Rural Fire Protection Company v. Hepp, No. 20461.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES, DUNIWAY and ELY, Circuit
Citation366 F.2d 355
PartiesRURAL FIRE PROTECTION COMPANY, a corporation, Appellant, v. William E. HEPP et al., Appellees.
Docket NumberNo. 20461.
Decision Date16 September 1966

366 F.2d 355 (1966)

RURAL FIRE PROTECTION COMPANY, a corporation, Appellant,
v.
William E. HEPP et al., Appellees.

No. 20461.

United States Court of Appeals Ninth Circuit.

September 16, 1966.


366 F.2d 356

John B. Marron, Phoenix, Ariz., for appellant.

Champe Raftery, Phoenix, Ariz., for appellees.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal from a final decision of the United States District Court for the District of Arizona. The district court had jurisdiction pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1337. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

Defendant-appellant is an Arizona corporation engaged in furnishing private fire department type fire protection to municipal, industrial, commercial and residential customers who subscribe to and pay for the protection offered by appellant. Appellant had 9,443 accounts at the time of trial, some of whom were either directly engaged in interstate commerce or in producing goods for interstate commerce.

All of the plaintiffs-appellees involved in this case were university students employed by appellant to serve as firemen. All worked under an employment arrangement in which they were hired as "sleepers," i. e., they resided permanently at the Scottsdale fire station operated by appellant and were required to be present for duty every alternate weekday from 4:30 P.M. to 8:00 A.M. and every Sunday for a twenty-four hour shift. During alternate-day 4:30 to 8:00 shifts of duty, the men were permitted eight hours of sleep, unless a fire interfered. The monetary compensation for this employment specifically provided in the employment agreement was $3 for each 4:30 to 8:00 shift, unless a fire occurred during the shift. If a fire occurred, the men received no extra compensation for the first hour of fire fighting but were paid an additional $1 per hour for each additional hour of time spent actually fighting fires. For the twenty-four hour Sunday shift the men were paid $15.44. All of the "sleepers" lived permanently at the Scottsdale

366 F.2d 357
station even when not on duty, and were provided with a stove, refrigerator, beds, a small amount of furniture and storage space. On alternate weekdays when the men were not on duty it was understood that they could be placed on duty if a fire occurred, and would be paid overtime for such extra duty. When on duty and not engaged in either fighting fires or sleeping the allotted amount, the men performed such other functions as cleaning the premises, painting, pouring cement, landscaping, and making first aid calls. There appears to be no disagreement regarding the practice of the appellees to swap on-duty time and to substitute for one another when it was more convenient for the men to do so

On June 16, 1961, appellees filed their complaint alleging that they were entitled to the coverage of the Fair Labor Standards Act (hereinafter "the Act") and that the wages they had received were below the minimums provided by that Act. During the period in suit the minimum wage guaranteed by the Act for those entitled to its coverage was $1 per hour for regular time and $1.50 per hour for overtime over 40 hours per week.

During the course of the trial the district court dismissed the cause of plaintiff Harold E. Camp on the ground that Camp, Chief of the Scottsdale station, was an executive of the defendant and not entitled to the coverage of the Act. No appeal is taken from that dismissal. On June 25, 1964, the district court judge handed down a memorandum decision (C.T. pp. 12-16) in which he stated that he did not feel that the services of the plaintiffs were the kind of employment which should be regulated by the Act, but nevertheless found that the plaintiffs fit within the literal terms of the Act. The district court held that the plaintiffs were entitled to recover the amounts that they had been underpaid and were entitled to attorney's fees as provided in the Act, but were not entitled to liquidated damages as provided by the Act on the ground that the defendant had acted in good faith throughout. Formal findings of fact, conclusions of law and judgment were filed June 25, 1965, and this appeal by the employer followed.

I. Do the Appellees Fit Within the Coverage of the Fair Labor Standards Act?

The answer to this question poses two problems: first, a legal problem as to whether or not the type of work done by appellees fits within the coverage of the Act, and second an evidentiary problem as to whether or not appellees have shown a sufficient participation in interstate commerce to meet the requirements of the Act.

At this late date it is clear beyond serious dispute that the Fair Labor Standards Act of 1938 covers the employment of such workers as firemen who have only the most incidental connection with interstate commerce, providing there exists adequate proof of their connection with interstate commerce.

29 U.S.C. §§ 206, 207, the minimum wage and maximum hour provisions of the Act under which this suit was brought, apply to employees "engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 203(j), a definitional section of the Act, enlarges the meaning of the terms used in §§ 206, 207, by providing that

"* * * for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State." (Emphasis added.)

