Petition for Writ of Certiorari — Louisiana Trailer Sales, Inc. v. Hodgson

Supreme Court brief1970

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SEARGE Po SCHULTZ. Secostary of Labor.

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aye ~~. ° OR WR RIT OF CERTIOR XRT TO.THE .

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- OPINION BELOW aS ee Media teht ee Veetg we

_ JURISDICTION Pte ars Jobs Wee ice een 1:

QUESTIONS PRESENTED |. ee tee |

STATUTE INVOLVED... ~ re eee 2

STATEMENT’ OF. Pans rinse dai Aiawe OR oane te

INTRODUCTION. oe ee 5

‘WHERE THE MEANING IS CLEAR... =

_ THE ORIGIN OF ERROR AND THE HYPHEN

SIATUS. + eens cece, gié

CONCL USION et, Pree ea ae ra 20

PROOF ‘OF SERVI¢E ~ Ree. thee ore oa ae:

“APPENDK Reet eee i AM ee

APPENDIX B_. ee fs Aer devo es

APPENDIN G05 NB fe “S37

Wer _ TABLE OF AUTHO Gens |

Cases: Pe é a ;

Allesandro Vv. CF. Smith-Company, 13 F.2d 7

Pa ee Se 8 Oe flit ts eh bee Pave 8

1&dden ‘v: Collector, 72. U.S. 107, 1866 | ees oa

| per v. Walsh, 104 U.S! 694, 1881 eo a

United’ States v. Shrev eport Grain. and; Ele- fora

bi anecseciadonenglgnr

Caming}ti v. United States; 342 US. 470, 1916". 12

-- Snell \ Quality Home Brokers, Inc., 4 CA. :

1970, No. 13613, April 6, i970 OPERAS: Phys 15°

Shapifo +. United States, 335 U.S, 1, 66 te

417

2 1375 ase Peete neice. Berner oe ie

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AUTHORITIES (Continued) © :

ra . a a : Page.

Statutes: j | .

52 Statute 1060.................. eee eS.

30 Statute 830, 29 U.SC. een ree oe 6

Section 13(b) (10), 29 U.S.C. 213(b) (10) 1996 ak.

29 U.S.C. 213(a) Seah oie renee apie Weer oes isan

Other Author ities Cited? :

‘ House Committee on” Education ° and Labor |

hearing, - Minimum Wage- “Hour Amend- .

menty, 1965. .... an en Mery Pins eevee

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SUPREME COURT,OF THE-‘UNITED STATES

ey ‘OCTOBER TERM, 1970

ae 3

. LOUISIANA TRAILER SALES, INC., .

Petitioner,

versus

- GEORGE P. SHULTZ, — of Labor,

United States-Department! of Labor,

ie aes : oo

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES. COURT OF APPEALS

iS oe THE PIPTH CIRCUIT

OPINION BELOW

The ee of the United States Fifth Circuit Couit

ce,”

of Appeals is included herein ds Appendix A. The qpin- ©

ion by the United States:Court of. Appeals, Fifth Circuit, °<

is included heréin as Appendix B. A’ petition. for rehear-

ft ing was denied —. opinion Se rakes Cc.

~~ re ap : - JURISDICTION. -

-The inidiiesesk of the Unised Gia ee of Koouais

- for the Fifth Circuit“w as entered June 22, 1970, No. - |

27,956. The petition for Tehearing was denied ‘July 16,

| pe oe Appendices B.C: iG f

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; . Phe Jurisdiction of this. Cou! is invoked under 28

USC. 1254(1). mse 56 MERE ,

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QUESTION PRESENTED |

| ‘

, As. stated in the dpinine below:

“The sole sesalin ity determination in Ye ‘matter -

involving a’ statutory _interprétation * is Whether the. -

overtime exemption provisions. of - Section ° -13(b), (10) .

of the Fair Labor Standards Act, 29 U.S.C. § 213(b)

(10) (1966), are applicable to five ‘employees of appel-

lee Louisiana Trailer- Sales, Inc., khown .as ‘service-..

men’ and ‘service- mechanics.’ The District Court 'feund ©

the employees to be within the overtime: exemption.

provisions of the Aci.” Cee unas ar

A :

Oa | STATUTE ye. oe

'- Section 13(b) (10). of the Fair Labor Standards elon tas

want aR. 213(b) (10) 1966 exempts:

hag ‘Any salesman, partsman, or ‘mechanic pri;

marily engaged in selling or servicing automo-

biles, trailers, trucks, farm implements or air- .

craft, if employ ed ‘by a nonmanufacturing es-

_tablishment primarily: engaged in the business

“of - selling - such vehicles | to ultimate pur-

‘ chasers.” ri . | ¢ ot a Hf:

re,

STATEMENT OF FACTS

All pertinent pagrieg ear ciaa re

Petitioner is a. ssiatadannitiadis concern engaged 7

ae the sale of new and used trailers. of mobile homes.

All par ties have stipulated that. the word “trailér” a

used. in the Subsection, and herein,. includes “mobile

‘

homes”, “<p ae

The only question is w hether the “ ser

“service- mechanics = emp lov ed by petitipner are -

Cluded from Pair. Labor Standards requirements

the. statutory exera ptjon of* “mechanics”, -The re---.

De @ir

mainder of this panies Y ef Facts is queted from-

the f ‘ifth Circuit Opinion, fsppéendix B: -- 4.

“The. Gut ies.of the servicemen in question. are de;

tailed in ‘the stipulation to include:

. _ é a

o> i

« PA ee ee

‘A. Checking ‘the. interior dnd exterior of mobjlo

hemes and { ‘trailers received from manu! acturer's for

ai ’ def ect ts in wor xman ‘ship or damay es. and repair ae

same. - aa - ae — tare oie.

. ¢ * . .

« x -

Pe oa ‘i : a * ¢ J ‘ e « ; =

‘B.- Checking. servicing, répairi 1g and replacing

-parts if a ppliances, the plumbing. electrical air ‘candi:

tioning, Structural and’ ‘butane: ‘gas -svsteMs in mobjle

hames and trailers both before and. after delivery to.

_.ctstomers. .- *

4 rd 9) yh

; site. , \

‘C. Cais up the ee air conditioning,

electrical, sewer .and gas systems to: water, electric,

gas and sewer lines at the customer's site.

* ss t a

-*D, Deliv ering. mobile homes and trailers from de-

fendant’s Ss establishmeft to the customer's site.

“E. Constructing oierate Slick foundations for in-

stallation of mobile h - ‘and trailers at. customer's

‘ . " .

—F"..- Placing and ser ic ing Thebtle hométs and tr ailers

& jo)

on foundations ate ustomer’ s ‘sites.

‘G. Performing > cafpentry work inside . mobile

homes and trailers, e.g., freeing up or replacing | sod

en doors, door frames, window frames, flooring, pane

ing or partitions.

a. Repairing | anv leaks pecuitn 1g from openings

in the. hulls of ‘mobile homes and f1 ‘ailers, or leaks

in roof during warranty period, to-wit, one vear after

deliverg. oo =

‘TI. Painting the ‘interior and ° exterior of n6bile

homes and trailers eer used tr ailers). |

‘J. Repairing or replacing tile in the bathrooms,

kitchens or showers of mobile homes and trailers.

