Reich v. Delon Olds Co., 94-CLA-59 (ALJ Mar. 4, 1996)
Date: March 4, 1996
Case No. 94-CLA-59
In the Matter of:
ROBERT REICH, SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR,
Plaintiff
v.
DELON OLDS COMPANY,
Respondent
William W. Kates, Esq.
For the Secretary of Labor
Gregory C. Hansen, Esq.
For the Respondent
Before: ALEXANDER KARST, Administrative Law Judge
DECISION AND ORDER
The Secretary of Labor brings this action under the Fair
Labor Standards Act of 1938, as amended, 29 U.S.C.
§§201 et seq. (hereinafter "FLSA" or "the Act") against
respondent DeLon Olds Company, an automobile dealership in Salem,
Oregon which employs about 100 people in several separate service
and sales departments for Oldsmobile, Honda, BMW, Volvo,
Mitsubishi, and Porshe cars. The Secretary seeks to impose a
$6,500 civil money penalty assessed against DeLon for three
alleged violations of child labor provisions in §16(e) of
the Act.
The Oregon Bureau of Labor and Industries reported to the
Wage and Hour Division of the U.S. Department of Labor in 1991
that William Walls, who was then 17 years old, was injured in an
auto accident on January 28, 1991 in the course and scope of his
employment as a courtesy driver by DeLon Olds. TR 35. Acting on
that tip, Mr. Richard W. Dewey, an investigator in the Wage and
Hour Division of the U.S. Department of Labor, investigated the
matter and concluded that DeLon employed three minor drivers,
Brenton Allen, Michael R. Welliver, and William R. Walls, in
violation of the Act. Thereupon, the Portland District Director
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of the Wage and Hour Division assessed a $6,500 civil money
penalty. Respondent filed an exception, and the Secretary
brought this action.
The parties have stipulated that DeLon Olds is subject to
the Act, and that this tribunal has jurisdiction in this case.
The parties agree that 29 C.F.R. §570.52 prohibits employees
under 18 years of age from driving motor vehicles on public
highways, but contains an exemption for an "operation of
automobiles or trucks not exceeding 6000 pounds gross vehicle
weight if such driving is restricted to daylight hours; provided,
such operation is only occasional and incidental to the minors'
employment." 29 C.F.R. §570.52(b)(1). The words
"occasional" and "incidental" are not defined in the regulation,
and the parties disagree about what they mean. But they agree
that Allen, Welliver and Walls were under 18, were employed by
DeLon, and drove vehicles weighing less than 6000 pounds in
daylight hours. The case turns on the question whether their
driving on public roads was "only occasional and incidental to
[their] employment."
The Government alleges that Allen, Walls and Welliver were
either part time or full time drivers engaged in transporting
customers from their homes or offices to the dealership and vice
versa. Although the firm kept no records designating the boys as
either drivers or lot attendants, DeLon contends they were lot
boys or attendants, and/or car washers, who were occasionally
asked "in a pinch to do some courtesy driving...." (TR 13), and
that their driving was permissible because it was "only
occasional and incidental" to their employment.
The Government's sole witness at the hearing was Mr. Richard
W. Dewey. He testified that he interviewed two of the three
minors in September 26, 1991, wrote out statements summarizing
the substance of what they told him, and that both young men
signed them.
Mr. Allen's statement says that three months after he
started as lot attendant for Oldsmobile and BMW section:
they had me doing lot attendant work up to about 3:00 p.m.
then I did some courtesy car driving. Other people worked
as drivers up to 3:00 p.m. then I drove. I used to work
from 1:00 p.m. to 6:00 p.m. I did this work as part-time
driver and part-time lot attendant up until about June lst
when I didn't drive any more, but worked in the service
department.... When I was driving courtesy car I would
estimate that I worked half of my shift driving, and half
my shift as a lot attendant....
PX 4.
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Mr. Welliver's statement says in pertinent part:
I started as a lot boy in April 1990 and about 6 months
later, I started driving courtesy car. - I drove
customers to and from the shop when their car was being
serviced.... I was working full-time as a courtesy
driver. I helped out on other things as needed, but my
main job was a courtesy driver. I drove at the
Oldsmobile dealership and Willie Walls was a courtesy
driver at the Honda dealership. I transferred over to
Honda when everybody else went to school.
PX 5.
Mr. Dewey testified that while he did not interview William
Walls because he was no longer with DeLon, an Oregon official
obtained his statement, which said that he worked for respondent
as a courtesy driver for 18 months prior to his injury accident,
and that courtesy driving was his primary duty. TR 45; DX 6.
Mr. Dewey said that after completing his investigation he
had a routine "final conference" with DeLon's office manager, Ms.
Kathy Faist, who admitted that the three young men were courtesy
drivers, and promised future compliance with the Act. TR 23.
Respondent called three witnesses. The first, Herbert
Juran, Vice President and General Manager of the firm, testified
that he is in charge of all sales, while the service side of the
business is managed by Mr. Michael Jacobsen. TR 49, 62. He
explained that lot attendants worked on the sales side, and
courtesy car drivers on the service side, and that Allen,
Welliver and Walls were employed as lot attendants on the sales
side. He indicated that their principal duty was washing cars,
but that they were lent from time to time to Mr. Jacobsen's
service side, to act as courtesy drivers. TR 50. Mr. Juran said
he hired Mr. Walls, but that the other two were hired by Mr.
Jacobsen. He said that although the boys worked for the sales
half of the business, they were supervised by Mr. Jacobsen.
