Griffin v. Consolidated Foods Corp., C-C-83-703-M.

• Decision Date: 27 June 1984
• Docket Number: No. C-C-83-703-M.,C-C-83-703-M.
• Citation: 587 F. Supp. 921
• Court: U.S. District Court — Western District of North Carolina
• Parties: Leslie A. GRIFFIN, Plaintiff, v. CONSOLIDATED FOODS CORPORATION t/a Hanes DSD and L'Eggs, Defendant.

587 F. Supp. 921

Leslie A. GRIFFIN, Plaintiff, v. CONSOLIDATED FOODS CORPORATION t/a Hanes DSD and L'Eggs, Defendant.

No. C-C-83-703-M.

United States District Court, W.D. North Carolina, Charlotte Division.

June 27, 1984.

Shelley Blum, Sheely & Blum, Charlotte, for plaintiff.

John R. Wester and Brent A. Torstrick, Fleming, Robinson, Bradshaw & Hinson, Charlotte, for defendant.

FINAL ORDER OF DISMISSAL

McMILLAN, District Judge.

1. Background.

Plaintiff Leslie Griffin was employed by defendant Consolidated Foods as a route sales representative from 1973 until 1981. On August 24, 1983, plaintiff initiated this action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., seeking money allegedly owed her by defendant as overtime compensation for work performed in excess of statutory maximum hours. Defendant has moved the court for summary judgment on grounds that plaintiff's employment fell within the "motor carrier's exemption" from the overtime provisions of the Fair Labor Standards Act. A hearing was held on defendant's motion on March 5, 1984.

The Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1), provides that employers may not require employees covered by the Act to work in excess of forty hours per week unless such employees are compensated at no less than one and one-half times their regular hourly rate. However, 29 U.S.C. § 213(b) (the "motor carrier's exception") provides that "the provisions of § 207 of this title shall not apply with respect to — (1) any employee with respect to whom the Secretary of Transportation may prescribe requirements for — (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operations." 49 U.S.C. § 3102(b)(2). The term "motor private carrier" as used in 49 U.S.C. § 3102 is defined in 49 U.S.C. § 10102(15) as "a person, other than a motor carrier, transporting property by motor vehicle when —

(A) the transportation is as provided in section 10521(a)(1) and (2) of this title i.e., in interstate commerce;

(B) The person is the owner, lessee, or bailee of the property being transported; and

(C) the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise."

The focus of the inquiry in determining whether plaintiff's employment as a route sales representative was exempt from the requirements of the FLSA is whether the Secretary of Transportation had the power to establish qualifications and maximum hours of service for plaintiff's job, Brennan v. Schwerman Trucking Co. of Virginia, 540 F.2d 1200 (4th Cir.1976); this involves an analysis of the facts to determine whether plaintiff's job required her, as a motor vehicle driver, to transport goods in interstate commerce. If plaintiff's job falls within the category of employment which the Secretary of Transportation has the power to regulate, then the provisions of the FLSA are not applicable to plaintiff's employment, regardless of whether the Secretary has chosen to exercise that power. Morris v. McComb, 332 U.S. 422, 434, 68 S.Ct. 131, 136, 92 L.Ed. 44 (1947); Southland Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244 (1943).

2. The Facts.

The facts of this case are not in dispute. Defendant is in the business of manufacturing, marketing, and distributing L'Eggs panty hose. Plaintiff's job responsibility was to service defendant's accounts at retail establishments in the Charlotte, North Carolina, area by ordering, receiving and delivering defendant's product in a van provided by the company. The panty hose are manufactured in North Carolina, South Carolina, and New Mexico. They are then shipped to Alleo, North Carolina, where they are packaged with plastic manufactured in Texas, and cardboard manufactured in Virginia. The packaged product then moves from its point of assembly to defendant's "star" warehouse in Winston-Salem, North Carolina, and from there it is distributed to defendant's branch locations throughout the United States.

Defendant maintains two warehouses in Winston-Salem. From its star warehouse, defendant distributes its product to branch warehouses throughout the country; from its branch warehouse in Winston-Salem, defendant distributes its product to individual route drivers. The product remains an average of two weeks at the star warehouse before shipment to the branch warehouses, and remains an average of an additional two weeks at the branch warehouse in Winston-Salem before it is placed on trucks for delivery to retail stores. At the time of plaintiff's employment by defendant, the product delivered to stores in the Charlotte area originated from defendant's Winston-Salem branch. These stores are currently the responsibility of the Columbia, South Carolina, branch.

Defendant designs individual delivery routes, such as the one managed by plaintiff during her employment, with an eye toward developing a grouping of customer accounts that can be serviced by one route sales representative in a forty-hour week. No regard is given to city, county, or state boundaries as determining factors in the designing of routes. Thus, approximately twenty per cent of defendant's routes nationally cross state lines, and approximately thirty per cent of defendant's routes in the North Carolina and South Carolina area cross state lines. Defendant periodically re-allocates retail accounts within delivery routes, and alters the configuration of delivery routes. These route changes may result in the switching of routes between branches and regions, or the switching of branches from one region to another.

Defendant has tendered as evidence in support of its motion a current route sales map for the North Carolina and South Carolina areas. The map shows that two of the three routes serving the Charlotte, North Carolina, area also cross over into South Carolina. The uncontroverted evidence is that an individual route sales representative who works near a state boundary can reasonably expect to service retail stores in both states, or to cross state lines, as part of her work.

At the time that she was employed by defendant, plaintiff serviced only stores located in North Carolina, while she lived nearby in South Carolina. Her job responsibilities consisted of ordering the product, picking it up and loading it into the van provided her by the company, and transporting it to the stores that she serviced. At the retail stores, plaintiff inventoried, replenished, and arranged the stock of panty hose. After performing these duties, plaintiff was required to obtain the approval of the management of the stores she serviced before placing additional orders with defendant; plaintiff did not handle any payments for the product she delivered. In addition to delivering defendant's product and servicing her accounts, plaintiff also spent a substantial portion of her time doing required paper work at her home.

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