Crooker v. Sexton Motors, Inc.

• Citation: 469 F.2d 206
• Decision Date: 02 November 1972
• Docket Number: No. 72-1183.,72-1183.
• Parties: Roger W. CROOKER, Plaintiff, Appellee, v. SEXTON MOTORS, INC., Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

469 F.2d 206 (1972)

Roger W. CROOKER, Plaintiff, Appellee, v. SEXTON MOTORS, INC., Defendant, Appellant.

No. 72-1183.

United States Court of Appeals, First Circuit.

Argued September 6, 1972.

Decided November 2, 1972.

Kevin F. Sullivan, Nashua, N. H., with whom Sweeney, Sweeney & Sullivan, Nashua, N. H., was on brief, for appellant.

John P. Griffith, Nashua, N. H., with whom Hamblett, Kerrigan, LaTourette & Lopez, Nashua, N. H., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and HAMLEY,^* Circuit Judges.

HAMLEY, Circuit Judge.

Roger W. Crooker brought this action against his former employer, Sexton Motors, Inc. (Sexton), to recover unpaid overtime compensation for services rendered to Sexton. Crooker asserted district court jurisdiction under section 7(a)(1) and 16(b) of the Fair Labor Standards Act (Act), 29 U.S.C. §§ 207(a) (1) and 216(b).¹ Sexton defended on the ground that it was exempt from the provisions of 29 U.S.C. § 207, pertaining to maximum hours, by reason of the transportation exemption contained in section 13(b) (1) of the Act, 29 U.S.C. § 213(b)(1).²

The parties stipulated that the amount of overtime due, if any, amounts to $1,125, and filed cross-motions for summary judgment. An evidentiary hearing was held at which a genuine issue of material fact developed concerning the number of times Crooker drove in interstate commerce for Sexton in connection with his employment. Accordingly, the district court did not specifically act upon the motions for summary judgment, and apparently entered judgment upon the basis of a trial on the merits.

The district court entered judgment for Crooker in the amount of $1,125 plus liquidated damages in the same amount plus reasonable attorneys' fees and costs in the amount of $701.64, for a total of $2,951.64. The district court held that the exemption contained in 29 U.S.C. § 213(b) (1) did not apply because: (1) even on defendant's testimony (by Mr. Sexton) that Crooker made a business trip once a week from Sexton's place of business at Nashua, New Hampshire to various points in Massachusetts, this "would not be a substantial part of the plaintiff's activities and could have no real effect on safety or health," and (2) the extent to which Crooker's employment activity affected the safety of interstate motor operations was de minimis.

Sexton appeals, urging in effect that the district court failed to apply the correct test in determining whether the 29 U.S.C. § 213(b) (1) exemption applies and that, under the facts, the de minimis is principle is inapplicable.

Sexton is engaged in interstate commerce at Nashua, New Hampshire. It there operates an automobile dealership with a service department and body shop. Crooker started to work for Sexton in October of 1968 and continued this work through the week of August 4, 1971. His primary duty was to clean and polish cars. However, on occasion, Sexton sent him to various places in Massachusetts, all within a radius of sixty miles of the place of business, to take delivery of new or used cars, or automobile parts, for transportation to Nashua. During all of his employment Crooker received compensation at the straight time rate of three dollars an hour. He received no compensation at overtime rates although he worked an average of a little over two hours a week in excess of forty hours.

Neither side was able to produce any records with regard to the number of interstate business driving trips Crooker took, or the number of hours in which he engaged in interstate driving. Crooker had stated, in pretrial admissions, that he had made as many as, if not more than, four such trips per month. In an affidavit supporting his motion for a summary judgment, Crooker reduced this to an interstate trip no more than once every other week on the average. At the trial, Crooker further reduced this to only ten or eleven interstate trips during the thirty-four months of his employment with Sexton.

Richard J. Sexton, president of defendant corporation, testified that Crooker made an interstate driving trip almost every week during his employment. The district court did not attempt to resolve this factual issue, but held that a decision for the plaintiff was appropriate, even assuming the correctness of Mr. Sexton's testimony as to the amount of interstate driving done by Crooker.

