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MARSHALL v. NEW HAMPSHIRE JOCKEY CLUB, INC.

No. 77-1037.

562 F.2d 1323 (1977)

F. Ray MARSHALL, etc., Plaintiff, Appellee, v. The NEW HAMPSHIRE JOCKEY CLUB, INC., et al., Defendants, Appellants.

United States Court of Appeals, First Circuit.

Decided September 9, 1977.

Attorney(s) appearing for the Case

Jack B. Middleton, Manchester, N. H., with whom Richard S. Snierson and McLane, Graf, Greene, Raulerson & Middleton, Professional Association, Manchester, N. H., were on brief, for appellants.

John K. Light, Jr., Washington, D. C., with whom Carin Ann Clauss, Sol. of Labor, Carl W. Gerig, Jr., Acting Associate Sol., Washington, D. C., Albert H. Ross, Regional Sol., Boston, Mass., and Jacob I. Karro, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, DOOLING, District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

In this appeal from a district court decision favorable to the Secretary of Labor,1 appellants assert that in 1973 and 1974 they were both exempt from the overtime provisions of the Fair Labor Standards Act (the "Act") by virtue of section 13(a)(3) which exempts,

"any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not

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