Petition for Writ of Certiorari — Cincinnati Reds v. Bridewell

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In The SEHICE 06 THE CLERK

Supreme Court of the United States

October Term, 1995

THE CINCINNATI REDS,

Petitioner,

v.

ROBERT R. BRIDEWELL, et. al.

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Randolph H. Freking

FREKING & BETZ

225 East Sixth Street

Second Floor

Cincinnati, OH 45202

(513) 721-1975

Counsel of Record for Petitioner

The Cincinnati Reds

QUESTION PRESENTED

UNDER THE FAIR LABOR STANDARDS ACT,

DOES EMPLOYMENT OF SOME WORKERS BY AN

AMUSEMENT OR RECREATIONAL ESTABLISHMENT

DURING ITS FIVE MONTH OFF SEASON COMPEL

THE CONCLUSION THAT THE ESTABLISHMENT

"OPERATES" MORE THAN SEVEN MONTHS IN ANY

CALENDAR YEAR?

Batidoner:

The Cincinnati Reds

Respondents:

Robert R. Bridewell

Stanley McAlpin

Daisy S. Pearl

Melville F. Walker

Eddie C. Rogers

ii

TABLE OF CONTENTS

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I. CONTRARY TO THE REASONING OF THE

SIXTH CIRCUIT COURT OF APPEALS, THE

EMPLOYMENT OF SOME WORKERS BY AN

AMUSEMENT OR RECREATIONAL

ESTABLISHMENT DURING ITS FIVE MONTH

OFF SEASON DOES NOT COMPEL THE

CONCLUSION UNDER THE ACT THAT THE

ESTABLISHMENT "OPERATES"

MORE THAN SEVEN MONTHS IN ANY

CARR UR oe See ie os 3

ili

A. By virtue of the Sixth Circuit

CONCLUSION

APPENDIX ..

Decision, there is now a direct conflict

among the Circuit Courts of Appeals on

the question of whether the employment of

some workers by an amusement or

recreational establishment during the off

season compels the conclusion that it

“operates” during the off season for

In FLSA jurisprudence, there are no other

cases or opinions that deny the

amusement or recreational

exemption solely on the basis that

the establishment has off season

PFT eT TS Tere ee 6

. The decision of the Sixth Circuit

directly contradicts Congressional

intent and the purpose of the

FLSA exempuion . 0... eee eee 8

pwodcdd vi oes beaee rene ee 12

WREVECTT EEL Re ek ee 13

iv

TABLE OF AUTHORITIES

CASES: Page

474 F.2d

18 (Sth Cir. 1973), cert. denied, 414 U. S.

827, 94 S.Ct. 47, 38 L.Ed.2d 61 (1973) .... 7, 12

, 478 F.2d

285 (10th Cir. 1973), cert, denied, 414 U.S.

909, 94 S.Ct. 228, 38 L.Ed.2d 147 (1973) ..... 8

Bridewell v. The Cincinn\ti Reds, 68 F.3d

60th Ge. 090 S............. 4,5, 11

No. C-1-93-203 (S.D. Ohio Mar. 24, 1994) .... §

817 F.2d 1255 (6th Cir. 1987) ...... 7,9, 10, 11

pitbrs gna ong (BNA) 843 (N_D. Ga.

Aug. 8, 1972), aff'd, Brennan v. Six Flags

Over Georgia, Lid., 474 F.2d 18 (Sth Cir.

1973), cert, denied, 414 U.S. 827, 94

S.Ct. 47, 38 L.Ed.2d 61 (1973) ........ w, 8a

Hodgson v, Yellowstone Park Lines, Inc.,

21 Wage & Hour Cas. (BNA) 32 (D. Wyo.

May 22, 1972), rev'd, Brennan v.

Yellowstone Park lines, Inc,, 478 F.2d 285

(10th Cir. 1973), cert. denied, 414 U.S. 909,

94 S.Ct. 228, 38 L.Ed.2d 147 (1973) ........ 8

, 64 F.3d 590

(REGP GE MEE doe eee erecteusac 3, 4,5, 8

No. 93-1847-Civ-T-24(C)

(M.D. Fla. Nov. 10, 1994)............0-. 5

oe F.26 1525 C1 CE. IFTT) nw es ces 10, 12

Wirtz v. Freehold Racing Ass’n, 17 Wage &

Hour Cas. (BNA) 308

[ees OS a BO | 6s wae o:6a:n i oe

STATUTE:

Section 13(a)(3) of the Fair Labor Standards Act,

as amended, 42 U.S.C. § 213(a)(3) (1994) ..... 4

OTHER AUTHORITIES:

a CPs Garey tik 3.9 URS. ep 9 bh ow oa 6 1]

Wage and Hour Opinion Letter No. 1361, Lab.