If, under this evidence, the Secretary of Transportation, pursuant to 49 U.S.C. § 304(a) (3), had the power to establish qualifications and maximum hours of service with respect to Crooker's interstate driving for Sexton, Crooker is not entitled to the overtime compensation benefits provided by 29 U.S.C. § 207(a) (1). As the Supreme Court pointed out in Levinson v. Spector Motor Service, 330 U.S. 649, 661, 67 S. Ct. 931, 91 L.Ed. 1158 (1947), this interaction of these two statutes results from the policy of Congress to preserve intact the federal safety program for interstate motor carriers. The courts are to give full effect to the safety program even to the corresponding exclusion of certain employees from the benefits of the compulsory overtime pay provisions of the Fair Labor Standards Act. Levinson, 330 U.S. at 662, 677, 67 S.Ct. 931.

Without doubt, the Secretary of Transportation had the power to establish qualifications and maximum hours of service applicable to Crooker if, under the evidence, a substantial part of Crooker's interstate activities affected the safety of interstate motor carrier operations. Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 91 L.Ed. 1184 (1947); Levinson, 330 U.S. at 673-674, 681, 685, 67 S.Ct. 931.

In deciding whether a substantial part of Crooker's interstate activities affected the safety of interstate motor carrier operations, we are not here concerned with the perplexing problem of whether activities incidental to interstate motor transportation, such as that performed by loaders or automobile mechanics, affect the safety of operations. Here Crooker's only significant connection with Sexton's interstate operations was as a driver. It is obvious that one who drives a vehicle in interstate commerce directly affects the safety of such operations as long as he is driving.

The district court held that there was no exemption under section 213(b) (1) because Crooker's interstate trips did not constitute a substantial part of his total employment activity for Sexton. However:

"it is the character of the activities rather than the proportion of either the employee\'s time or his activities that determines the actual need for the Commission\'s power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment."

Levinson, 330 U.S. at 674-675, 67 S.Ct. at 944. See also, Morris v. McComb, 332 U.S. 422, 431-432, 68 S.Ct. 131, 92 L.Ed. 44 (1947). This construction of section 213(b) (1) puts "safety first, as did Congress." Levinson, 330 U.S. at 677, 67 S.Ct. 931.

This construction is not contrary to Pyramid Motor Freight Corp. v. Ispass. There the Court was concerned with the question of whether the substantial part of the employees' activities which affected interstate commerce also affected safety. 330 U.S. at 708-709, 67 S.Ct. 954. This is a different issue than the question of whether a substantial part of all the employee's activities interstate and intrastate, affect interstate commerce. While the Court in Pyramid Motors reserved the question of the Commission's power to prescribe requirements for employees whose interstate activities did not substantially affect safety, the total employment test was rejected just as it was in Levinson, 330 U.S. at 707, 67 S.Ct. 931.

The correct test for determining whether there is an exemption under section 213(b) (1) is set out in Yellow Transit Freight Lines, Inc. v. Balven, 320 F.2d 495, 498 (8th Cir. 1963):

"The factual question to be decided is not whether a substantial part of Balven\'s duties affected the safety of operations but, rather, whether any of Balven\'s duties had a substantial effect on motor vehicle safety." (Emphasis in original.)³

Crooker surely met this test. His interstate activity was as a driver, and thus directly affected the safety of operations. It follows that Crooker was subject to regulation by the Secretary of Transportation as to qualifications and maximum hours of service and thus was not entitled to the benefits of the overtime compensation provisions of the Fair Labor Standards Act.

In reaching this conclusion we have not overlooked Crooker's argument that such a strict reading of section 213(b) (1) unfairly withholds the overtime benefits of the Fair Labor Standards Act from employees who engage in a slight amount of activity affecting the safety of interstate operations. While this argument strikes a sympathetic chord, the fact is that it was made long ago by Mr. Justice Murphy, dissenting in Morris v. McComb, 332 U.S. 422, 438, 68 S.Ct. 131, 92 L.Ed. 44 (1947), and proves unavailing.

From what is said above, it follows that we are in disagreement with the district court's conclusion that the extent to which Crooker's interstate activity affected the safety of interstate motor operations was de minimis. See Morris v. McComb, 332 U.S. 422, 68 S. Ct. 131, 92 L.Ed. 44 (1947), where the carrier operated in...