Mr. Jacobsen testified that he was the overall parts and
service manager for all the DeLon operations; that he hired all
three minors; that the sales managers were their supervisors at
the start, but some time later Welliver and Allen switched to the
service department and worked as lubrication technicians. TR
71-72. He said none of the three worked on the service side as
courtesy drivers, but that they occasionally drove a vehicle off
the lot "as a courtesy function." TR 72. He also said that at
some point the three boys came over to the service department as
car washers. TR 73. On cross examination, Mr. Jacobsen conceded
that "they were expected to [drive courtesy cars] if needed every
day they were at work." TR 82. He acknowledged that he
personally filled out and signed the injury accident report of
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Mr. Walls which described his occupation as "courtesy driver"
because that is what he was doing when he was injured, but that
his regular job was as a lot boy. TR 86-96. He indicated that
Derik Morgan, the Honda dispatcher, would know most about their
assignments and schedules. TR 84.
Mr. Morgan, apparently respondent's principal witness,
testified he started at DeLon on August 2, 1988, and worked a
year and a half as an Oldsmobile courtesy driver, and a year as
a Honda courtesy driver. He then became a lube technician for a
year, and is now a service dispatcher at Honda. TR 106, 107. He
testified that after he became Honda's service dispatcher, his
basic duties were to "answer phone calls, dispatch the work to
technicians, and properly get people picked up in the courtesy
cars and make sure afl the cars are cleaned -- by the time the
customer picks up their [sic] vehicle." TR 108. He said that he
was most familiar with the courtesy drivers, knows all three
minors involved here, and that they were lot attendants who
"occasionally" performed other chores. TR 108. He said the
three minors might be used as courtesy drivers "two, three times
a day. It could nothing in a month." TR 111. He described the
written statements of Allen and Welliver as inaccurate, and said
that boys preferred to be considered drivers rather than lot
attendants. TR 114, 115.
Mr. Morgan said that in all its divisions, DeLon employed
only four persons who were designated as courtesy drivers. These
designated courtesy drivers washed cars when they were not
driving. When a driver was needed in the Honda service
department and the regular Honda driver(s) was unavailable, Mr.
Morgan said he would first try to get a regular driver from one
of the other divisions. If none were available, he would try to
transport a customer in a taxi paid for by DeLon. But when he
could not get prompt taxi service, he would then request that
one of the lot attendants drive the courtesy car. He said that
each time he did that, he had to specifically ask permission
from either the Honda service manager, Mr. Anderson, or DeLon's
overall service boss, Mr. Jacobsen. TR 110, 111, 118. I found
it noteworthy that Mr. Morgan was not required to ask anyone on
the sales side, where the boys were supposedly employed, whether
he could have one of the lot boys to drive a customer.
The testimony that Allen, Walls and Welliver worked on the
sales side, taken together with the testimony that they were
supervised by Jacobsen, and Mr. Morgan's testimony, leave me with
the impression that there was considerable blurring of the line
between the lot boys on the sales side and the courtesy drivers
on the service side. It is clear that both lot boys and courtesy
drivers did pretty much the same work, i.e., wash cars and drive
courtesy cars, and received equal pay. Although the distinction
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between lot boys and courtesy drivers was admittedly never made
in respondent's employment records or other contemporaneous
documents of the DeLon firm, respondent's witnesses stressed at
the hearing that the primary function of lot boys was car
washing, and driving was secondary, while the priorities of
courtesy drivers' functions were reversed. Thus, even if I
accept that Allen, Welliver and Walls were designated as lot boys
throughout their employment, I must find that driving cars was
one of their duties, albeit a secondary one.
The most telling piece of evidence before me is the Walls
accident report filled out by Mr. Jacobsen himself, which listed
Walls' "occupation" as courtesy driver. PX 6. Because that is
consistent with the written statements of the minors, and the
office manager's admission to Mr. Dewey, were it necessary to do
so I would have to find that the weight of the evidence here
suggests that the three minors were employed as either part time
or full time courtesy drivers. But such finding need not be
made. While respondent's witnesses were at pains to say that the
boys drove courtesy cars only occasionally, it is clear that
whatever their job designation, Allen, Walls and Welliver were
required to perform two principal functions, wash cars and drive
courtesy cars, and were assigned to either task as needed. In
the context of the statute and its purpose to protect minors
from the hazards of highway driving, I construe "occasional" to
mean infrequently and only under extraordinary circumstances, and
"incidental" to mean a minor part of the overall job. Given the
hour of Walls' accident, the testimony of respondent's witnesses
that the admittedly designated courtesy drivers began work about
7:00 a.m. and quit around 3:00 p.m., Allen's statement which
said that he drove after the other drivers left around 3:00 p.m.,
and all other evidence, I conclude that Allen, Walls and Welliver
regularly drove courtesy cars, especially in the late afternoon
when most customers needed to be picked up to reclaim their cars
from the service department. The evidence here persuades me that
the three young men drove courtesy cars as part of their
ordinary duties, that driving on public roads was a significant
and a routine part of their daily work, and not "occasional and
incidental" to it.
Since the amount of the fines were calculated pursuant to a
schedule, and since the respondent does not appear to be
challenging the propriety of the amounts, I find that the fines
assessed by the Wage and Hour Division were in all respects
proper.
ORDER
The determination of the Administrator and the District
Director of the Wage and Hour Division of the U.S. Department of
Labor issued to respondent DeLon Oldsmobile Company is hereby
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affirmed in all respects. The civil money penalties for three
separate violations with respect to the following individuals and
in the following amounts are affirmed:
1. Benton Allen $1000
2. Michael R. Welliver $1500
3. William R. Walls $5000
Total $6500
ALEXANDER KARST
Administrative Law Judge
