Another requirement for exemption under section 7(b)(3) is that the
enterprise must be ``independently owned and controlled''. Since this
requirement is in the conjunctive, it must be established that the
enterprise which is engaged in the wholesale or bulk distribution of
petroleum products is both
independently owned and independently controlled. (Wirtz v. Lunsford,
404 F. 2d 693 (C.A. 6).) At the hearing before the Senate Labor
Subcommittee, when the amendment was proposed which eventually was
incorporated in the Act as section 13(b)(10) by the 1961 amendments
(later repealed by the 1966 amendments to the Act and replaced by
section 7(b)(3)), a spokesman for proponents of the amendment made the
following statement, which bears on this requirement for exemption:
The designation ``independent'' as applied to an oil jobber means
that he owns his own office, bulk storage, and delivery facilities; pays
his own personnel, and in all respects conducts his business as any
other independent businessman.
It also means that the jobber is not a subsidiary of nor controlled
by any so-called major oil company, although the jobber may sell the
branded products of such a company.
Some jobbers own service stations which they lease to independent
dealers and a small percentage of jobbers may operate one or more
service stations with their own salaried personnel. (Senate Hearings on
the Amendments to the Fair Labor Standards Act, 87th Cong., first
session, p. 411.)
It appears, therefore, that the purpose of the requirement limiting the
exemption to the enterprises which are ``independently owned and
controlled,'' is to confine the exemption to those petroleum jobbers who
own their own facilities and equipment and who are not subsidiaries nor
controlled by any producer, refinery, terminal supplier or so-called
major oil company. (See Wirtz v. Lunsford, cited above.) The fact that
the petroleum jobber sells a branded product of a major oil company will
not, of itself, affect the status of his enterprise as one which is
``independently owned and controlled''. So also the fact that the jobber
owns gasoline service stations, which he leases or which he operates
himself, will not affect the status of his enterprise as being
``independently owned and controlled''.