‘ io / 4 ee f . ‘ a3 Fe iz.

‘K.” Repairing and ‘or replacing exterior’ aluminum

- panels or other portions of mobile homes and trailers

‘

‘es

“or appliances | which may be damaged in transit or:

during installation at the customer's’ site. ‘

1, When circumstances required it, these empfov-

ees checked, serviced or repaired the running*mechan-

isms of the mobile homes and trailers such as wheels,

axles, brakes and signal lights but these functions were

occasional and-did not require any substantial amount

of employee time. -. Ae

, The Secretary contends that the term ‘mechanic’

should. be restricted to employees performing those

Services which are. ordinarily perfor med in the automo- -

tive industry; for example, ‘checking Wheels, axles,

brakes and signal lights, and in. transporting these

homes for delivery. The Secretary. readily admits that

‘the servicemen perform | these functions ‘but argues

that the bulk of ‘their duties ‘consists of cyrverting the

mobile homes into permanent re sidénces and in serv ic-

ing and. maintaining them thereafter ’ and that they

~are not therefore aheclaniee servicing ‘trailers’ “With-

an the intendment of the exemption.” |

~ Men should work reasonable hours for a liying wage.

For one hundred and sixty- two years it: may be as-

sumed that thinking people of the United States -be-

lieved this to be true, but history assures us that they

did not believe that Congress could or should make

it happen. | : <a ge

INTRODUCTION

For it was 1938 befgre Congress with obvious trepida-

tion “and misgiv ings experimented only slightly with

oun free enterprise system of government when they

fitst passed a Kair Labor Standards Act.' Congress

expey imented because the 1938 Act covered only a very

/seleet group of rich employers who were obligated

not too onérously to pay their employ ees’ a minimum

wage oftventy-five cents an hour fora forty -four hour

week: me no oveytime allowances. From ‘that ‘date

qo this the evolution of Fair Labor Standards has been

a’ phicful and deliberate process. It is a. history, of

strife aad compromise between the two most politically

powerful elements in this country.

~ : . .

Because of the areca of ae contestants, the petiod-

ie confWets were widely debated ard publicized. 'Top

{licht comgressional | commitdees écrutinized: -argued,.

debated aid weighed every word, of-each. proposed

fand ment — and there: were thousarids. Labor in,

th. “oth riv-two years has gained many advanfages.

“seat wage hos gro. 1) to S160 ay hour and

ork week has been chertenéd. LO forts: Tou ws.?

Tohor has gained other advantages, as overtime allow-

orecs. and fringe ken ef its. but their victary is far from

rotote. "for tod: tv lecs than fifty per cent of the labor:

“ce is covered by air Labor Standards.

® . . *

Thirty-two vears of Fair Labor Standardsehistory -

ryt aac? amendment to the basic law increased:

52 Stat. 1060. .

280 Stat. 830, 29 USC. 201. a :

. , JV

mabe s <,. ome

: : Pa _@ . a rs . ;

its coverage. Atnendment _after amendment placed

more and more employees under the protection of the’

Act. Traditionally and legally Congress and only Con-

gress éxtended the cover age of this Act to’ additional

workers. Theré. remains no constitutional challenge to

the right of Congress to regulate wages and ‘hours —

but no one, and no Court should have the right to

extend. or limit the Congressional definition of the cov-

erage of Fair. Labor Standards. a ‘

+ % i

It is the attempt of the beeretary of Labor to extend |

the coverage that petitioner here ch allenges. Mor e pare .

ticularly’ petitioner | challenges the Secretary on the

method of, approach, that is ene Courts rather than

‘to the’ Congress..

al nn / ‘ ¢

The array of attorneys. amicus curiae. the ds,

statistics and-documentation herein noted all prealaim

thé truth of a plot with considerably, more implication

that the effort of a benevolent administration to collect

paltry $752. 33 in w ages for fiv e > SUD! posedly oppressed

| .

This is the-battle of “GUIDE LINES". Petitioners

believe that Fair Labor Standards ‘an be set only by

Congress. The Secretary of Labor believes that the

device of administrative interpretation of Feir Stan-

dards can control labor by administ: “ative ediets cam-

_monly. known as “GUIDE LINES”. : :

WHERE THE MEANING IS CLEAR

Once mére petitioner notes that ,the ohly question

of law specifically’ raised is Whether the mee ‘ganic-em- ‘

ployees of petitioner? are covered ‘by the Fel r Labor

Standards, or. are they exempt by the section thereof

that excludes: ;

: ce le eo

“Any. salesman, partsman, or mechanic pre

marily eng: aged in ‘selling or servicing automo-

biles, trailers, trucks, farm implem« ents or agr-

Traft, if emploved: by a nonmanifae tur ing Os-

. tablishment primavily engagéd in the business

of ‘selling: such .vehicles to uldenate -pur-

_Chasers-“s—- “ lk oe,

————9" . —“_—

ae}

Theswritten word is used to communicate the law

of the. Pali — and the meaning ts cleat. No ore’ who

“comprehends the written- word can. say that this law

means some “mechanics” and not other: mechanics.”

As elementary is the-law of judicial imterpretation to

-the- effect that all of the rules are suspended when

_ the meonivg.of the sti atute is clear.

The above is dogma, ahd. not the dégma-of petitioner.

3 It is the, word from.the Supreme Court of this’ land:

The Secretary cammot. be unaware of this any more

than he can be unaware that other federal courts have

specifically made this law applicable to Fair Labor

| Standards, Yes, and even to the very subsection that

= oom is here volved | = Ga oe OE ee ay oe

e . SORIA a eat wai 4 (a

a eam 13(b) (10), 29 U.S.C. 213°(b) (10) 1986.

ad: AAHSSORETS © C. F. Smith ompany, 136 F.2d.75, 1943.

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in excess of, dhe needs and desires of the populace,

Trailer hones became larger ‘und -more sophisticated

in concept. The gypsy image of the trailer dweller

was trinstesmeéd by astute public relations into the

_+-—*Mobue Home" dweller, Then *trailer oe industry

flourished and moe ‘and more Ww orkers were employ ed

in all.of the industrial proc esse thi it are required to

turn raw, mi terial into a product for delivery to the

ultimate customer, 3 | | e

All phases of: this indtisiry were ‘serutinized ‘by the

Secretary. The: production: of the raw material was

from the beginning within the gamit ‘of ‘Fair Labor

Standards. The manufacture of trailers was ahwavs

considered within the jurisdiction of the: Sgeretary and

the Act. The selling funetion ‘with autos had always

been exctuded fram the Fair Labor Standards. The

reasons are abundantly apparent. Without soles there ..

would be no‘industry, and sales and salesmanship is

not a matter that. turns on und - off by the oyeration

ofa tirfe clock. * ‘

ee ar Jay

_ Atrfirst all personnel connected with the vital selling

facet of automotive industry. were. exempt from Fair

Labor restrictions. This included all salés, service and

clerical personnel. 5 Dus as’ automotive business‘ grew

so did credit: finance ing and as a -cohsequence so did

the. clerical forces. Finance and bank persomel be-

c ime ‘indistinguishable and-hence the inevitable — the

clerical forces of the’ franchise dealers were placed

—1

529 U.S.C. 213(a) exempted “Any employee of a retail or service

establishmént which is primarily.engaged in the business of

selling automobiles, trucks or farm implements.”’. . :

~- ab AY

under’ Fair Labor Standards BY AN ACT OF CON-

‘GRESS.®

: : . ; .

