Herman v. Hector I. Nieves Transp., Inc., No. Civ. 96-2479JAF.

CourtU.S. District Court — District of Puerto Rico
Writing for the CourtFuste
Citation91 F.Supp.2d 435
PartiesAlexis M. HERMAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. HECTOR I. NIEVES TRANSPORT, INC., a corporation; and Hector I. Nieves Rivera, individually and as President; and Luz M. Rosendo De Nieves, individually and as Secretary and Treasurer, Defendants.
Docket NumberNo. Civ. 96-2479JAF.
Decision Date15 February 2000
91 F.Supp.2d 435
Alexis M. HERMAN, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
HECTOR I. NIEVES TRANSPORT, INC., a corporation; and Hector I. Nieves Rivera, individually and as President; and Luz M. Rosendo De Nieves, individually and as Secretary and Treasurer, Defendants.
No. Civ. 96-2479JAF.
United States District Court, D. Puerto Rico.
February 15, 2000.

Page 436

Fidel A. Sevillano-Del-Rio, U.S. Attorney's Office District of P.R., Civil Division, Hato Rey, PR, James A. Magenheimer,

Page 437

U.S. Department of Labor, Office of the Solicitor, Reg. II, New York City, Jane Snell-Brunner, U.S. Dept of Labor, New York City, for Robert B. Reich, Secretary of Labor, as Secretary of Labor, plaintiff.

Bartolo Rodriguez-Flores, Caguas, PR, Eric Alvarez-Feliciano, San Juan, PR, for Hector I. Nieves Transport, Inc., defendant.

OPINION AND ORDER

FUSTE, District Judge.


On December 2, 1996, Plaintiff, Alexis M. Herman, Secretary of Labor for the United States Department of Labor, filed suit pursuant to the Fair Labor Standards Act of 1938 ("the FLSA" or "the Act"), 29 U.S.C. §§ 201-219 (1994), against Defendants, Héctor I. Nieves Transport, Inc. ("Nieves Transport"); Héctor I. Nieves-Rivera ("Nieves"), individually and as president of Nieves Transport; and Luz M. Rosendo de Nieves ("Rosendo"), individually and as secretary/treasurer of Nieves Transport, for allegedly violating the overtime compensation and record-keeping provisions of the Act, 29 U.S.C. §§ 207(a) and 211(c).

On January 15, 1999, we granted Plaintiff's motion for partial summary judgment and found that Defendants were not exempt from paying overtime compensation under section 13(b)(1) of the FLSA, 29 U.S.C. § 213(b)(1).

In a bench trial, we tried both alleged issues. At the close of trial on September 13, 1999, we granted Plaintiff's motion to conform the pleadings to the evidence presented. Subsequently, Plaintiff amended the pleadings to add violations of the minimum-wage provisions of the Act, 29 U.S.C. § 206.

Upon consideration of the evidence, the arguments of the parties, and the record, we make the following findings of fact and rulings of law.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF JUDGMENT

I. FINDINGS OF FACT

A. Defendants as Employers of Truck Drivers

1. Defendant Nieves Transport is a corporation duly organized under the laws of the Commonwealth of Puerto Rico and is engaged in the business of transporting goods, including petroleum commodities, by truck.

2. Defendant Nieves Transport regulates the employment of all persons employed by them and acts, directly or indirectly, in the corporation's interest with respect to those employees.

3. Defendant Nieves, residing within the jurisdiction of this court, is president of Nieves Transport, actively controls and manages this corporation by regulating the employment of its personnel, and acts directly and indirectly in the interest of Nieves Transport in relation to its employees. By Defendant Nieves' own admission, he founded Nieves Transport and continues to direct its operations.

4. Defendant Rosendo, residing within the jurisdiction of this court, is secretary and treasurer of Nieves Transport, actively controls and manages this corporation by regulating the employment of its personnel, and acts directly and indirectly in the interest of Nieves Transport in relation to its employees.

5. Defendants are employers of the employees listed in the attached Appendixes A & B ("truck drivers" or "employees"), all of whom were or are employed as truck drivers for Defendants.1

Page 438

6. Between June 20, 1993 and the present, Defendants have employed over one-hundred truck drivers.

7. Defendants, on average, employ approximately twelve truck drivers at any given time.

8. Defendants have employed personnel in commerce, as defined in 29 U.S.C. § 203(b),2 in a business which, at all relevant times, has had an annual gross volume of sales of not less than $500,000.

