Peter J. Brennan, Secretary of Labor, United Statesdepartment of Labor, Plaintiff-appellant, v. Deel Motors, Inc., D/b/a Deel Ford, and R. L. Nunn,individually, Defendants-appellees, 475 F.2d 1095 (5th Cir. 1973)

In this action, the Secretary of Labor appeals from the judgment of the district court dismissing his claim for injunctive relief under Sec. 17 of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1971), against the appellees, Deel Motors, Inc. and its vice president, Robert L. Nunn. The basis for the claimed relief is the alleged failure of the appellees to pay overtime wages as required by the Act to certain of their employees. This is a test case and there appear to be no controlling precedents except cases dealing with the rules of statutory construction. After a careful examination of the facts and the legal arguments presented, we find that the lower court properly disposed of this case and therefore affirm.

The pertinent facts are undisputed and may be summarized with brevity. Appellee, Deel Motors, Inc., a Florida corporation, is a franchised automobile dealership engaged in selling new and used cars, automobile parts, and mechanical services. Appellee, Nunn, is a company vice president, responsible for implementing the company pay plans for its various employees.

Part of Deel's staff consists of four employees variously titled as "service writers", "service advisors", or "service salesmen." These service salesmen work directly with customers co-ordinating the sale of numerous goods, services, and mechanical skills provided by the appellees. The service salesmen diagnose each customer's problem with his automobile and then refer the car to an appropriate department within appellees' business operation for needed repairs or additional equipment desired. They monitor the work while in progress, keeping track of the parts or additions used, and then determine whether a satisfactory job has been done.

When the Secretary's investigation of Deel began, these salesmen were compensated by a weekly wage and a percentage commission on each service order written. Additionally, commissions termed "spiffs" were given service salesmen who sell certain products and services being promoted by the appellee Deel. Presently, pending outcome of this litigation, the salesmen are being paid on a straight commission basis plus "spiffs."

The Secretary contends that these employees fall within Sec. 7 of the Act, 29 U.S.C. § 207 (1971), and are therefore entitled to overtime premium pay. However, the real dispute presented by this appeal is whether the general overtime premium pay requirements of Sec. 7 are made inapplicable to the present fact situation by the exemption found in Sec. 13(b) (10), 29 U.S.C. § 213(b) (10) of the F.L.S.A. This exemption from the general overtime premium pay provisions applies to:

any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles . . . if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to the ultimate purchasers.¹ 

We feel that the best interpretation of this section calls for the inclusion of these service salesmen within the scope of this exemption.

The Secretary contends that the overtime exemption is limited to salesmen of the vehicles, while appellees counter that such language encompasses all salesmen employed by an automobile dealership. Both parties have presented lengthy arguments as to the Congressional intent in the enactment of Sec. 13(b) (10) leading to contradictory conclusions.²  We feel that appellees have presented the better reasoned interpretation of the section and that a common sense interpretation and application of this exemption mandates inclusion of service salesmen within its scope.

First, there is no dispute of the fact that these four salesmen are "employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to the ultimate purchasers," as required by the last clause of Sec. 13(b) (10). Second, these service salesmen are functionally similar to the mechanics and partsmen who service the automobiles. All three work as an integrated unit, performing the services necessary for the maintenance of the customer's automobile. The mechanic and partsman provide a specialized service with the service salesman co-ordinating these specialties. Each of these service employees receive a substantial part of their remuneration from commissions and therefore are more concerned with their total work product than with the hours performed.

Sec. 13(b) (10) exempts from the overtime pay requirements those employees of automobile dealerships who are "primarily engaged in selling or servicing" the vehicles. In the absence of clear intent to the contrary, we can not assume that Congress intended to treat employees with functionally similar positions differently, especially when the exemption by its own terms refers to "any salesman . . . engaged in selling or servicing automobiles . . ." This is exactly what a service salesman does. They promote and attempt to sell the goods and services provided by Deel. Their remuneration is substantially based on their success in these endeavors. They openly solicit business by telephone and through written circulars to prospective and past customers. Their hours may be irregular, depending on the special needs of their customers.

The intended scope of Sec. 13(b) (10) is not entirely clear. Indeed, the Secretary's own interpretation of the coverage of that section is not altogether consistent.³  This court has previously recognized that this section "was not intended to be interpreted in the broad sense." See, Shultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 66 (5th Cir. 1970). However, exemptions are "drawn to meet particular needs." The enactment of Sec. 13(b) (10) was an implicit recognition by Congress of the incentive method of remuneration for salesmen, partsmen, and mechanics employed by an automobile dealership.⁴ 

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The judgment of the district court is affirmed.