators do not talk directly to, take messages from, or give information to persons placing calls from overseas. In the case of station to station calls defendant's operators may talk with the exchange operators where the calls originate but never with the overseas callers. Later the fact that overseas calls are pending is reported to the subscribers.

"In the representative month of August 1957, defendant's operators answered a total of 14 such cases of calls which originated from outside Puerto Rico. This represents 0.32% of all calls answered in August 1957. Exhibit B which is attached to this stipulation and is a part hereof indicates what these calls were and what reports thereon were made to subscribers.

"VIII

"An analysis of the business of the defendant for the month of August 1957, which may be described as a typical month of operation, showed that a total of 4,437 calls to the different subscribers were answered by the defendant's switchboards. A breakdown of said total disclosed that defendant's operators answered 136 calls to the airlines, 1,081 to commission merchants, manufacturers representatives and wholesalers; 117 to insurance companies, agents and adjusters; 239 to certified public accountants. The remaining 3,103 calls were to miscellaneous subscribers including lawyers, doctors, dentists, government agencies, engineers and publicity agencies.

"IX

"The employees employed by the defendant as switchboard operators at the time of the filing of the complaint in this action were paid at rates which ranged from 65 cents to 92 cents an hour. As of the date of this stipulation they are paid from 85 cents to 92 cents an hour. Employees of defendant sometimes work in excess of 40 hours in a week and for the hours in excess of 40 they are compensated at one and one-half times the hourly rates paid them for the first 40 hours.

"Exhibit A

"The following are samples of messages received by the defendant and delivered to some of its subscribers:

"(1) On August 1,

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