In interpreting the predecessor of the "directly essential" language of § 203(j), which predecessor used the term "necessary to the production" of goods for commerce, the Supreme Court held in Armour & Co. v. Wantock, 323 U.S. 126, 129, 65 S.Ct. 165, 89 L.Ed. 118 (1944) that § 203 (j) was not to be given a restricted meaning and that firemen engaged by facilities used for the manufacture of goods

366 F.2d 358
for interstate commerce were employed in an occupation "necessary to the production" of goods for commerce. In the earlier case of Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942) the Supreme Court had given § 203(j) a liberal interpretation in holding that firemen, watchmen, porters, and carpenters employed by the owners of buildings whose tenants were engaged in the production of goods for interstate commerce were engaged in "occupations necessary to the production" of goods in interstate commerce. A case from this circuit is even more directly analogous to the situation here. Although recognizing that the 1949 amendment to the Fair Labor Standards Act which changed the language of § 203(j) from "necessary to the production" to "directly essential to the production" of goods for commerce was intended to narrow the coverage of the Act, this court held in General Electric Co. v. Porter, 208 F.2d 805 (9th Cir. 1954) that privately employed community firemen whose duties included the protection of a small number of buildings whose occupants were the executives and administrators of a plant engaged in production of goods for commerce were engaged in occupations closely related and directly essential to production of goods for commerce

In light of the authority above cited it seems an established legal proposition that the firemen in this case were engaged in an occupation within the coverage of § 203(j) if they proved that the fire protection which they were hired to provide was used to protect establishments engaged in the production of goods for interstate commerce. The district court found that a substantial number of appellant's customers were engaged in such production, that the contracts for fire protection with those customers were at substantial compensation to the appellant, and that the fire protection thus afforded to the customers was directly essential to the activities of such customers in the production of goods for interstate commerce.

We have reviewed the findings of the district court, the evidence supporting those findings, and the law concerning the allegations of error made by appellant on this phase of the case, and cannot agree that error was committed.

Of the total number of accounts which appellant had, only 277 were non-residential. Among these non-residential accounts were such significant customers shown to be engaged in production of goods for interstate commerce or...

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67 practice notes
  • De Malherbe v. Intern. U. of Elevator Constructors, No. C-76-1668-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 12, 1978
    ...15(c), the basic issue is the adequacy of the notice to the defendant given by the original pleading. Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 362 (9 Cir. 1966); Rosenberg v. Martin, 478 F.2d 520, 526 (2 Cir. 1973); Goodman v. Poland, 395 F.Supp. 660, 684 (D.Md.1975); Pendrell v. Ch......
  • O'Donnell v. Vencor Inc., No. 05-15687.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 10, 2006
    ...who commits willful violation under EPA liable for back pay for up to three years before suit is filed); Rural Fire Prot. Co. v. Hepp, 366 F.2d 355, 361-62 (9th Cir.1966) (finding that cause of action accrued at end of each pay period when minimum and maximum wage provisions of 29 U.S.C. §§......
  • Dunlop v. State of Rhode Island, Civ. A. No. 74-24.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • August 4, 1975
    ...4 This fact was stipulated by the defense at the conclusion of the trial. 5 Cf. Rural Fire Protection Company v. Hepp (9th Cir. 1966), 366 F.2d 355. 6 Cf. 29 U.S.C. Sec. 216(b), supra, and the language therein describing the type of case for which the written consent of all plaintiffs is...
  • Salvas v. Wal-Mart Stores, Inc., No. SJC-10108.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 23, 2008
    ...Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (Anderson), Rural Fire Protection Co. v. Hepp, 366 F.2d 355 (9th Cir.1966) (Rural Fire), and Secretary of Labor v. DeSisto, 929 F.2d 789 (1st Cir.1991) 62. The judge stated: "The plaintiffs' class liabili......
  • Request a trial to view additional results
67 cases
  • De Malherbe v. Intern. U. of Elevator Constructors, No. C-76-1668-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 12, 1978
    ...15(c), the basic issue is the adequacy of the notice to the defendant given by the original pleading. Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 362 (9 Cir. 1966); Rosenberg v. Martin, 478 F.2d 520, 526 (2 Cir. 1973); Goodman v. Poland, 395 F.Supp. 660, 684 (D.Md.1975); Pendrell v. Ch......
  • O'Donnell v. Vencor Inc., No. 05-15687.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 10, 2006
    ...who commits willful violation under EPA liable for back pay for up to three years before suit is filed); Rural Fire Prot. Co. v. Hepp, 366 F.2d 355, 361-62 (9th Cir.1966) (finding that cause of action accrued at end of each pay period when minimum and maximum wage provisions of 29 U.S.C. §§......
  • Dunlop v. State of Rhode Island, Civ. A. No. 74-24.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • August 4, 1975
    ...4 This fact was stipulated by the defense at the conclusion of the trial. 5 Cf. Rural Fire Protection Company v. Hepp (9th Cir. 1966), 366 F.2d 355. 6 Cf. 29 U.S.C. Sec. 216(b), supra, and the language therein describing the type of case for which the written consent of all plaintiffs is...
  • Salvas v. Wal-Mart Stores, Inc., No. SJC-10108.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 23, 2008
    ...Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (Anderson), Rural Fire Protection Co. v. Hepp, 366 F.2d 355 (9th Cir.1966) (Rural Fire), and Secretary of Labor v. DeSisto, 929 F.2d 789 (1st Cir.1991) 62. The judge stated: "The plaintiffs' class liabili......
  • Request a trial to view additional results

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