B. Nature of Business

9. Defendants employ truck drivers who regularly drive Defendants' trucks and transport materials, which oftentimes originate from various states within the United States, between points in Puerto Rico.

10. All deliveries made by Defendants' employees are between two locations within Puerto Rico.

11. The materials which Defendants' employees regularly deliver by truck include, inter alia, petroleum products, glass bottles, cardboard boxes, raw materials, freight of all kinds, food stuffs, and lumber.

12. Truck deliveries utilize either a container truck, consisting of a truck cab and an attached rectangular inter-modal container, or a tanker truck, consisting of a truck cab and an attached tanker. Container trucks transport all cargo except petroleum products; tanker trucks transport petroleum products.

13. Concerning container trips:

(a) In a container trip, an employee drives one of Defendants' truck cabs from Nieves Transport's truck yard to a pre-established location. When the driver reaches the destination, he attaches an inter-modal container to the truck cab and delivers the inter-modal container to another location, including, but not limited to, Navieras, Sealand, Puerto Nuevo, TMT (Isla Verde), Sea Barge (Isla Grande), and Puerta de Tierra.

(b) The customers to whose facilities the employees transport the containers include Owens-Illinois, APA World Transport, Goya, Casa de las Escaleras, and Futones.

(c) If the inter-modal container the driver has taken to the customer's facility is empty, the driver exchanges the empty container for a full one, waits while the empty container is filled, or leaves the empty container at the facility. If the employee exchanges the container or waits for the empty container to be filled, once he has a full container, he attaches it to the truck's cab and drives the truck to another client's location, where he leaves the full inter-modal container, replaces it with an empty container, and begins the whole process again.

(d) If the inter-modal container the driver has taken to the customer's facility is full, the driver exchanges it for an empty one, waits while the full container is emptied, or leaves the full container at the facility. If the employee exchanges the container or waits for the full container to be emptied, once the container is empty, he attaches it to the truck's cab and drives the truck to another client's location, where he exchanges the empty container for a full one and begins the whole process again.

14. Concerning tanker trips:

Page 439

(a) An employee drives a truck cab with an empty tanker attached from Defendants' truck yard to a pre-established location, where the tanker is filled with bunker or diesel. After the tanker is filled, the driver delivers the contents to one of the harbors in Puerto Rico or to a customer's facility, where the tanker is emptied. Once the tanker is empty, the driver either returns to Defendants' truck yard or to one of the harbors or other petroleum distribution locations, where the tanker is again filled with bunker or diesel.

(i) The locations where the petroleum products are loaded include, inter alia, Gulf, Esso, Sun Oil, Caribbean Petroleum, Texaco, Harbor Fuel at Pier 8 or the Frontier Pier in San Juan, Shell, and Piers 6 and 9.

(ii) The locations where the petroleum products are delivered and the tankers emptied include, inter alia, ships in Ponce and Mayaguez, barges in San Juan, the municipal piers in Mayaguez and Ponce, Harbor Fuel, and Luis Ayala Colón in Ponce, as well as facilities of various customers including Serrallés, Abbot, Owens-Illinois, Starkist and Bumblebee, Carlos Ocasio, Haynes, Bristol, Upjohn, Eli Lilly, and Life Savers.

(b) When loading or unloading bunker or diesel, truck drivers almost always wait in line for a substantial amount of time behind other trucks which are also awaiting their turn to load or unload the petroleum product cargo they are carrying.

(i) The wait to load bunker or diesel is usually several hours long because of the number of trucks in front of Defendants' truck and because of the length of time it takes to load each of those trucks. The average number of trucks ahead of Defendants' truck is usually three. The time needed to load each of those trucks with the bunker or diesel averages over forty minutes.

(ii) The wait to unload bunker or diesel is also usually several hours long, again because of the number of trucks in front of Defendants' truck and because of the length of time it takes to unload each of those trucks. The average number of trucks ahead of Defendants' truck is usually four trucks. The time needed to unload the bunker or diesel from each of those tankers averages just over one hour.

(c) In addition, the tanker trips take a substantial amount of time because:

(i) The distances between loading and unloading are often great;

(ii) The bunker or diesel is a heavy product, and, consequently, the truck drivers must steer their vehicles with great caution and slow speed; and

(iii) The ship to be loaded with bunker often does not arrive on schedule.