L. Rep. (CCH) 4 30,974 (January 24, 1975)

[June, 1973-September, 1978 Transfer Binder] ... 7

INTRODUCTION

The Petitioner respectfully requests that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Sixth Circuit in this case entered on

October 12, 1995.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is reported at 68 F.3d 136 (6th Cir. 1995).

The opinion of the United District Court for the

Southern District of Ohio has not been reported.

STATEMENT OF JURISDICTION

The Complaint was filed on March 26, 1993, in the

United States District Court for the Southern District of Ohio

alleging a failure to pay time-and-one-half for overtime work

under the Fair Labor Standards Act ("FLSA" or "the Act").

Jurisdiction of the district court was based upon 29 U.S.C.

§ 216, 28 U.S.C. §§ 1331, 1337.

On May 25, 1993, Petitioner, the Cincinnati Reds

("the Reds"), filed a motion for summary judgment alleging

it was exempt from the overtime provisions of the FLSA

pursuant to the exemption for amusement or recreational

establishments that operate fewer than seven months in any

calendar year. 29 U.S.C. § 213(a)(3). District Court Judge

Herman J. Weber referred the motion for summary judgment

to Magistrate Judge Robert A. Steinberg for report and

recommendation.

Vii

On January 6, 1994, Magistrate Judge Steinberg heard

oral argument on the motion. On February 14, 1994, he

issued his Report and Recommendation. In his

recommendation, Magistrate Judge Steinberg granted the

Reds’ motion for summary judgment for the years of 1991,

1992, and 1993. However, he found material issues of fact

precluded the granting of summary judgment for the year

1990, since the Reds season was extended by the team’s

participation in the 1990 World Series.

Both Petitioner and Respondents filed motions to

review the Report and Recommendation with District Court

Judge Weber. On March 24, 1994, District Judge Weber

affirmed Magistrate Judge Steinberg’s grant of summary

judgment to the Reds for the years of 1991, 1992 an 1993,

and he granted summary judgment to the Reds for the year

1990.

Respondents appealed to the United States Court of

Appeals for the Sixth Circuit on April 22, 1994. On October

12, 1994, the Sixth Circuit issued its opinion reversing and

remanding to the district court. The Sixth Circuit held that

the Reds’ employment of workers in the off season

compelled the conclusion that it operates more than seven

months in any calendar year and, therefore, cannot qualify

for the amusement and recreational establishment exception

to the FLSA. The Sixth Circuit did not cite any case law for

its conclusion. No petition for rehearing was filed.

The jurisdiction of this Court to review the judgment

of the Sixth Circuit is invoked pursuant to 28 U.S.C.

§ 1254(1).

Vili

STATUTE INVOLVED

§ 13(a)(3) of the Fair Labor Standards Act, as

amended, 29 U.S.C. § 213(a)(3), provides in pertinent part:

(a) The provisions of section 206 [relating to

minimum wages] and section 207 [relating to

mandatory overtime pay] of this title shall not

apply with respect to --

(3) any employee employed by

an establishment which is an

amusement or _ recreational

establishment . . . if (A) [the

establishment] does not operate

for more than seven months in

any calendar year [.]

ix

STATEMENT OF THE CASE

The Cincinnati Reds is a limited partnership organized

under the laws of the State of Ohio which owns and operates

a major league baseball franchise. The Reds conduct 81

regular season home games each year at Riverfront Stadium,

owned by the City of Cincinnati. The Reds’ regular season

runs from early April through early or late October of each

year depending on whether they qualify for post-season

playoffs and/or the World Series.'

The Cincinnati Bengals, a professional football

franchise, also leases Riverfront Stadium for its regular

season home games. The Bengals generally play four to six

games at Riverfront Stadium after the baseball season

concludes, i.e., they have four to six home games between

mid-October and late December.

