Baker v. Barnard Const. Co. Inc.

• Decision Date: 15 September 1993
• Docket Number: Civ. No. 93-140 JB.
• Citation: 863 F. Supp. 1498
• Parties: Rex BAKER, et al., Plaintiffs, v. BARNARD CONSTRUCTION CO. INC., et al., Defendants.
• Court: U.S. District Court — District of New Mexico

863 F. Supp. 1498

Rex BAKER, et al., Plaintiffs, v. BARNARD CONSTRUCTION CO. INC., et al., Defendants.

Civ. No. 93-140 JB.

United States District Court, D. New Mexico.

September 15, 1993.

J.E. Gallegos and David Sandoval, Gallegos Law Firm, Santa Fe, NM, for plaintiff.

Thomas J. Hynes, Hynes, Hale & Fortner, James L. Brown, Farmington, NM, David Brown, Poole, Kelly & Ramo, David A. Rammelkamp, Todd M. Stafford, Kelly, Rammelkamp, Muehlenwag, Lucero & Leon, Nicholas Noeding, Christopher M. Moody, Hinkle, Cox, Eaton Coffield & Hensley, Albuquerque, NM, John Schmidt & Deirdre O. Dexter, Conner & Winters, Tulsa, OK, David C. Davenport, Jr., Rodey, Dickason, Sloan, Akin & Robb, Santa Fe, NM, Gregory K. Hoskin & John T. Howe, Nelson, Hoskin & Farina, Grand Junction, CO, Dan A. McKinnon III, Marron, McKinnon & Ewing, Albuquerque, NM, Victor A. Titus, Titus & Gurley, Farmington, NM, Michael A. Ross, TIC Holdings, Inc., Steamboat Springs, CO, Richard A. Winterbottom, Stout & Winterbottom, Lisa M. Enfield, George R. McFall, William C. Scott, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, for defendants.

ORDER

BURCIAGA, Chief Judge.

THIS MATTER is before the Court on Defendant Four-Way Company's March 15, 1993, motion for summary judgment; Defendant Four-Four, Inc.'s March 25, 1993, motion for (partial) summary judgment; Defendant Davy McKee Corporation's March 29, 1993, motion to dismiss; Plaintiffs' April 5, 1993, motion for summary judgment as to Defendant Four-Way Company; Plaintiffs' April 7, 1993, motion for sanctions against Pioneer Contracting Company; Defendant Foutz & Bursum Construction Company's April 15, 1993, motion for summary judgment; Defendant TIC-The Industrial Company's April 15, 1993, motion to dismiss or alternatively, motion for more definitive statement; Plaintiffs' April 26, 1993, motion for summary judgment as to Defendant Four-Four, Inc.; Plaintiffs' May 7, 1993, motion for sanctions against TIC-The Industrial Company; Plaintiffs' May 7, 1993, motion for summary judgment as to Defendant Foutz & Bursum Construction Company; Defendant Four-Four, Inc.'s June 4, 1993, motion to amend its answer; Plaintiffs' June 8, 1993, motion for sanctions against Flint Engineering, Four-Four, Inc., Four-Way Company, Foutz & Bursum Construction Company, Pioneer Contracting, and TIC-The Industrial Company; and, Defendant Mt. West Fabrication Plants & Stations, Inc.'s June 18, 1993, motion for summary judgment. The Court having reviewed the record, the submissions of the parties and having heard the arguments of counsel and being otherwise fully advised in the premises and the Court having made its findings and conclusions in open court;

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that Defendant Four-Way Company's March 15, 1993, motion for summary judgment, be, and hereby is, denied.

IT IS FURTHER ORDERED that Defendant Davy McKee Corporation's March 29, 1993, motion to dismiss be, and hereby is, denied.

IT IS FURTHER ORDERED that Plaintiffs' April 5, 1993, cross-motion for summary judgment be, and hereby is, denied.

IT IS FURTHER ORDERED that Defendant Foutz & Bursum Construction Company's April 15, 1993, motion for summary judgment be, and hereby is, denied.

IT IS FURTHER ORDERED that Defendant TIC-The Industrial Company's April 15, 1993, motion to dismiss, or alternatively, motion for more definitive statement be, and hereby is, denied.

IT IS FURTHER ORDERED that Plaintiffs' April 26, 1993, cross-motion for summary judgment as to Defendant Four-Four, Inc. be, and hereby is, denied.

IT IS FURTHER ORDERED that Plaintiffs' May 7, 1993, cross-motion for summary judgment as to Defendant Foutz & Bursum Construction Company, be and hereby is, denied.

IT IS FURTHER ORDERED that Defendant Four-Four, Inc.'s June 4, 1993, motion to amend its answer be, and hereby is, granted.