. e

.<At the same time Congress designated other indus-"

tries that would be included under the very same law

that they had so carefully evolved. Thus in 1966 Con-

gress: deigned that the trailer industry would ‘be ace,

corded equal] protection of the Fair Labor jaws — the

Fifth Circuit Court of Appeals without intimation, of

: unconstitution: lity has deigned differently.

; f. . es

Petitioner can compr dnend the lessons of history and

envision the day when the servicé forces of the fran- |

chise dealer may be a. significant, segment of the k abor

community {lmost unrelated to te selling facet and.

consequently they. will become fair game for the ‘Sec-

retary — if Congress places tem under thé Act. .

This’ evolutionary process of éxteriding the cov erage

Fair Labor Standards to ever ‘increasing numbers

e workers h: is Satisfied /the. American public, and all

citizens ‘point with pride to the. Status: of, American

ldbor. ;

Then on September 4, 1968, the Secretary of Labor

Japp: rently decided that the evolution of Fair. Labor

Standar ds. by. tegisk itive processes was-too Slow. This

impatience is evident from.the “Guide Line” directive

of thi uf baka which defines the’ term “mechanie’.? It

6Section 13(b) (10), "29 USC. 213(b) (10) 1966. .

7“... the following types of work do not qualify~an employee as a

“Nnocnante? for purposes of Section 13(b) (10) even though

performed on an automobile, trailer, farm implement, or air-

is the aia of Petitioner that it is of no mémené

what_that definition is, {org Congress exempted ° from

Fair Labor Standards. :

ene ““Any salesman, jparitsman, or mechanic pri-

mar ily éngaged in selling or Servicing automo-

a oe biles, trailers, trucks, farm implements or, air-

5a, craft. if emploved by:a nonmanufactyring €s-

_tablishment primarily engaged in the business.

USeTs. ee

selling such vehicles to ‘ultimate pur-

The terr m mechanicis gener ic and, includes all mechan-

v. ics, any ae finitiongdot the term “would: be limiting and

-, the result would be more worker rs would be placed:

»- . on Fair Labor Standards. er *

This September ‘edict of the ‘Secr tary of Labor’ is

justified by’ a brilliant legal, staff"on the dual —

(1) That-Congress did not intend the word ° ‘mechanics

to mean Be mec hanics, and (2) Because of the now

-hybrid' nature “ol Be mobile home industry.

Both premises are entirely haseless, for the legisla-

tive intent is of no consequence “where the meaning:

: of the sti atuye is clean’ 8 But let us sdy the legislative

- fice 3.

¢ °

.- craft: washing; cleaning; lubricating; .. painting; carpentry;

«+ © blocking; checking, servicing, or repairing the plumbing,

) electrical and gas systems, the doors, windows ahd other struc-

ral features of mobile home trailers (as opposed to the running»

echanisms, such as wheels, axles, brakes, hitches, and signal

ts).””

‘8Hadden| v. Collector, 72 US. 107 1866; Merritt v. Walsh, 104 ‘U. s. ;

'694,'1881: United States v, Shreveport Grain and Elevator Com-—

pany, 287 U.S. 77, 1932; Caminetti v. — States, 242 USS.

470, 1916. | :

re | _

intent is needed to casipa out whether or not the word

“mechanics” means “all mechanics” then no better .

source of legislative intent could be found than that

of the persgfi who suppliéd this intent. The authds fot

the.Act, C6éngressman Roman C. Pucinski of Illinois,

| unequivocally states that. the interpretation of the aCe... .

retary is “ALL WET”. In a classic letter to the Depart- ‘

ment’ of Labor the. author -of this bill had ate fair .

"comment on the September edict:

“Mr. Clarence Lundquist

~ Administr ator ,

Wage and Hour and Public |

_.. Contracts Divisions en be ee

U.S. Depax “ment of Labor | }

hiettiin ae B.S.

Dear Clarence: ;

°.

‘ !

Permit me to tell you how bitterly disappoint-

ed I am in your ruling of September 4th re-

gar ding exemption of mechanics and service- ;

men employed by mobile home dealers,

At the time this matter came up-T had con-

‘siderable discussions with you bnd your peoMle

and there can bé no doubt iy ‘your mind and I

wanted to exempt all met¢hanics and servjée-

men employed by mobile home dealers from

the Act. I drew no distinction between one type.

of employee and another. You know this. Your ::

Pgople know this. |

> ee, “As ; |

. You know we intended io exemipt qull Wilh no

exception. It is quite obvious to me-that legis- re

lative intent no longer has any meaning. to

those in the Executiv e Branch. / ;

po fell.y ou that asa result of = experi- ee

ence, when your agency comes before my Com-

; mritee hext time we re. Hilf to spell out ex-

-actly and precisely the law and we will spe-

cific ally bar ans - ouide ‘lines. le had. mv fill of:

*gyidelines written by ‘administrators: who leg-

.Aslate ‘without ever going before the voter.

af ae

“0 If vou-féllows want, to write tie laws, why

| ~ don’t ‘you run for office and when ‘elected’ you

can write’ them. You -pe ople with vour guide-

- - . e

: lines that have #o similar ity. to whi

‘lative intend led giv eer edence to. George Wal-

Kise e's-claim that we now heve government by

guidelines, not by the people’s: representatfve.

=) I suggest that vou take another look at vour

aS letter of September 4 and rewrite those guide-

| lines to comply with legislative intent: Since I

was the author of the amendment, I can assure

you that. your present-determination is a]l wet.

Pan er ; Sincerely yours,

Roman C. Pucinski-

Member Tonge *

®Brief Amicus, Curie, Mobile Housing Association of Ameria,

- Incorporated, at page 89. er. _

The above and foregoi g should ver at rest re all |

time the matter of sie st intent. Petitioner does

*” not believe that it should have been disinterred — bgt

jurisdictional grabs are a characteristic. of cthe tradi-. 3

tional lapor — —— — government, strife.

* i > .

As to the second basis for the dedicat ‘edict, that

is the metamorphosis of) the trate Mechanic into a

Gpnetruction worker because the Secretary Says it is

SO, petitioner needs dono more thun to point to history, |

the houses of Congress. and the most basic of constitu;

tional concepts ; — the separation of power ~~ and be’:

ever grateful that the lawmaking power still resiles ,

‘in | the pe ene es the United States,

“The: irrefutable logic of the bea did not stop the -

Secretary of. Labor from attempting, to get judicial

Sanction of his power grab. Two Court. proceedings: a

“were initiated. '©- At the district level the- Secretary

~ was found to be only half i Court ov ‘érw "helmed

wit) statistical data as to the growing force of workers

unprotected. by Fair Labor Standards, ‘held that ‘ ‘me-

; chanics” meant something: tess than all mechanics.

