1998 -NMCA- 97, Johnsen v. Allsup's Convenience Stores, Inc., 18206
| Decision Date | 21 April 1998 |
| Docket Number | No. 18206,18206 |
| Citation | 963 P.2d 533,1998 NMCA 97,125 N.M. 456 |
| Court | Court of Appeals of New Mexico |
| Parties | , 136 Lab.Cas. P 33,732, 4 Wage & Hour Cas.2d (BNA) 1552, 1998 -NMCA- 97 Robert JOHNSEN, Plaintiff-Appellant, v. ALLSUP'S CONVENIENCE STORES, INC., Defendant-Appellee. |
¶1 Plaintiff Robert Johnsen (Employee) appeals the trial court's judgment entered against him after a bench trial. Employee sued for unpaid overtime wages against Defendant Allsup's Convenience Stores (Employer) pursuant to the Fair Labor Standards Act of 1938 (the Act), 29 U.S.C. Sections 201 to 219 (1997). Employee raises six issues on appeal: (1) the law of the case doctrine does not apply and the special order items were not transported in interstate commerce, (2) the trial court's findings were inconsistent with the judgment, (3) transportation of the compressor cores to the distributors was not an interstate shipment, (4) Employee did not perform duties affecting the safety of motor vehicle operations, (5) Employee's alleged interstate activities were de minimis, and (6) Employer acted in bad faith and against public policy. We hold that Employee's interstate activities were de minimis and therefore reverse the trial court's judgment. Because of our disposition, we need not address issues (1), (2), and (4).
¶2 Employee worked for Employer as a maintenance man. Employer did not compensate Employee at one and one-half times his hourly rate for hours worked in excess of a forty-hour work week. As a result, Employee sued Employer to recover overtime wages under the Act. Section 213(b)(1) of the Act exempts from the overtime requirement employees whose hours are subject to regulation by the Secretary of the Department of Transportation under the Motor Carrier Act, 49 U.S.C.A. § 3102 (West 1994) (current version at 49 U .S.C.A. § 31502 (West 1995)). The exemption includes motor carriers who transport between a place in a state and a place in another state. See 49 U.S.C.A. § 10521(a)(1)(A) (West 1995)(current version at 49 U.S.C.A. § 13501(1)(A) (West 1997)).
¶3 Prior to the bench trial, the trial court had granted summary judgment to Employer, holding that Employee was not entitled to receive overtime compensation because he transported goods in interstate commerce. Employee appealed that ruling, and this Court reversed and remanded the case for a determination of the extent of Employee's job in transporting certain equipment repair parts in interstate commerce. Johnsen v. Allsup's Convenience Stores, 119 N.M. 245, 251-52, 889 P.2d 853, 859-60 (Ct.App.1994). This determination was necessary because, if Employee's duties relating to transportation in interstate commerce were de minimis, the exemption to the Act would not be applicable. As a result, Employer would be required to pay overtime wages because Employer would not be exempt from such requirement. On remand, the trial court determined that Employee was not entitled to overtime wages on the basis that Employee's transportation of interstate goods was not an incidental part of his employment. This appeal followed.
¶4 Before discussing the merits of Employee's appeal, we address Employer's preliminary argument to uphold certain findings because of Employee's failure to attack them. Employer asserts that Employee did not contest Findings 13, 17, 19, 20, 26, 31, 37-39, 41, 43, 46, 47, and 51-54 made by the trial court. These findings included:
17. Johnsen's position is exempt from the overtime provisions of the Act because he transported goods in interstate commerce during the course of his employment, and as more than an incidental part of his employment.
....
20. Plaintiff, as more than an incidental part of his employment, transported goods in interstate commerce, or in continuation of interstate commerce.
....
43. The parts, equipment and fixtures which Plaintiff ordered from local wholesalers, which the wholesalers did not have in stock and had to be specifically ordered from out-of-state suppliers clearly remained in interstate commerce until Plaintiff's transportation of said items was completed.
....
51. The part of the Plaintiff's job that had to do with the transportation of goods in interstate commerce was a significant part of his duties because of its impact on refrigeration and cooling systems in the stores.
Employee did not expressly challenge these findings in his brief in chief. In his reply brief, however, Employee specifically contested Findings 17, 20, 31, 37, 39, 43, 46, 47, and 51-54.