Pursuant to the Reds’ lease with the City of

Cincinnati, employees of the Reds operate and control the

scoreboard and message boards during Cincinnati Bengals

games; pursuant to contracts between the Reds and the

Cincinnati Bengals, in the off season, employees of the Reds

clean the stadium concourse and private boxes prior to the

Bengals games that occur after the baseball season.

The Reds employ over 700 employees during the

baseball season. In contrast, the Reds employ approximately

120 employees in the off season.

'The Reds have qualified for post season play eight times in

the last 25 years, including five appearances in the World Series.

But for work stoppages, the Reds likely would have qualified two

other times, in 1981 and 1994.

Respondents are employees of the Reds who perform

cleaning, maintenance, and other related activities at

Riverfront Stadium in connection with major league baseball

games played in Cincinnati, Ohio.

Respondents work on a regular basis during the

regular season, but the nature of the Reds’ home game

schedule (alternating stretches of six or more consecutive

games followed by similar out of town road trips) requires

that they intermittently work greater than 40 hours in certain

work weeks during the Reds homestands. It is for these

weeks that the Respondents seek compensation at the rate of

time and one-half under the Act.

REASONS WHY THE PETITION SHOULD BE

GRANTED

I, CONTRARY TO THE REASONING OF THE

SIXTH CIRCUIT COURT OF APPEALS, THE

EMPLOYMENT OF SOME WORKERS BY AN

AMUSEMENT OR RECREATIONAL

ESTABLISHMENT DURING ITS FIVE MONTH

OFF SEASON DOES NOT COMPEL THE

CONCLUSION UNDER THE ACT THAT THE

ESTABLISHMENT "OPERATES"

MORE THAN SEVEN MONTHS IN ANY

CALENDAR YEAR.

A. By virtue of the Sixth Circuit’s Decision,

there is now a direct conflict among the Circuit Courts of

Appeals on the question of whether the employment of

some workers during the off season by an amusement or

recreational establishment compels the conclusion that it

"operates" during the off season for purposes of the

FLSA.

In September of 1995, the Eleventh Circuit Court of

Appeals decided a case remarkably similar to the case at bar.

Jeffery v. Sarasota White Sox, 64 F.3d 590 (11th Cir. 1995).

In Sarasota White Sox, a groundskeeper for the Sarasota

White Sox (a farm team of the Chicago White Sox) brought

an action alleging the Sarasota White Sox failed to pay him

time and one-half for overtime, pursuant to the FLSA.

Sarasota White Sox, 64 F.3d at 592.

In this case, a group of maintenance workers for the

Reds also brought an action alleging a failure to pay them

time and one-half for overtime pursuant to the FLSA.

Bridewell v. The Cincinnati Reds, 68 F.3d 136, 137 (6th

Cir. 1995). Both the Reds and the Sarasota White Sox rent

the stadium where regular season games are played from the

city in which the stadium is located. Sarasota White Sox, 64

F.3d at 593; Cincinnati Reds, 68 F.3d at 137.

Importantly, the District Court Order in Sarasota

White Sox addressed the issue of off season employees and

how they affect the seven month requirement for exemption.

Sarasota White Sox, 64 F.3d at 596. This issue was raised

in Sarasota White Sox because the employee in question in

fact worked for the Sarasota White Sox during the off

season. Id, The court specifically held that

[t]he fact that Plaintiff was employed in the

off season months relative to the preparation

and maintenance of the baseball field does not

alter the Court’s finding that Defendant’s

operation does not last longer than seven

months in any calendar year.

Id. The court went on to note that the exemption focuses on

the length of the seasonal operation not on the length of time

the plaintiff performed his work. Id, The court concluded

its opinion by remarking that

[i]t is the revenue-producing operation of the

Sarasota White Sox as a professional baseball

franchise which affords it the protection of the

exemption. 29 U.S.C. §213(a)(3) does not

require Defendant to completely shut down

or to terminate every employee at the end

of each baseball season.

Id. (emphasis added) (internal citations omitted).

In éach case, the baseball teams filed motions for

summary judgment asserting they were exempt from the

overtime provisions of the FLSA pursuant to the exemption

for amusement or recreational establishments. Jeffery vy.