: Then in this case the district court: refused to be aw a

bythe same ‘material and held that 2 ‘mechanics”

meant all rhechanics. Congress had not-s seen fit to .cate-.

/gorize “amechanics” and the ‘district’ court p roperly.

, aware of its judicial author itv likewise refused to place

some mechanies and rot meners 4inder the Fair Labor

Standards. spans We ; ees

pinay instant case. and Snell v. ew Home Brokers, Incorporat-

- ,ed,4C.A. 1970 #13613, April 6, 1970. :

“The Fifth Circuit Court of Appeals from where this

complaint arises, reversed the district court and said’

‘that: “mechanic” had a “v ehicular’ connotation and

is suggestive of automotive ‘units’.3" So now, at the

circuit level petitioner finds a precedént the equivalent

of.a ‘congressional enac iment which he believes the.

Court had. no. authority to enact..In so doing petitigner

- ° notes other constitutional objection — the equal protec-

tion af. the kaws as to automobile and trailer mechanics.

| THE ORIGIN OF ERROR AND THE HYPHEN HIATUS |

‘Error.may start innocently or delibe: ‘ately ‘and error

“once started by either design or accident mushrooms

in startling proportions. Petitioner: seeks not to alarm.

‘ by hypothetical catastrophes of the possible conse-

quences of the Fifth Circuit opinion, -but simply sug-

~ gests the origin of the error that’ may lead to conse-

“quences of some magnitude. The error petitioner sug-

gests, is not the’ semantics of the word “mechanic”

but, is the failure to consider the word “selling” . Selling

and all of its related facetstis.in law and in logic

suntegulatable ‘by Fair Labor. Standards’ of work hours. |

The law itself has always recognized this; and so did

the Courts —(until this Fifth Circuit Opinion.

G afi ? F: Ps

The Spinal Fair Labor Standards act-excluded from

its coverage all automotive pergonnel engaged in sell-

ing. The automobile selling force was then, and-is now

exempt from the provisions of the act. In 1966 the

_ automotive sales force was again exempted from the

. coverage, of the ‘act? but- this | time the cov erage was

minal

11Appendix B.

spelled. out, The act exempted the salesman, partsman

and mechanic.’Then the v arious lobbies added the trail-

er, the airplane and the farm implements ‘to the very:

same act. This simply meant that the trailer, airplane

and farm industries were to be given the same treat- .

ment as were the auto workers.

The rationale of the exemption of the selling force

was logical when first made, and is legical-today. Un-

less the product is sold there is no industry. Congress

certainly }new that selling is not limited to regular

working hours, or is it accomplished only by sales-

men. “

ee eh

Parenthetically it is here. noted that ‘even though

the Fair Labor Standards Act does not define a sales-

man as one’whoe works on a commission, petitioner

notes certain overtones in.this and other opinions to

‘the effect that the sales force are not limited, to the

forty hour week because they work on commission,

~~ and that a commission based wage is the test for those

personnel who would be exempt from Fair Labor Stand-.

ards hour restriction. Whereas petitioner does not

_ subscribe to this criteria, it makes no difference whi t-

soever, for Congress and more. particularly Congress-

man Roosevelt in committee hearing made it perfectly

clear for the enactors of this‘law that it was an industry

~ wide practice of franchise auto and trailer dealers to

12Shapiro v..United States, 335 U.S. 1, 68 S.Ct. 1375 (4948). A

, Statute susceptible of more than one meanir{g must be read in

the manner which effectuates rather than f trates the major

ee of the acai draftsmen. OF

. pay the mechanics half of the labor charges on each — |

re a: | , R

' The point that petitioner would make is that the me-

chanic in preparing a trailer homie for sale is in fact

participating in that sale. A mechanic in making: a_

trailer-home suitable té individual tastes, and operable,

is. performing a selling function — and it is selling:

activity that is exempted frém coverage by the Act.

“

_ And, here is where petitioner believes error began.

Maintenance of the trailer after delivery’ certainly

seems tq be a function beyond the exempted realm |

of sates. Petitioner -agrees, and suggests that error

began when the Circuit Court failed to recognize that

sales are consummated because, of many inducements

offered by the seller. Not the least of these inducements |

is wafranty. This Warranty requires the service of the

_ trailer mechanic DURING THE WARRANTY PE-

RIOD and no longer. The pepair and replacement of.

parts of a trailer during this warranty period is but

another facet ofthe sale. Without warranty there w ould

be very few sales of trailer homes.

To demonstrate that 2 Ae is the key word in

this statutory exemption it is noted that it is repeated

twice in the statutory exemption that. states:

“*Anv salesman, partsman, or mechanic pri-

marily engaged in SELLING or servicing auto~__

mobiles, trailers, trucks, farm implements or

é e y

'SHouse Committee on Education and Labor hearing, Minimum

- Wage Hour Amendments, 1965. cr ,

5 co 19

aircraft, if suiploved by a nonmanufacturing

establishment primarily engaged in the busi-

ness of SELLING such vehicles to ultimate

‘purchasers.’ ”

In this and other cases, and particularly in the brief

of various counsel, the problem is oversimplification.

With hyphens or: asterisks the statute is abbreviated

and the problem is stated thus: Is the sce uenee sahil

era

1 Unease PRIMARILY ENGAGED ‘— IN

SERVICING - — TRAILERS.”

The hyphen bisstans and the misinterpretation of the

statute follows in under standable sequence.

Petitioner believes that “servicing”: is a word with

comprehension enough to encompass just about any-

thing any mechanic could do to a trailer home in order

to make it more desirable. livable, serviceable,

et cetera. But for the Jpoment es aa the hvphens

with .a statutory “in selling or” and then suppose

a potential buyer of a trailer home was completely .-

- satisfied with the product but for the color, then sup- |

pose the trailer mechanic repainted the trailer home

and sold a trailer home. Is he:exempt ftefm the Fair

Labor Standards requirements. Petitioner believes

. that Congress has so decreed, and absent a constitu-

tional fault, what Congress has decreed no Court, in-

cluding the Fifth Circuit Court of Appeals, should put

asunder, modify, repeal, abrogate or interpret out of

_ existence. oe |

+ 20

Constitutionally. petitioner by the opinion complained

of is being deprived of the equal protection of the law

granted to his feltow artisan in the automobile indusiry

because of the attempted usurpation.of legislative au-

thority by ‘the Secretary of Labor, Which usurpation

‘now has the seal of approval of the Fitth C ireuit Court

ot Appeals — and from this we rd Si .

hm gas CONCLUSION i

The automotive franchise dealer has alw ays been

excluded from the minimum wage-hour wien ns of

. " Fi 3 ' 7

the Fair Labor Standards. The changing natute

ie,

of the

franchise operation necessitated .the Specification of

excluded personnel, Le, salesman, partsman.and me-

—chanic. All automotive. mech: inics regardless of duties

are excluded from coverage by the Act. A 1966 amend-:

‘ment gave the trailer industry the same exemption

as the automotive industry. The opittion of the Fifth

Circuit Court of Appeals has denied this exclusipn to

trailer mechanics and- in so doing they hav e denied

trailer mechanics the equal protection of our laws..