IT IS FURTHER ORDERED that Plaintiffs' motions for sanctions against Pioneer Contracting Company, TIC-The Industrial Company, Flint Engineering, Four-Four, Inc., Four-Way Company, and Foutz & Bursum Contracting Company be, and hereby are, deferred until the motions to compel in this matter, currently before Magistrate Judge McCoy, are decided.

Further, the Court took under advisement Four-Four, Inc.'s motion for (partial) summary judgment as to Plaintiffs Leonard Mahan and Gerald Miller¹; and Defendant Mt. West Fabrication, Plants and Stations, Inc.'s June 18, 1993, motion for summary judgment. The following will constitute the Court's rulings as to those motions.

Defendant Four-Four, Inc. moved for summary judgment as to Count II (overtime compensation) of Plaintiffs Leonard Mahan, Denny Hensley, Gary Coon, and William Clarence's complaint. In their response brief Plaintiffs stated that they believed that Defendant's motion for partial summary judgment also applied to Plaintiff Gerald Miller, who opted-in to the lawsuit under 29 U.S.C. § 216(b) after Defendant moved for partial summary judgment. In their reply brief, Defendant concurred that its motion for partial summary judgment should also be considered as to Gerald Miller. The Court overlooked this in its rulings in open court and will now grant Defendant's motion for summary judgment as to Gerald Miller but will deny Defendant's motion for partial summary judgment as to Leonard Mahan.

A motion for summary judgment may be granted only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), and as a matter of law, must show entitlement to summary disposition beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980); Madison v. Deseret Livestock Co., 574 F.2d 1027, 1037 (10th Cir.1978). The Court must view the record in a light most favorable to the existence of triable issues. Exnicious v. United States, 563 F.2d 418 (10th Cir.1977).

Plaintiffs' complaint alleges that the wages they received from Defendant are not their true regular rate, and therefore, Defendant violated the overtime provision of the Fair Labor Standards Act (FLSA). Plaintiffs allege Defendant accomplished this by overcompensating Plaintiffs for rental of their welding rigs and correspondingly understating their wages as employees. Defendant claims it paid welders, who did not own welding rigs, the same wage rate as they paid Plaintiffs. Defendant claims this undisputed fact entitles them to summary judgment under Plaintiffs' regular rate claim.

29 U.S.C. § 207(a) requires employers to compensate employees at one-and-a-half times the regular rate for all hours worked over 40 hours in one week. The Supreme Court, in interpreting section 7(a), held that Congress intentionally left undefined the term "regular rate." Walling v. Helmerich, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944). Therefore, courts should carefully scrutinize "regular rate" designations to make sure employees are getting the full excess compensation called for under the Act. Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 463, 68 S.Ct. 1186, 1196, 92 L.Ed. 1502 (1948). While employers and employees are free to establish the regular rate at any point above the minimum wage as they see fit, "this freedom of contract does not include the right to compute the regular rate in a wholly unrealistic and artificial manner. ..." Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945).

Plaintiffs Clarence, Coon, Hensley, and apparently, Miller,² were all paid $10.75 an hour in wages. Plaintiffs did not dispute Defendant's claim that welders, without welding rigs, were also paid $10.75 an hour in wages. Instead Plaintiffs claim they were certified as highly skilled welders. Apparently the inference to be drawn is that the welders hired by Defendant, without welding rights, were not certified, or highly skilled, welders. However, Plaintiffs put forth no evidence to raise genuine issues of material fact on this point. Therefore, the only evidence before the Court is that Plaintiffs Clarence, Coon, Hensley and Miller were paid the same rate as welders whose wages were not under the "split-check" scheme. The Court finds there are no genuine issues of material fact that Plaintiffs Clarence, Coon, Hensley and Miller's wages of $10.75 an hour are anything but the "regular rate" under section 7(a) and, therefore, Defendant's motion for partial summary judgment is granted as to Plaintiffs Clarence, Coon, Hensley and Miller.

As to Plaintiff Mahan, the Court finds there are material issues of fact that his $8.00 wage was not the "regular rate." Defendant claims Plaintiff Mahan's statement in his affidavit that he was paid only $8.00 an hour in wages is unsubstantiated, and does not raise genuine issues of material fact. Defendant claims exhibit 2 to their response brief to Plaintiffs' cross-motion for summary judgment establishes beyond a reasonable doubt that Plaintiff Mahan was paid $10.75 an hour in wages as an employee. Without ruling on whether Defendant's wage records would entitle Defendant to summary judgment against Mahan, there is no exhibit 2 before the Court.³ Therefore, the Court denies Defendant's motion for partial summary judgment as to Plaintiff Leonard Mahan.

Defendant Mt. West moved for summary judgment against Plaintiff Hensley on all three of his claims under the FLSA. In their response brief, Plaintiff conceded that it had no claim for relief under 29 U.S.C. § 254 (Portal-to-Portal Act), regarding Plaintiff's claim for compensation for unpaid time spent loading and stocking his welding rig. Therefore, Plaintiff's only remaining claims is that he was not paid for travel time and that he was not paid...