¶5 Rule 12-213(A)(3) NMRA 1998 requires that an appellant's brief in chief contain a summary of proceedings. "A contention that a ... finding of fact is not supported by substantial evidence shall be deemed waived unless the summary of proceedings includes the substance of the evidence bearing upon the proposition[.]" Id. Although Employee technically violated this rule, we hold that Employee's briefs sufficiently argue against the trial court's findings and present the issues to allow a proper review on the merits. See Huckins v. Ritter, 99 N.M. 560, 561, 661 P.2d 52, 53 (1983) (). We address the pertinent findings generally in our discussion of the specific issues.
¶6 Employee argues that his retrieval of compressors stocked in an in-state warehouse was an act of intrastate commerce. He contends also that his return of salvageable compressor cores to the warehouse was not an interstate shipment. The trial court, however, concluded that "Plaintiff, as a regular part of his duties, was expected to and did transport goods in interstate commerce by motor vehicle on public highways; said goods were transported by Plaintiff prior to the end of the interstate nature of their transportation." We review this conclusion of law de novo. See Johnsen, 119 N.M. at 251, 889 P.2d at 859 (); Levenson v. Haynes, 1997-NMCA-020, p 13, 123 N.M. 106, 934 P.2d 300 ().
¶7 We hold that the trial court erred in concluding that Employee's transportation of the compressor cores was in interstate commerce. "[P]urely intrastate segments of transportation are not part of interstate commerce if the product comes to rest within the state." Johnsen, 119 N.M. at 249-50, 889 P.2d at 857-58. Most of the cores, before being picked up by Employee and after their return by Employee to the wholesaler, came to rest in the wholesaler's warehouse, which was located in New Mexico.
¶8 The cores were parts of compressors that could be re-used or re-manufactured. Employee returned the cores to the wholesaler, and the wholesaler purchased them by crediting Employer's account. After the purchase, the cores belonged to the wholesaler. The wholesaler shipped the cores to the manufacturer for credit. Employee testified that he did not know to whom the cores would later be shipped. These facts lead to the conclusion that Employee was engaged in intrastate transportation in delivering the cores. As a result, the cores should not have been considered by the trial court in determining the extent of Employee's involvement in interstate commerce.
¶9 Employee argues that his activities in interstate commerce were de minimis. As we noted previously, "[i]f the duties Employee performed relating to safety or interstate commerce were de minimis in relation to his other duties, then the ... 'motor carrier exemption' to the [Fair Labor Standards] Act is not applicable." Johnsen, 119 N.M. at 251, 889 P.2d at 859. Employee contends that the trial court erred in finding that he spent at least 3-4 percent and up to 10 percent of his time in the transportation of interstate goods.
¶10 Unless the trial court's findings or conclusions are clearly erroneous or deficient, we view the facts underlying the trial court's decision in the light most favorable to the prevailing party and disregard all evidence and inferences to the contrary. See Levenson, 1997-NMCA-020, p 13, 123 N.M. 106, 934 P.2d 300.
¶11 We hold that the trial court improperly calculated Employee's involvement in interstate transportation. The percentage of time Employee spent in interstate activity determines the extent of this involvement. See Johnsen, 119 N.M. at 251, 889 P.2d at 859. The trial court found that:
48. Plaintiff transported goods in interstate commerce on the public highways of New Mexico at least three to four percent (3 to 4%) and up to ten percent (10%) of the days he worked for Defendant.
49. Plaintiff was a driver for purposes of 29 C.F.R. Sec. 782.2, because he actually engaged in the transportation of goods in interstate commerce for Allsup's at least once in each four (4) months period during the course of his employment.
50. During the time periods in which Plaintiff worked for Allsup's, the wholesalers with which Plaintiff did business for Allsup's stocked at least a dozen (12) compressors valued on the average of over $900.00 each, for the direct benefit of Allsup's in anticipation of Defendant's on-going needs. The total value of these parts transported by Plaintiff in interstate commerce exceeded three to four percent (3 to 4%) and was at least ten percent (10%) of the value of the goods Plaintiff transported.
As we have already noted, the trial court incorrectly characterized compressors stocked by the wholesaler as interstate goods. In the...
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... ... See Kendrick v. Penske Transp. Servs., Inc., 220 F.3dPage 8 1220, 1227 (10th Cir. 2000) ... See 29 U.S.C. 255(a); Johnsen v. Allsup's Convenience Stores, Inc., 125 N.M. 6, 461, 963 P.2d 533, 538 (Ct. App. 1998 ... ...