Respectfully, subm itted,.

| LOUIS A. DI ROSA ;

i 812 Pere Marquette Building

New Orleans, Louisiana 70112

GUY P. ‘JOHNSON | ra a

812 Pere Marquette. Building.

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a er UNITED STATES COURT. OF APPEALS

' FOR THE FIFTH CIRCUIT

= -

October Term, 1969 -

No. 27956

| os

ag C. Docket No. CA 67-2 “C”

GEORGE P. SHULTZ, Secretary of Labor,

‘United States Department of Labor,

- Plaintiff- in cake

versus ;

LOUISIANA TRAILER SALES, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

- | Eastern District’ of Louisiana

Before BROWN, Chief Judge, AINSWORTH and

. GODBOLD. Circuit — |

JU DGMENT

This cause came on to be heard on: the transcript .

of the record from. the United States District Cotirt

for the Eastern District of Louisiana, and was argued

by counsel; | 3

APPENDIX “a pee so é

: 23:

_ ON CONSIDERATION WHEREOF, It is :‘now here:

ordered and adjudged by this Court that the judgment is

of the said District Court in this cause be, and. the “

same is hereby, rev ersed; and that this cause be, and

the same is hereby, remanded to:the said District Court

for whatever wage adjustments are nec essary in 1 order :

te conform With the opinion of this Court. '

It is further ordered that defendant- appellee pay to

plaintitf- -appellant, the costs on appeal to be gina by

the Clerk of this Court.

| ; | “June 22. 1970

. Issied as Mandate: Jul..24, 1970 |

ci yaicci ~

“IN THE .

UNITED STATES COURT OF APPEALS ¥.-

FOR THE FIFTH CIRCUIT > :

GEORGE P. SHULTZ, Secretary of Labor,

United States Department of Labor,

Plaintiff- apres:

versus’

| LOUIS! ANA TR. AILER SALES, INC...

_ Defendant- Appellee.

{

. . C °

ree from the United States District Court, wid the

ay Eastern District, of Louisiana

2°

: es

elore: BROWN, Chief: aes. AINSWORTH and

| GODBOLD, Cirewit aris :

AINSW ORTH. Cire uit Judge: ‘The sole question for

determination in this matter inv olving a statutory in-

‘terpretation is whether the overtime exemption provi-

“sions of Section 13(b) (10)’ of the Fair Labor Standards, —s

Act, 29 U.S.C. § 2130b). (10) (1966), are apie ele

to five ace: ees of appellee Louisiana. Trailer Sales, ~

Inc., known us “servicem e n” ‘and “service-me-

: chanics,” ” The District Court found the employ ees to *

'- be withic the overtime exemption provisions of the ;

| Act. _ disagree for reasons which follow. as

«*

. Section 13(b) (10) of the’ Act exempts from overtime

“coverage

eo: m

F oh,

“any salesman, partsman, or mechanic pri-

marily engaged in selling or servicing auto- |

mobiles, trailers, trucks, farm implements, or

“aircraft if employ ed by a nonmanufacturing

establishment primarily engaged in the. busi-

ness of selling such vehicles to ultimate © mais ae

chasers.” | . Js s

”°

The. pertinent facts have been stipulated. Appellee,

a nonmanufacturing concern, is engaged in‘the ‘sale

of new and used house tr ailers or mobile homes. The

- parties further stipulated .that the word “trailer” as

used in ‘the Act includes mobile homes. The hybrid _

nature of a mobile home, however — as a- vehicle

when moving from place to place, and as a residence

‘stationary~ -base —

when. permanently’ mounted on ‘a

has engendered "much of this: controv ersy in determin-

‘in excluding trailer Ss

ing the intent .of, the Legislatur

~ from the Act's coverage. In order to come within the

detailed ‘in the stipulation. to include:

exemption provisions of the Aet, the servicemen must

meet three. essential requirements. They must be (1)

mechanics, (2) who’are e primarily engaged in ¢3) serv-

icing ‘trailers: It is not disputed that the term “pri-

marily engaged” as used in the Act ‘contemplates in

excess, of fifty per cent of the employees’ hours. of

work:! The duties of the servicemen in question are |

“A. Checking the interior and exterior of mobile

homes and trailers received from, manufacturers for

any defects in workmanship or damages and repairing

same. | .

8B. hacking, servicing, repairing and replacing

parts in appliances, the plumbing, eléctrical air con-

ditioning, structural and butane gas systems in mo-

bile homes and trailers both before and after delivery

‘to customers.

_1See 91 Wage and Hour Manual, pp. 93 1, 935-937.

/ ee er eae os pee

“C.° Connecting up the plumbing, air conditioning,

electrical, sewer, and gas systems to water, electric,

gas and sewer Imes at the customers site after de--

tal : +

_ livery.

“D. Délivering. mobile homes and trailers from de-

fendant’s establishment to the customer’s site.

} nS -

“BE, Constructing concrete block foundations for in-

stallation of mobile homes and trailers at customer’s

site. ; ; an c

“ rss

. - Placthe . and servicing mobile homes and trail-

ers on foundations ay customer’s sites. :

~“G. Performing ca r pentry work inside mobile

homes and trailers, e. g., freeing up or replacing .wood-

en doors, door frames, window frames, flooring, pan-

eling or par titions. :

}

“ Repairing: any leake resulting ‘from openings

in the hulls of. mobile homes and © trailers, oudleaks

in roof during warranty period. to-wit, one year "after

delivery. ce“ : pas | re

ug & Painting: the interior and exterior of mobile:

homes and trailers (primar ily used. trailers). ,

‘. ~ Repairing or re placing tile in the bathrooms,

kitchens or showers of mobile homes. and trailers.

o ‘ °

“K.. Repairing and/or replacing exterior aluminum

panels or othér portions of mobile homes and trailers

enn,

| | a

or appl liances which may be darnaged in transit or

during ~ tallation at the cuspomer’s‘sité.

&, : ° . . ‘ x .

“L. When circumstances required it, these employ-

“ees checked sery iced or repaired the running mechan-.

mann tne maohile homes and trailers such. as wheels,

axles, brakes and signal lights but these functions. were

pn gnd. did not reguire any substaritial amount.

of employee time.” : eer a ae ae te

The Secretary contends “that the term “mechanic”

shoutet -be restricted to employ ees performing those

sth vices which are or dinar ix performed in the automo-

“tive industry; for esample. check ‘ing wheels, axles,

brakes and signal lights, and. in transporting, these

homes for delivery.? The Sec ‘rets ry readily admits thats

- 2The following excerpt from an opinion signed by Wage and Hour

Administrator Clarence T. Lundquist, January ‘4, 1968, 9! Wage

and Hour Manual, p. 935, er the position taken by the

Secretary: :

“As used in. section 13(b) (10) with respect to trailers .

the term ‘mechanic’ describes an employee whose pri-

mary duty (i.‘e., more than 50 percent of his work

‘ time) is spent performing mechanical work on trailers

to place them in proper cperating condition: by freé-

pairing and servicing their running méchanisms, such

as’ wheels, axles, brakes, hitches, and signal lights.

