# Petition for Writ of Certiorari — Louisiana Trailer Sales, Inc. v. Hodgson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0236%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 902 ## Text : ‘ % ! - 7 ef it a a Lo: ae j é ; : = ers . . : d IN THE | : ee a Pcs : | Storeme. C ourt af the United States : "a. > QCTOBER TERM. 19070 3 % ‘ é fi 5 _* if ' "i r ‘ . vs : cies ; « . a! ry ‘ “ ee ee aN WQS aNa” TRAN ERSALFS. INC. ‘ ay - ae titioner, xe a " werstrs .- Betis : ree oa | we eS Nig ¢ x 5 hg: 2 : ne SEARGE Po SCHULTZ. Secostary of Labor. Vinitac Bente Department of Lakor, x ‘ ‘ . 2 ° . ° , ‘ sé as . ’ s ; . Phe Jurisdiction of this. Cou! is invoked under 28 USC. 1254(1). mse 56 MERE , 5 ae 4 - ; A e " ° 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”, “ 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 3 ‘ . " . —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. t SUD! posedly oppressed a | . 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”. : : oa 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. Pe / : ; . . ee aa! ¥ : sa a 4 he . > - a» See « f, Nee ‘ ¥ cS « aw Une aadded . a ee £ \@ . ‘ s . a ie he ss s > 7 re ee i reOrveahonal . . VN aad : Why Asherica Ras’ . * ¢), a> | saa ‘| , oO DAVE ri - sees > OWN ‘ lay} aa WO OT OVOyY te. . me a) © wae a) = . . 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 . 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. eC 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- e 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 e « 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, « a “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. : ¢ - a 16 “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. 17 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 18 3 . 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: rt “*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. = . . ( x e . ‘ : 4a ’ t . ; aa * ~ 4 ‘¢ a Ss ‘ rd ~ ee : bd . sad . . ° s . = FY - -* . . e : . 7 . ; ae OG a or AA fem NA” Gomes a tite edn ee EEE oe at een : “a, ee A ee ._ * >) +a New Onedns. Lowisiana 70112 , . LITOVSPES VS. TAY ‘ . 2 * 6 : f : | ietatae , CERTIFICATE a, . fa ~ nd Me Reed S Mab, Oe } ‘ . . ae | ig ~~ a “ys RY >>» \ + a ‘ Se 3 yes aan ya } ‘Qa livare a | ~ . ‘ te, ©. 4 ~\ . A oniads € . , : Wie bas « ’ ° . * ee . } . . . s sas? *.er? - nt ‘ ‘ ) “ ee | writ & ‘ Mead ™i ates . ‘ ‘ 5 : e ~ so . . ‘~ e " | 7 Wiese so pg SD) 4 . P| - { ~ | Sa a | ray i ~) W ‘ Sz rt) 1) \ « iv 10, by pwiae- « , : . - e . -* “! : > ™ Le SNe dAs SV RASA. Y } ~ ‘ S VAP © US Mail. posvage prpnaid, this 3 . bs . ? ~ ‘ ‘ Neb _ . ‘ : - * ‘ > ¥ ° “ . \ “3 e . ‘e . ? : F, > ~ NYERe ¥ = ~ ® ; sy \ p , APY OPTI NSON ~ oj ° ayaa “£5 & = ‘ Five ree . . 2 2 . * * es ‘ 2 . , & s . . ‘ = y+. : ae > : . ba be bd = . e . a ee ; ? ° a “ x . ‘ * : a ‘ . . a . . at A + : * ; . . . ° ° : 2 : s E . = ‘ - . . : . s ‘ fo as . . i . im . : . e 3 s * / ‘ ’ : 4 . F { eget . . e 2 . ° . * od » . ‘ ; f Jf : i ha . . - p a ar \ * ae . . . . ‘ ‘ ‘ 2 : . ‘ , P * , ° . . = / . _ , - 4 . 22 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 ° me ree from the United States District Court, wid the ay Eastern District, of Louisiana 2° : es o 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 SL it 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 2 - 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.” | . ¢ . “+ . o ~ 2 . ee / « 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 ‘ e é fning as.it does a variant of rg 9 29 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 9 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. ee 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, . L* —_ 31 . “The distinguishing feature between a mobile home © _ 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. . s = = . . 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 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. . ing periods in whichs« conventional “housing © starts 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 . . _ e 5 . ¥ hy . . . ° eo . . rs . s oe ; * ‘i he = . ® . . . , * . “ a ‘ QXK HOA i be ' Youn : yy } si . . sss . sNNaN . at % % ‘ . ‘3 VAS ~ yey . . es. ve . oJ. rx’ FerS*% . 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