Sarasota White Sox, Inc., No. 93-1847-Civ-T-24(C) at 1

(M.D. Fla. Nov. 10, 1994); Bridewell v. The Cincinnati

Reds, No. C-1-93-203 at 1 (S.D. Ohio Mar. 24, 1994). In

both cases, the federal district courts held that the teams were

exempt from the overtime provisions of the Act pursuant to

the exemption for amusement or recreational establishments

that operate for fewer than seven months in any calendar

year. Sarasota White Sox, No. 93-1847-Civ-T-24(C) at 11;

Cincinnati Reds, No. C-1-93-203 at 4.

Both cases were subsequently appealed to the

appropriate Circuit Court of Appeals. Jeffery v. Sarasota

White Sox, 64 F.3d 590 (11th Cir. 1995); Bridewell v. The

Cincinnati Reds, 68 F.3d 136 (6th Cir. 1995). The Eleventh

Circuit affirmed the district court’s decision in Sarasota

White Sox, per curiam, and incorporated the District Court

Order into its opinion. Sarasota White Sox, 64 F.3d at 592.

However, the Sixth Circuit reversed and remanded the

district court’s decision in Cincinnati Reds holding that the

Reds do not qualify for the amusement or recreational

exemption because the team employs up to 120 employees in

the off season. Cincinnati Reds, 68 F.3d at 139.

The Sixth Circuit's holding in Cincinnati Reds directly

contradicts the Eleventh Circuit’s decision in Sarasota White

Sox. This Court should grant certiorari to resolve the

conflict among the Circuit Courts of Appeals with regard to

whether the employment of some workers in the off season

by an amusement or recreational establishment compels the

conclusion that the establishment “operates” during the off

season and is, therefore, ineligible for exemption from the

overtime provisions of the FLSA.

B. In FLSA jurisprudence, there are no other

cases or administrative opinions that deny the amusement

or recreational establishment exemption solely on the basis

that the establishment has off season employees.

The Sixth Circuit’s decision is at odds with well

established interpretations of the Act. Courts and the United

States Department of Labor’s Wage and Hour Administrator

have consistently recognized that a seasonal employer need

not completely shut down operations after seven months in

order to qualify for the exemption.

In Wirtz v. Freehold Racing Assn., 17 Wage & Hour

Cas. (BNA) 308 (D. N.J. Feb. 15, 1966), the court held that

the fact that the racing association maintained a few

employees during the off season for public relations and

outside maintenance did not mean that the establishment

operated more than seven months of the year. Id, at 309,

311. The court explained that

[t]he Defendant’s only major operation is the

conduct of its two-month race meeting. The

importance of its off season operation is

minimal. The Fair Labor Standards Act by its

own terms applies to large businesses, yet it

exempts certain seasonal businesses despite

their magnitude. It is inconceivable that

Congress intended that a $3 million business

should close down completely during its non-

a i Ee ee ee ts

income-producing months. Reasonable

business practice makes such abandonment

impracticable.

Id, at 311 (emphasis in original).

In an Opinion Letter by the Wage-Hour Administrator

concerning whether a city beach that maintained some off

season employees qualified for the amusement or recreational

establishment exemption, the Administrator decided that

[t]he fact that some of the lifeguards work

more than seven months in the year

maintaining the equipment would not serve to

deny the exemption under section 13(a)(3),

provided the establishment (the beach) is not

open as a recreational facility (i.e., protected

swimming) for more than seven months in any

calendar year.

Wage and Hour Opinion Letter No. 1361, Lab. L. Rep.

(CCH) 4 30, 974 (January 24, 1975) [June, 1973-September,

1978 Transfer Binder] (emphasis in original). Due to

experience and informed judgment of the Agency charged

with interpreting the Act, opinions of the Wage-Hour

Administrator (while not binding on a court) are considered

persuasive. See Brock v, Louvers and Dampers, Inc., 817

F.2d 1255, 1258 (6th Cir. 1987) and Hodgson v. Six Flags

Over Georgia, Lid., 20 Wage & Hour Cas. 843, 845-46

(N.D. Ga. Aug. 8, 1972), aff'd, Brennan v. Six Flags Over

Georgia, Lid., 474 F.2d 18 (Sth Cir. 1973), cert. denied,

414 U.S. 827, 94 S.Ct. 47, 38 L.Ed.2d 61 (1973).

As explained in part A, supra, the Eleventh Circuit in

Sarasota White Sox expressly rejected the argument that

employment of some employees in an establishment's off

season precluded the establishment from qualifying for the

exemption. See also Hodgson v. Yellowstone Park Lines,

Inc., 21 Wage & Hour Cas. (BNA) 32, 35 (D. Wyo. May

22, 1972), rev'd on other grounds, Brennan vy. Yellowstone

Park Lines, Inc., 478 F.2d 285, 287 (10th Cir. 1973), cert.