Thus, those employees who are engaged in “checking |

the plumbing, electrical and butane gas systems, the

- doors, Windows and other structural features of. the

trailer to make certain that they are in working order, ;

would not be included in the exemption.. This -inter- |

pretatior? i is based on. the premise that fhe exemption ~

was intended to apply, to mechanics but not to serv-

icemen who perform the same type of duties as_the

thousands of. individuals. who. serv ice- “household Ap-

. Pliances and make home repairs.” |

“+

« the servicemen perform these functions © but argues

that the’ bulk of their duties consists of conv erting the

-mobile homes into permanent residenc es and in serv-

: icing and mairitaining them. thereafter and that they

are snot therefore “mechanics” servicing .“irailers”

within the intendment of the exemption. :

, f , e ’ } F Fa

The question. admittedly is a close one because of

‘ambiguities in the Act which are not rescived by stat-

utory definition. The, statute defines. neither

“mMe-

ehanie’- nor “trailer” and our resort to dictionaries

produces onlv further ambiguities because’of the v

ous

? 7 of . . é -

Shaces 68 meaning aseribed to both termes.

only hght shed on the term “mechanic” is conta

in the following language of House Report No.

89th Cong..'2d Sess., 1966, pp. 42-43: 4

all employees doing mechanical , work, such &s

“The term ‘mechanic’ is intended to inelude

ari .

The

ined.

1366,

get-ready mechanics, | automobile, truck, farm.

implement, or aircraft mechanics. body or fen-

‘ der mechanics, used ‘car reconditioning me-

the

The definition. cont:

chanics and | \\ wrecker mechanics.” 2.

term defined, is not \oo helpful. However. the illus-

strative ‘grouping of words following the definition hase

a vehicular connotation_and is suggestive of automotive

units. The definition of iebechusie” was submitted

3The retention by the Committee of the term “farm implements”

in the overtime exemption, although not compelling an in-

ference that the implements are considered vehicular and

mechanical in the sense of having moving parts, does not ws

‘

fning as.it does a variant of

by the Hiouse prior to the a: ‘dition of the term * ‘trailer”

to the exemption pr virion 18, ot Section 13¢b) of -the

Aci; Thz ,reasons Sle conclusion is’ that’ at that time

at least there was no consideration of the applicability

*, of the term “mechanic” to the mobile home industry,

whose servi¢cmen aaa perform myriad diversi-

fied furctions noi usually ass sociated with ve! Nicles or

- -~performed by mechanics, ranging in nature from the

‘installation of plumbing to constructing &* concrete blo ck

foundations for, installation at building sites. Thereafter

the lesisiawive history is sieht. te any relating back

of the term “trailer” to the term “mechanic.” It is

also, notewor thy that in the Hear ings before the House

Labor Subcommittee durin ¢ the. first session of the

89th Congress: the mobile home ‘industry's. emphasis

centered on obtaining the overtime exem tion for its

Salesmon. not mechanies.4

clude such an inference. More significantly, however. is the

relation of farm. implements to employment ,in agriculture, a

field which has historically enjoyed. pe the “overtime and

minimum wage exemptions. See 29 U.S.C. § 213(a) (1938).

4Hearings before the House Labor hidsenatanition. H. R. 8259, 89th

Cong., Ist Sess., 1965, 657-660.

Ah amendment was proposed which would have exempted

from the Aet’s overtime provisions “any employee employed as

a salesman or serviceman by the establishment primarily en-

gaged in selling mobile homes, travel, trailers or camping

-trailers.”’ The amendment was rejected, and as finally enacted -

the. amendment contained the word “trailers” in, lieu of the *

three suggested. It is not -clear.from the legislative history

whether the’ substituted term was intended as a restriction or _

as an expansion to cover. similar structures under’one heading.

However, the remarks of the committee chairman, Congress-

~ _ man Roosevelt, following the proposed amendment and an ex-

~ planation by its advocate, suggest his rejection of exemption

coverage for repairmen servicing any permanently land-based

unit. Hearings before the House Labor Subcommittee on H. R:

“8259, 89th Cong,, Ist Sess., 1965, p. 659.

30 mane

As previously noted, the verm “trailer” is not defined

‘in the staiute. The-Act includes the term with the same

series of words — automobiles, trucks. and farm im-

plements —— contained in the House Report definition

of “mechanic” The Act spevifically refers back to

the serigs ao “each vehicles.’5 The odly sensé in which

the word “vehicle” could reasonably have been intend-

ed is that conroting a movirg conve, ance’ er means

of trans) vytation.® : - Jat.

’ 7) *

~ 7 e

STo the same effect see H. Conf. Rep. 2004, 89th Cong.. 2d Sess.,

= September 6,, 1966, United States Code Congressional and Ad-

ministrative News, p. 3049. .

6A report made by the Federal Home ae Bank Board, Washing-

: ton. D. C., dated May 1969, entitled “A Study ef The Mobile

Home Industry, 2 demonstrates the variance between the mobile

home and the ordin: ry trav cl trailer:

“It cis necessary’ to distinguish betwecn a mobile

home anda travel trailer, A mobile home has been

adel ined a movable or portable aiveYin iw constructed

“* ta be towed on its own chassis, connected to utilities,

- and designed without a- permanent foundation for

year-round living. It can consist of one or more units

- that can be folded, coliapsed-or telescoped when towed’

and expanded later for additional eubic capacity, or

of two or more units, separately towable but de-

P signed to ‘be joined into one integral unit, capable of

being’ again separated ‘into the components for re- °

peated towing. A mobile home is at least 29 feet in ,

length and 10 feet in width. Mobile homes aré towed to —

their sites by trucks whose movements are controlled’

by ‘state highway regulations, or they are shipped on

railroad flat cars.

“On the other hand, a travel trailer is a portable

structure built on a chassis and designed for temporary

use. It is.used for travel, recreation,, and vacation

purposes. Most manufacturers label their units ‘recrea-

‘tional vehicle’ in order to distinguish them from

mobile homes. A’ recreational vehicle is also distin-

_ guishable by its size which may be no more than 8 feet

wide and 32 feet long. These units may be towed by

_an automobile, .

—_

_ and travel trailer seems to be that one is. built for

permanent occupation while the other. is intended to ,

. be occupied purely on’ a temporary basis: (P. 4.)

The Study further depicts the mobite A+ome as an answer to

the housing shortage and the grewing economic needs of our

country. The introduction to the Study furnishes the keynote

to its contents: es

“Housing for low and moderate income families is

- the. most urgent shelter need- of the Nation ‘today.

