or meals encountered enroute, suggestions for improving the
tour, an itemized account of all expenses, a list of
passengers and their addresses, a list of extra sightseeing
tours sold by the tour escort, a copy of each voucher used
enroute, a list of any cash collected for extra baggage or
accommodations, and a time sheet which ostensibly reflects the
number of hours worked during the course of the tour.
All of the activities performed by defendants' tour escorts
are described in considerable detail in paragraph 9 of the
Stipulation of Facts filed herein on July 24, 1963.
5. Defendants have considered as "hours worked" only the
time spent by their tour escorts in the physical performance
of enumerated tasks such as:
(a) working at depots prior to the departure of their
(b) making announcements and giving instructions on the
(c) checking tickets with conductors, pursers, and
(d) exchanging, reevaluating, and picking up transportation
tickets on certain tours,
(e) paying bills, charges, admissions, and issuing vouchers
covering enumerated items on the tours,
(f) transferring and counting baggage at depots,
(g) getting on and off trains, boats, or buses with baggage,
(h) checking tour members in and' out of hotels,
(i) seeing tour members off on sightseeing trips, and
(j) conducting certain specified "side trips" and "walks" on
6. Defendants have not considered or recorded as "hours
worked" the time spent by their tour escorts in performing the
(a) riding on trains, boats, buses, or other conveyances in
the company of members of their tour,
(b) accompanying members of their tour on scheduled
sightseeing tours where the lecturing is done by persons other
than the tour escort,
(c) accompanying members of their tour at scheduled
amusement or recreational facilities,
(d) awaiting the arrival and return of members of their tour
on scheduled sightseeing trips or at scheduled places of
entertainment and amusement,
(e) awaiting the arrival of members of their tour at
designated places enroute,
(f) arranging extra sightseeing or evening tours for members
of their tour,
(g) preparing reports covering their assigned tour for
transmission to defendants,
(h) traveling on behalf of defendants from the place of
termination of one tour to the place for beginning another
(i) attending defendants' escort school.
7. The time spent by the tour escorts in performing the
activities described in Findings of Facts Nos. 3 and 4,
hereof, exceeded 40 hours in many workweeks; the tour escorts
did not receive additional compensation as overtime for the
hours in excess of 40 in the workweek. At least for the time
spent in attending defendants' escort school, the tour escorts
received no wages.
CONCLUSIONS OF LAW
1. The Court has jurisdiction of the parties and the subject
matter of this cause of action pursuant to the provisions of
the Fair Labor Standards Act of 1938, as amended (52 Stat.
1060, as amended; 29 U.S.C. § 201 et seq.), hereinafter
referred to as the Act.
2. Each of defendants' male and female tour escorts
described in Finding of Fact No. 3, hereof, is an "employee"
of the defendants within the meaning of Sections 3(e) and 3(g)
of the Act. United States v. Silk and Harrison v. Greyvan
Lines, Inc., 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757;
Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473,
91 L.Ed. 1772; Goldberg v. Whitaker House Coop., 366 U.S. 28,
81 S.Ct. 933, 6 L.Ed.2d 100; Wabash Radio Corp. v. Walling,
162 F.2d 391 (C.A.6); Walling v. Sondock, 132 F.2d 77 (C.A.5),
certiorari denied, 318 U.S. 772, 63 S.Ct. 769, 87 L.Ed. 1142;
Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed.
1638; Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89
L.Ed. 1865; Armour& Co. v. Wantock, 323 U.S. 126, 65 S.Ct.
165, 89 L.Ed. 118.
3. Defendants' office employees and tour escorts, described
in Findings of Facts Nos. 2 and 3, inclusive, hereof, are
engaged in commerce and in the production of goods for
commerce within the meaning of Sections 3(b), 3(i), 3(j), 6
and 7 of the Act. Mitchell v. C. W. Vollmer & Co., Inc.,
349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. Lublin,
McGaughy & Associates, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d
243; Mitchell v. E. G. Shinner & Company, Inc., et al.,
221 F.2d 260 (C.A.7); Bell v. Porter, 159 F.2d 117 (C.A.7),
certiorari denied, 330 U.S. 813, 67 S.Ct. 1092, 91 L.Ed. 1267;
Mitchell v. Pilgrim Holiness Church Corp., 210 F.2d 879
(C.A.7), certiorari denied, 347 U.S. 1013, 74 S.Ct. 867, 98
L.Ed. 1136; Caserta v. Home Lines Agency, Inc., D.C.,
172 F. Supp. 409, affirmed 273 F.2d 943 (C.A.2); Donovan v. Shell
Oil Co., Inc., 168 F.2d 229 (C.A.4); Reck v. Zarnocay,
264 App. Div. 520, 36 N.Y.S.2d 394, 2 WH Cases 994, 1 WH Cases
1105; Mitchell v. Glader Corp., 31 Labor Cases § 70,225
(N.D.Ill.); Colbeck v. Dairyland Creamery Co., 70 S.D. 283,
17 N.W.2d 262 (S.Ct.S.D.) 5 WH Cases 74; Caminetti v. United
States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442; Mitchell v.