denied, 414 U.S. 909, 94 S.Ct. 228, 38 L.Ed.2d 147 (1973)

(the court held that Yellowstone Park Lines met the seasonal

test exemption set forth in section 13(a)(3)(A) of the Fair

Labor Standards Act even though Yellowstone employed

approximately 50 employees in the off season in contrast to

over 2,000 employees employed during the park's regular

season; on appeal, the Tenth Circuit remarked in a footnote

that it was “undisputed that defendants meet the seasonal

requirements of § 213(a)(3).")

The Petitioner invites this Court to consider the

holdings of the courts below and determine whether the

employment of some workers in the off season by an

amusement or recreational establishment compels the

conclusion that the organization “operates” for more than

seven months in any calendar year as that term is used in the

Act.

C. The decision of the Sixth Circuit

directly contradicts Congressional

intent and the purpose of the

FLSA exemption.

The Congressional intent underlying the exemption for

amusement establishments was to relieve operators of

amusement parks, sporting events, and other seasonal

establishments from the overtime and minimum wage

provisions of the FLSA. An oft-quoted passage from the

Sixth Circuit reads as follows:

The purpose of the seasonal, amusement or

recreational establishment exemption was not

clearly spelled out in the legislative history of

either the 1961 or 1966 amendments.

However, there is some useful legislative

history discussing a proposed 1965

amendment to the FLSA. The House

Committee Report stated that the amusement

and recreational establishment exemption

would cover “such seasonal recreational or

amusement activities as amusement parks,

carnivals, circuses, sporting events,

parimutuel racing, sport boating or fishing, or

other similar or related activities... ." H.R.

Rep. No. 871, 89th Cong., Ist Sess. 35

(1965). Although the proposed amendment

was not passed, the legislative history is

relevant because the following year Congress

enacted a similar amendment including the

amusement and recreational exemption. See

Brennan v. Texas City Dike & Marina, Inc.,

492 F.2d 1115, 1118 n.8, 21 WH Cases 740

(Sth Cir.), cert. denied, 419 U.S. 896, 21 WH

Cases 1061 (1974).

, 817 F.2d 1255, 1258

(6th Cir. 1987) (emphasis added).

The Sixth Circuit in Brock, went on to explain that

logical purpose of the provision is to exempt

the type of amusement and recreational

enterprises listed above, which by their

nature, have very sharp peak and slack

seasons. These businesses argue that they

should not be held to the same wage and hour

requirements aS permanent, year-round

operations. Their particular character may

require longer hours in a shorter season, their

economic status may make higher wages

impractical, or they may offer non-monetary

rewards. Congress responded to these

concerns by enacting the amusement and

recreational exemption. ~

Id, at 1259. The court also noted that the “crucial question

for the purpose of determining whether or not a business falls

within the exemption is whether or not it is truly seasonal

[.J" Id

In addition, two courts have recognized that, when

Congress removed the amusement and recreational exemption

from the retail and service exemption in 1966, Congress

intended “to make plain that employees of seasonal

amusement or recreational companies generally are exempt."

See Marshall v. New Hampshire Jockey Club, Inc. , 562 F.2d

1323, 1329 (lst Cir. 1977) and Brock v. Louvers and

Dampers, Inc., supra, at 1257 (quoting Marshall v. New

Hampshire Jockey Club, Inc., 562 F.2d 1323, 1329, 23 WH

Cases 507 (ist Cir. 1977)).

10

Congressional intent is further evidenced in the only

federal regulation issued about the amusement or recreational

establishment exemption. This regulation defines amusement

or recreational establishments as those establishments

“frequented by the public for its amusement or recreation and

which are open for 7 months or less a year [.]" 29 C.F.R.

§ 779.385 (1995) (emphasis added). The fact that the word

“open” was chosen demonstrates that the exemption applies

to an operation with an “on" season and an "off" season,

regardless of whether the employees of the establishment

may work in more than seven of the twelve months of a

calendar year. The baseball season is open for less than

seven months a year.