Both our industry and the Board has a “mandate: to

do atl it can to increase the supply of housing to

this important segment of our ever growing. popula-

tion’ :

-The’ following excerpts from. the Study’ further substantiate the

role played by the mobile:h pme a and the success enjoyed by the

industry in: supplanting the. needs furn ished by the conven-

; Honal. house- building industry: eS :

” .In'1865 there were 965 600 ees family hous-

ing ies In contrast, ‘preliminary figures indicate

that there were 734.000 singie tamiiy housing starts

. during 1966, This represents almost a 20° decline ‘in:

conventional housing starts. 2 Ss

‘‘The mobile home industry ee to a certain

extent from the housing shortage due to the efiect

of tight money on housing starts. ... .

‘In 1947 factory produced homes of all kinds ac-

counted for 12" of the housing mix. By 1967. nearly

a whopping 40%. -of singie family homes were factory .

produced: mobile factories buiit 20°°° of all these

hemes and your “pre-fab’ competitors built the same

amount.” oe Soe

“As further evidence ef prospective growth. Standard °

and Poor's ‘The Outiook’ of March 18, 1968. reported

-the 1267 production at-241,000 units,.or.11/* more than

1966. ‘The Outlook’ cqntinued with. the following gen-

eral forecast: ‘Industry teaders predict shipments of

400.000 units: by 1972, pginting: out. a population

trends fav or continued growth. .

= = .

. The induetey seems to have followed a cy ‘clical

sattern with the economy rather than the contracycli-

cal pattern followed by“conventional home building.

The boom in mobile homes has been the greatest dur-

A statute susceptible of more than one meaning must

be read in the manner w hich effegtuates rhther than,

frustrates the’ major purpose of the legislative drafts-

‘men. Shapiro v. United States, 385 U: S& 1. 81 68 S.

were at their lowest ebb. ; Foe

.Like the conventional, home builder, a mobile -

home manufacturer’ needs only a, little capital to

begin production. This keeps him in and out of the

business in a pattern similar to the natienat economy.

His influence is readily felt in the industry and he

competes vigorously with large firms for a share’

of the’ local market.

.{The mobile. home industry] has all of the = in-

dicators of a sound industry, and its impact will ne

doubt be felt in the housing market for many years,

Pe: 6S, 10.)

es ‘appears or the market tor mobile Ga speaks

for itself without further study. The fellowing gen-

eral statements are made in stimmary: F

“For the. present there ate more than five million

people who. live in mobile homes. This figure in-

cludes third generation miobile home dwellers. .

Indications point to a ‘continued rapid growth

in sales. The younger and older segments of our

population are increasing rapidly ands should

continue to find this type of housing desirable

a The demand will also be’stimulated by the grow-

ing number of families purchasing sec6nd homes.

“For the immediate future, in addition to the an-

ticipated demand increase mentioned above. we

can reasonably expect added use of mobile homes

~ in retirement. centers and garden -apartments.

Government subsidized, low-income housing will

make effective use of mobile homes.

“For the long range futurg, we can anticipate use

of mobile homes as yet untried or ‘even ‘heard °

of. These will include luxury type mobile homes

and parks and high rise apartment complexes.

. @. 383 a

sur .

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. “

a ‘ QXK HOA i be ' Youn : yy } si

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Sant GANS VAS shee: sey ee Tes Pees Qnsd ey Pew GaQenessene “Poeyess wa

wes FANS SANYO. WANTS OL IT TOT TO ORD ONO Tram | The

. 4 ~ . ~

WN Sap oF THe Aer Spe S Roo 1487 Soth Cone. 24 Sess

eA.

LM "SS SAA ‘ . ) . a) ¥ vw? N] “2 ; ae Os as

WEA Lh ited Sistes Cage Consressenrsl and Administrative

Newn op O06 | ;

Py . . 7

. . ~ . a ¢ : ; . " « S .e

NS PM THAAP A ro Neorg Assistant mr. the W axe Wa Reour

awe ‘

’ > . ne es si ‘J ‘. .* . rN . . . ’ ~

AS Vineto BPrederiek FG MRseOw. GAStrAY Auwdwast 17. 1967,

‘ R. » . Rs o¥s 5 . . ~~ is . 7 r

Meee Oe A aprellee whieh aouates’ & nrebila heme with a

kee Ae maposes of the etemption. is ret determinative

ss . ~ a

* SAMAR TRO Sooretary concedes as minh THe same ‘Assistant

‘

es . ba .

Wy ANS PTO foe MMA HHM

‘Var sam the Act on Ausust 4 1987, bw saving

~ form cmechance cmagns any emplorvee doing

co: 7. See eR] werk. such as Set red. mochanies

: 7 TARO} tharek farm inintemenk or aiteratt wrechgnies

x < . i 3

. DORAN 0 onder mochantes, uaai car recenditiani

. s ca « ‘

. 1 ~ . " nS ov - . a} . « bh — ae .

: Nehentos and wrecker meckanies. ‘The term: mechan

. : “3 . b | . sees see PI a2 “ayes ~

Hex Nor Prelude employes penysriuy -gerforming

‘

; Seok Hon moochancial work as washing. claning. paint

hig 4 rt >: » “e : . a . .

ys PAW WOlishineg. tyostslling Seat covers dsphicohing lub.

TS Wisas 2h Hout Menusl. p ass

@z* KR «* ~ WAS’: ORS R y SSO ses & TARA awhves 394 ‘a Fire

XY OSSA ~Y cave % WW. Goewwv Biya < LORS Were introduced

St PhO Foose arta Senste. nesmeetively. dm Mav 18. 79648. Both

4 BRAY Pee Teas with the Iansuase OA Bill te Amend the Fair

. ~ . n ree . as

TSI Sterderds Act fo ONterd ros peetecoen te additonal em-

, BROWS. HK Tmypm ive its maximum hours standards; and ‘for

. Se ba -

‘ASA ~ ~ SAAS OK e ¢ P

. '

«' . .

* e Ss

; * *« i

. - - : - & Fs

. . *

6 . . 4 yes ‘ as

OY PRITRASGS AT OVINE ONE MND

Section 13(a) (19),2-the forerunner of Section 13(b)

(10); provided all-employees of automobile, truck and

farm implement dealers a complete exemption from

both the minimum wage, and overtime provisions of ;

the Act. In 1966 when the ‘Act. Was. aniended to include

the present Section: 13(b) (10), the provisions of the.-

“amendment, while bro: dening. the exemption coverage

to the aireraft and trailer industries, had an overall

limiting effect. It not only narrowed the gréup of em-

plovees to be exempted to salesmen, partsmen cand

mec hanies, but excluded the former minimum wage

ON empu on applicable: to this category of emplovees.

Ii is apparent that the addition af the sireraft and

trailer industries: to the exemption was a recognition

at certain disadvartages suffered bv industries which

were comparable to the attomotive industries Salve ondyv -

CU IO%N ine .Hne ONOVYP UT 4 OS

The Fourth Cireuit very revently had eccasion to

Yeppret 29 US Co § 21318) (10) fin, the ‘case -Of D.