Aetna Finance Co., D.C., 144 F. Supp. 528, affirmed 247 F.2d 190
(C.A.1); Mitchell v. Kroger Co., 248 F.2d 935 (C.A.8); Durkin
v. Joyce Agency, Inc., D.C., 110 F. Supp. 918, affirmed per
curiam, Mitchell v. Joyce Agency, Inc., 348 U.S. 945, 75 S.Ct.
436, 99 L.Ed. 740.
4. The exemption provided by Section 13(f) of the Act is
inapplicable to a tour escort of defendants who, during a
particular workweek, performs services both in a workplace
within the United States and in a workplace within a foreign
country, such as Canada. Thus, when a tour escort of
defendants spends part of a workweek with a tour in the United
States, it makes no difference where the remainder of such
work in that week is performed; the tour escort is entitled to
the benefits of the Act for the entire week. Vermilya-Brown
Co., Inc., v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed.
76; Interpretative Bulletin, Title 29, Part 776, Code of
Federal Regulations, Section 776.7, footnote 20, page 6.
5. The exemption provided by Section 13(f) of the Act is
applicable to a tour escort of defendants during any workweek
in which the tour escort performs all of his work exclusively
in a foreign country. Vermilya-Brown Co., Inc., v. Connell,
supra; see United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10,
94 L.Ed. 3; Foley Bros., Inc., v. Filardo, 336 U.S. 281, 69
S.Ct. 575, 93 L.Ed. 680.
6. The exemption provided by Section 13(a)(2) of the Act
with respect to any employee employed by a retail or service
establishment is inapplicable to defendants' office employees
employed at defendants' Chicago office and to defendants' tour
escorts employed on Vanderbilt Better Tours. Travel Agencies
are classified in the transportation industry to which no
retail concept applies. Caserta v. Home Lines Agency, Inc.,
supra; Standard Industrial Classification Manual, Section
4721; Senate Report No. 145, 87th Cong., 1st Sess., p. 31,
U.S.Code Congressional and Administrative News 1961, p. 1620;
Interpretative Bulletin, Title 29, Part 779, Code of Federal
Regulations, Section 779.317.
7. Time spent by the tour escorts of defendants in
performing the activities described in Findings of Facts Nos.
3 and 4, hereof, and discussed in Findings of Facts Nos. 5 and
6, hereof, constitutes working time — "hours worked" —
compensable under the Act. These activities were performed for
the primary benefit and under the instructions, direction, and
control of defendants. Throughout the performance of each of
the aforesaid activities, the tour escorts were required by
defendants to be at designated places, and were expected by
defendants to perform specified activities. Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed.
1515; Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No.
123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949; Armour & Co. v.
Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Central
Missouri Telephone Co. v. Conwell, 170 F.2d 641 (C.A.8);
Handler v. Thrasher, 191 F.2d 120 (C.A.10); Skidmore v. Swift
& Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124; Goldberg v.
Willmark Service System, Inc., 215 F. Supp. 577, (D.Minn.),
affirmed Willmark Service System, Inc. v.: Wirtz, 317 F.2d 486
(C.A.8), certiorari denied 375 U.S. 897, 84 S.Ct. 170, 11
8. The rulings and interpretations of the Administrator,
Wage and Hour and Public Contracts Divisions, United States
Department of Labor, are entitled to great weight and the
Court may properly resort to them for guidance. United States
v. American Trucking Associations, 310 U.S. 534, 60 S.Ct.
1059, 84 L.Ed. 1345; Overnight Motor Transportation Co. v.
Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Skidmore
v. Swift & Co., supra; Roland Electrical Co. v. Walling,
326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Maneja v. Waialua
Agricultural Co., Ltd., 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed.
1040; Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed.
786. After giving due consideration to the Administrator's
Interpretative Bulletin, Part 785, and the enforcement policy
therein stated, the Court concludes that the following time
need not be counted as hours worked: bona fide meal periods of
30 minutes or more and bona fide regularly scheduled sleeping
periods of not less than 5 hours or more than 8 hours per day,
where an expressed or implied agreement is present; and bona
fide periods during which an employee is completely relieved
from duty and which are long enough to enable him to use the
time effectively for his own purposes. See Interpretative
Bulletin, Title 29, Part 785, Code of Federal Regulations,
Sections 785.16, 785.19, and 785.20-785.22, and cases cited
therein. Cf. Mitchell v. Greinetz, 235 F.2d 621, 61 A.L.R.2d
956 (C.A.10); Mitchell v. Turner, 286 F.2d 104 (C.A.5).
9. The defendants have violated Sections 6, 7, 11, 15(a)(1),
15(a)(2), and 15(a)(5) of the Act.
Let judgment be entered in accordance with the foregoing
Findings of Fact and Conclusions of Law.
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