As the district court noted in Wirtz, the FLSA by its

terms covers large organizations but also exempts certain

large organizations. Wirtz, 17 Wage & Hour Cas. at 311.

Congress specifically excluded seasonal operations from the

FLSA provisions, and the language of the exemption focuses

on the business’ operation, not the number of months in

which it has employees. The Congressional intent, as

recognized by the Sixth Circuit in Brock, was to exempt

organizations with very sharp peak and slack seasons where

the number of employees varies dramatically from the

regular season to the off season. Brock, 817 F.2d at 1259.

In the United States today, there are 26 American-

based major league baseball franchises, 30 National Football

League teams, 26 National Basketball Association teams, 19

National Hockey League teams,-and hundreds of minor

league baseball, basketball ané hicckey teams, all of which

operates an "on" season and an "off" season. Thus, the

Cincinnati Reds decision of the Sixth Circuit could have far

reaching implications and could hinder Congressional intent

1]

in the application of the FLSA not only in the Sixth Circuit

but nationwide for sports teams; amusement parks (see Six

Flags); race track operators (see Marshall v, New Hampshire

Jockey Club); and other establishments that were specifically

exempted from the FLSA.

The Sixth Circuit’s decision would eliminate the well

recognized exemption for amusement parks because many,

like the Reds and other sporting event operators, employ

employees in the off season. Such a holding would vitiate

congressional intent regarding the exemption that was

specifically designed to apply to operators of amusement

parks and sporting events.

CONCLUSION

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

_

Randolph H. Freking

FREKING & BETZ

225 East Sixth Street

Second Floor

Cincinnati, Ohio 45202

(513) 721-1975

Counsel of Record for

Petitioner The Cincinnati Reds

12

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1995 FED App. 0307P (6th Cir)

File Name: 95a0307p.06

No. 94-3562

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT R. BRIDEWELL; STANLEY

MCALPIN; DAISY S. PEARL;

MELVILLE F. WALKER; ana

EDDIE C. ROGERS,

Plaintiffs-Appellants, ON APPEAL from

United States District

Vv. Court for the Southern

District of Ohio

THE CINCINNATI REDS,

Defendant-Appellee.

Decided and Filed October 12, 1995

Before: NORRIS and DAUGHTREY, Circuit Judges;

CHURCHILL, District Judge.'

‘The Honorable James P. Churchill, United States

District Judge for the Eastern District of Michigan, sitting by

designation.

ALAN E. NORRIS, Circuit Judge. This is an appeal

from the district court’s grant of summary judgment in favor

of defendant, The Cincinnati Reds (the Reds). Maintenance

employees of the Reds alleged that the team violated the Fair

Labor Standards Act of 1938 (the Act), 29 U.S.C. §§201-219

(1988 & Supp. V 1993), by failing to pay a wage premium

for overtime work. The district court granted summary

judgment based upon the provision of the Act exempting

amusement or recreational establishments that operate for

fewer than eight months per year from its requirements.

Because we believe that the district court erred in this

determination, we reverse.

I.

The pertinent facts were stipulated by the parties.

Plaintiffs are employees of the Reds who perform

maintenance and cleaning duties at Cincinnati’s Riverfront

Stadium. The Reds operate a major league baseball

franchise. They normally hold eighty-one regular season

home games per year at Riverfront, which they lease from its

owner, the City of Cincinnati. They open spring training

camp in Florida in February each year, begin playing

pre-season exhibition games there in March, and start-their

regular season at Riverfront in April. Reds’ maintenance

employees begin working at Riverfront in March to prepare

the stadium for the regular season. The season generally

ends in September, but can extend until October when the

Reds qualify to participate in league playoff games.

The Reds’ activities at Riverfront are not limited to

playing baseball. Under their agreements with the City, the

team has the exclusive right to sell advertising on signs at

Riverfront throughout the year, to operate the scoreboard

during both their games and the games of the Cincinnati

Bengals football club, and to contract with a concessionaire

to operate at both Reds’ and Bengals’ games. Also, under

contracts with the Bengals, the Reds are obligated to clean

parts of the stadium when the Bengals play there. The Reds

use their employees to perform all of these functions.

The number of people whom the Reds employ varies

throughout the year. About 700 are employed during the

peak of activity at Riverfront, roughly from April through

September. The Reds employ approximately 120 people on

a year-round basis.