Ww. Snell 2 rohit tty Mobile Home: Brokers, Inc.. dob

AtoZ Sebile Yoimes: 4-Cir., 1970, 9... Fe 24s"

|No. 13613, April 6, 1970]. under eircumstances similar

to, those’ in. thesinstant matter. In Snell the Court af-

firmed the Distric! Court's decision in. fayer ef an em-

plovee who Sought: to fecover unpaid overiime wages,

and liquidated damages tram his-employer tsder the,

Fair Labor Standards Act. The Feurih Circuit rejecied

the. argun nen of ‘the emplover that Snell was ex yup!

from the ov ertime provisions of the Aet because ‘Ye

“swas a mechanic primarily engé ged in servicing trailers

$29 U.S.C. § 213(a) (19) (1964).

\ 35

within the meaning of the exemption amendment and

held: Lari

= “ . °

“ITH is aeiinibaiad from [the Act’s] langu-

age and from the legislative history that Con-:

. gréss did not intend to exempt an employee

~ who was primarily engaged in truck driving,

construction work, or servicing appliances.

Prior to 1966, the Act exempted all employees

of automobile, truck, and farm implement

dealers. The 1966 exemption ‘named only three

specifics classes. of employees “— salesmen,

partsmen, and ‘mechanics. As originally ..pra-

posed, the exemption applied only ‘to selling

and servicing automobiles, trucks: farm imple-

| ments, and aircraft, but an amendment provwgd-

c ing for the inclusion of trailers was. adopted on

the floor of the House. Thus it is plain that’ Con-

gress intended to bring within-the exemption

mechanics who performed-the type of work on

.trailers that othé® mechanics performed on Qu-

tomobiles, trucks. farm implements, or air-

craft.” (Emphas is supplied.).-

We are in accord with the Fourth Circuit’s analysis

‘ of congressional intent.'° . es ~~

10The holding in Snell that “duties as a truck driver, construction .

worker, and appliance serviceman” are not within the exemp-

tion accords with our holding here. We do not agree, however,

that all get-ready work comes under the exemption. ‘If the

phrase modifies the type of mechanical work performed on

trailers which is performed by other mechanics on automobiles,

trucks, farm implements, or aircraft, such get- cs stad work. is

— ;

F . < ae

: ; 8 36°. :

"Exemptions from the Fair Labor Standards Act are |

to be narrowly construed ‘against.the employer, upon

‘which the burden rests to show that it comes within*

the exemption. Arnold v. Bew Kanowsky, Inc., 361 U.

S. 388, 392, 394,.80 S. Ct. 453, 456, 457 (1960) ; Mitchell

a Kentutky’ Finance Company, 359 U. S. 290, 295, 79

S. Ct. 756, 759 (1959): Yogurt: Masters, Inc. v. Goldberg,

5 Cir., 1962, 310 F. 2d 53, 55. The record fails to show

that, appellee has met the burden of proving that the

employees in question are “mechanjes,” within the

restricted and commonly accepted Sense. which we

deem. Congress’ intended, who are primarily engaged

in servicing trailers.

REVERSED and REMANDED for whatever wage

adjustments are necessary in order to. conform with |

this decision. |

APPENDIX “C”

ee IN THE

UNITED ‘STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 27956

GEORGE P. SHULTZ, Secretary of Labok,

y United States: Department of Labor, \

. . Plaintiff-Appellant,

versus Ae

LOUISIANA TRAILER SALES, INC.,

- Defendant- oe. snag

' Appeal from the United States District Court for the

: “ Bastern District of Louisiana

(July 16, 1970), (

_. ON PETITION-FOR REHEARING

* Betoie BROWN, Chief Judge, All SWORTH and

GODBOLD, Circuit Judges.

‘PER CURIAM: IT IS ORDERED th t’ the petition

for rehearing filed in the above entitled - and numbered _

~ cause be’and the same is hereby denied.

“ae

‘ y Pee ‘A 4

‘ § <

vile a

ely. ey, ’ i.

BO Ho wet ae

Beri

ot ga

Gn the Supreme Court of the Guited States :

LOUISTANA TRAILER Sates, INC.,: PETITIONER Ps

. 9 .

4 . .

Janes. D. Honasox, SECRETARY OF LABOR .,

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

‘MEMORANDUM’FOR THE RESPONDENT IN OPPOSITION

; :

wht this action against

petitioner under Section V7 the Fair Lahor Stand-

ards Act (29 U.S.C. 217) te enjoin violations of the

Act's overtime and recordkeeping requirements, and

rey ‘ 4 4 Pe é

Phe Seeretary of Labor |

to restrain the continned wi ithholding of unpaid over-

time compensation due certain of its employees, ~Peti-

tioner denied thi it the en ployees, in. question= were

2 subject to. the overtime provisions of the Act, con-

o = tending’ that such eniployees were within the over-

. time exemption provided hy Seetion 13())(10) fora

“mechamle primarily engaged in * * * servicing auto-

mobiles, trailers, trucks, farm implements, or air-

erat.”

’

¢ ‘ann ~~

Petitioner is engaged in®the sale of new and used

-_—

mobile homes. The employees it question are Frespoxe -

sible for readying the mobile homes tor delivery, de

livering and setting them up at the customers’ Site,

_and performing repait and maintenatice work there

alte rs WW hile these employees QeCASLON uly service and

repair the running mechanisuis used te move the

hemes on the highway (such as wheels, axles. brakes

and signaldights), most of their time is’spent in such

tasks as Constructing the eoucrete block foundations

~ for installation of the homes at the customers’ site:

repairing appliances: connecting and servieing the

plumbing, -ain® conditioning, electrical and” gasesys-

tous: carpentry work :and painting (A. 14-17)

The court below, after a full review of the legista-

tive history of Section Ts cb) (10) (Pet. App. 28-34).

including ‘Congress’ explicit rejection ‘of ‘the broad —

exemption for “servicenien™ sought by the mobile

home industry (Pet. Vpp, 29 at n. 4)—-coneluded that

“{tjo construe the word Smechanie’ in conjunetion

with the word. ‘trailer’ as ime Juding the xyarious house

repair, truck driver, and construction: diqties per-

formed by these servicemen, is to frustrate the legis:

lative intention and torextend the exemption beyond °

that” intended by Congress (Pot. App. 33). Noting

that, in context, the phraseology of the exemption “has

--a vehicular connotation” (Pet. App. 28), the court.

held that the exemption for mechames servicing trail

ers is limited to “mechanies Who performed the type

of wwork on trailers that other mechantes Rises

on autoniobiles, trucks, farm imple ments, Pairer att”

We Aaa SAL, That NtErTpret{atlion, drpectly quoted

SM The oa other appellate deeiston on. this issue

Ay \ @ ete Wobo), Home Ne r x. Ine,, 424 | Der

~ \ aT ' : : ‘eh ary yt * j

NS ONL a). Comports with’ this Court's: admoni

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.