Plaintiffs? sued in district court, alleging that the

Reds violated the Act by failing to pay them a time and

one-half wage premium for the hours they worked beyond

forty hours per week as required by 29 U.S.C. §206. The

Reds moved for summary judgment, arguing that they are

exempt from the Act, since they qualify for the exemption

provided by 29 U.S.C. §213(a)(3) for recreational and

amusement establishments that do not operate for more than

seven months in a calendar year. The district court granted

?The five named plaintiffs sued on their own behalf and

on behalf of their maintenance and cleaning co-workers who

are members of the Service Employees International Union,

Local 158-A, AFL-CIO, and who had worked more than 40

hours in a week during the three-year period preceding the

filing of the complaint.

summary judgment in favor of the Reds on all of plaintiffs’

claims.

II.

In reviewing a district court’s grant of summary

judgment, we proceed de novo. EEOC v. Univ. of Detroit,

904 F.2d 331, 334 (6th Cir. 1989). Summary judgment is

proper if the pleadings, depositions, answers to

interrogatories, admissions, and any affidavits “show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). Here, the question is whether, in

view of the undisputed facts, the Reds qualify for the

§213(a)(3) exemption. If so, they are entitled to judgment as

a matter of law, and summary judgment is appropriate.

Section 213(a)(3) exempts from the Act’s overtime

pay provisions “any employee employed by an establishment

which is an amusement or recreational establishment . . ., if

(A) it does not operate for more than seven months in any

calendar year." To qualify for the exemption then, the Reds

(1) must be an amusement or recreational establishment and

(2) must not operate for more than seven months in a

calendar year. The Reds have the burden of establishing

entitlement to the exemptions, which we construe narrowly.

Brock v. Louvers and Dampers, Inc., 817 F.2d 1255, 1256

(6th Cir. 1987). The Reds must show that they are “plainly

and unmistakably within [the] terms and spirit" of the

exemption. Brennan v. Southern Productions, Inc. , 513 F.2d

740, 744 (6th Cir. 1975) (citing Arnold v. Ben Kanowsky,

Inc., 361 U.S. 388, 392 (1960).

In view of the stipulated facts, it seems to us that the

parties incorrectly focus on the duration of the Reds’

activities at Riverfront rather than on the duration of the

Reds’ overall operation. An entity seeking to invoke the

§213(a)(3) exemption must. both be an amusement or

recreational establishment and operate for fewer than eight

months per year. The Reds would have us conflate these

separate requirements and instead ask whether the Reds are

an establishment that stages amusement activities for fewer

than eight months per year. There is nothing in the Act that

would suggest that this is the correct approach. The proper

inquiry is, assuming arguendo that the Reds are an

amusement or recreational establishment, whether the Reds

operate for more than seven months per year, not whether

they are an entity that provides amusement or recreation for

its customers for more than seven months per year.

It is clear from the stipulated facts that the Reds do

indeed operate for more than seven months per year. While

a truly seasonal business that employs an insignificant

number of workers year-round could conceivably qualify for

the exemption, the fact that the Reds employ 120 year-round

workers compels the conclusion that they “operate”

year-round.

Because the Reds operate for more than seven months

in a calendar year, they were not entitled to summary

judgment based upon 20 U.S.C. §213(a)(3).

Ill.

For the foregoing reasons, we reverse the order of

summary judgment in favor of the Reds and remand this

cause to the district court for further proceedings.

FILED

KENNETH J. MURPHY

CLERK

Mar 24 3:30 PM ’94

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROBERT R. BRIDEWELL, et al.,

Plaintiffs

v. C-1-93-203

THE CINCINNATI REDS,

Defendant

ORDER

This matter is before the Court upon the Report and

Recommendation of the United States Magistrate Judge (doc.

no. 29), defendant’s motion for review (doc. no. 30),

plaintiffs’ memorandum in opposition (doc. no. 32),

plaintiffs’ motion for review (doc. nos. 31), and defendant’s

response (doc. no. 33).

Defendant’s motion for summary judgment presents

issues related to whether defendant The Cincinnati Reds

qualify for the Amusement and Recreational Establishment

exemption to the Fair Labor Standards Act (FLSA) overtime

wage requirements.

The Magistrate Judge concluded that The Reds is an

Amusement and Recreational Establishment within the

meaning of an FLSA exemption, 29 U.S.C. §213(a)(3). The

Magistrate Judge further determined that The Reds is entitled

to summary judgment in their favor on plaintiffs’ claims for

the years 1991, 1992, and 1993, since The Reds did not

operate more than seven months during those years. The

Magistrate Judge determined that The Reds is not entitled to

the exemption for 1990, since The Reds operated more than

seven months that year.

Plaintiffs argue that The Reds is not protected by the

exemption, because The Reds is not an “establishment”

within the meaning of the Amusement and Recreational

Establishment exemption. Plaintiffs rely on case law,

Department of Labor regulations, and opinions of the Wage

and Hour Administrator to define the term “establishment”

as “a distinct place of business." According to plaintiffs,

“the distinct physical place of business where plaintiffs are

employed is Riverfront Stadium." (doc. no. 31, p. 3).

Plaintiffs therefore argue that The Reds - admittedly a

franchise in the business of amusement and recreation -- is

not a distinct physical place of business.

Plaintiffs contend that The Reds will qualify for the

exemption only if its operation at Riverfront Stadium “is so

integral to Riverfront Stadium’s operation that they constitute

a single establishment." Id. at 4.

Upon a de novo review of the record, the Court finds

that the Magistrate Judge has accurately set forth the

controlling principles of law and properly applied them to the

particular facts of this case. This Court therefore adopts the

Magistrate Judge’s reasoning and conclusions, and finds that

The Reds is an establishment within the meaning of the

Amusement and Recreational Establishment exemption. The

Magistrate Judge properly analyzed pertinent caselaw and

opinions of the Wage and Hour Administrator. His analysis,

moreover, is consistent with the intent of Congress as

recognized by the United States Court of Appeals for the

Sixth Circuit:

The logical purpose of the provision is

to exempt the type of amusement and

recreational enterprises listed above, which by

their nature, have very sharp peak and slack

seasons.

Brock v. Louvers and Dampers, Inc., 817 F.2d 1255, 1258

(6th Cir. 1987). One of the amusement and recreational

enterprises listed above by the Court is “sporting events."

Id. at 1258. Each game played by The Reds at Riverfront

Stadium therefore constitutes a sporting event. Accordingly,

the Magistrate Judge correctly concluded that The Reds

qualify for the Amusement and Recreational Establishment

exemption for the years 1991, 1992, and 1993.

In light of the conclusion that each single game played

by The Reds at Riverfront Stadium constitutes a sporting

event which entitles The Reds to the exemption, this Court

finds that the Magistrate Judge should not have considered

pre-season games, played at Plant City, Florida, to calculate

the amount of time The Reds operated during 1990. The

Reds are entitled to the exemption for 1990 because each

game they played at Riverfront Stadium constituted a single

sporting event which Congress intended to exempt.

The Court rejects plaintiffs’ reliance on the

Department of Labor regulation which defines

“establishment” as a “distinct physical place of business," 29

C.F.R. §779.23, since this limitation on the term is

inconsistent with recognized Congressional intent. Agency

interpretations remain “persuasive not precedential,” Brock,

at 1258, and need not be followed where there are

compelling indications that an agency’s interpretation is

wrong.” Smith v. Babcock, F.3d, 1994 WL 76428

(6th Cir. March 14, 1994). The compelling circumstances

in the instant case are found in the recognized intent of

Congress to exempt sporting events and other similar

amusement and recreational activities from the FLSA’s

overtime-wage requirements.

The Court finds that the parties’ remaining

contentions have either been adequately addressed and

properly disposed of by the Magistrate Judge or present no

particularized arguments that warrant specific responses by

this Court.

ORDER

The Court ADOPTS in part and MODIFIES in part

the Report and Recommendations of the United States

Magistrate Judge (doc. no. 29), and ORDERS that:

(1) Defendant’s motion for summary judgment

(doc. no. 6) is GRANTED, and —. claims are

DISMISSED with prejudice;

(2) The parties’ motions to review the Report and

Recommendation (doc. nos. 30, 31) are GRANTED to the

extent that the Court has considered the Report and

Recommendation in light of the parties’ objections.

The case is terminated on the docket of this Court.

IT IS SO ORDERED.

s/ Herman J, Weber

Herman J. Weber, Judge

United States District Court