(d) Defendants' employees work during the day and night while on bunker trips.

(i) The places to load and unload bunker and diesel can be open twenty-four hours a day to accommodate the transfer of the cargo.

(ii) Employees frequently arrive at a facility before it opens to secure a choice position in the line of trucks. These times can be as early as 1:00 A.M., as some petroleum distribution refineries open at 3:00 A.M.

(e) Defendants assign tanker trips on the basis of seniority.

(f) Despite the longer hours required, many employees prefer tanker trips to container trips because:

(i) Defendants pay more money for tanker trips than container trips; and

(ii) The employee only has to drive on the tanker trip, whereas a container trip requires that the driver also attach and detach the inter-modal containers as part of his duties.

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  • Solis v. A-1 Mortg. Corp., Civil Action No. 09-1265
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • March 21, 2013
    ...in the present action. Such a troubling track record warrants injunctive relief. See Herman v. Hector I. Nieves Transp., Inc., 91 F. Supp. 2d 435, 450 (D.P.R. 2000) aff'd, 244 F.3d 32 (1st Cir. 2001) (granting injunction "[i]n light of the long and offensive history of non-compliance, [d]ef......
  • Solis v. A-1 Mortg. Corp., Civil Action No. 09–1265.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • March 21, 2013
    ...resulting in the present action. Such a troubling track record warrants injunctive relief. See Herman v. Hector I. Nieves Transp., Inc., 91 F.Supp.2d 435, 450 (D.P.R.2000)aff'd,244 F.3d 32 (1st Cir.2001) (granting injunction “[i]n light of the long and offensive history of non-compliance, [......
  • Powell v. Carey Intern., Inc., No. 05-21395-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 1, 2007
    ...to truck drivers delivering milk where the compensation depended on the trip); see also Herman v. Hector I. Nieves Transport, Inc., 91 F.Supp.2d 435, 441-442 (D.P.R.2000) (applying § 778.112 to truck drivers delivering petroleum). Here, in addition to the abundance of Defendants' evidence r......
  • Al Stewart v. Loving Kindness Healthcare Sys., Civil Action No. 2:20-cv-1087-RJC
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 16, 2021
    ...of behavior violative of FLSA. Such a troubling track record warrants injunctive relief. See Herman v. Hector I. Nieves Transp., Inc., 91 F.Supp.2d 435, 450 (D. P.R. 2000) aff'd, 244 F.3d 32 (1st Cir.2001) (granting injunction "[i]n light of the long and offensive history of non-compliance,......
  • Request a trial to view additional results
14 cases
  • Solis v. A-1 Mortg. Corp., Civil Action No. 09-1265
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • March 21, 2013
    ...in the present action. Such a troubling track record warrants injunctive relief. See Herman v. Hector I. Nieves Transp., Inc., 91 F. Supp. 2d 435, 450 (D.P.R. 2000) aff'd, 244 F.3d 32 (1st Cir. 2001) (granting injunction "[i]n light of the long and offensive history of non-compliance, [d]ef......
  • Solis v. A-1 Mortg. Corp., Civil Action No. 09–1265.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • March 21, 2013
    ...resulting in the present action. Such a troubling track record warrants injunctive relief. See Herman v. Hector I. Nieves Transp., Inc., 91 F.Supp.2d 435, 450 (D.P.R.2000)aff'd,244 F.3d 32 (1st Cir.2001) (granting injunction “[i]n light of the long and offensive history of non-compliance, [......
  • Powell v. Carey Intern., Inc., No. 05-21395-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 1, 2007
    ...to truck drivers delivering milk where the compensation depended on the trip); see also Herman v. Hector I. Nieves Transport, Inc., 91 F.Supp.2d 435, 441-442 (D.P.R.2000) (applying § 778.112 to truck drivers delivering petroleum). Here, in addition to the abundance of Defendants' evidence r......
  • Al Stewart v. Loving Kindness Healthcare Sys., Civil Action No. 2:20-cv-1087-RJC
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 16, 2021
    ...of behavior violative of FLSA. Such a troubling track record warrants injunctive relief. See Herman v. Hector I. Nieves Transp., Inc., 91 F.Supp.2d 435, 450 (D. P.R. 2000) aff'd, 244 F.3d 32 (1st Cir.2001) (granting injunction "[i]n light of the long and offensive history of non-compliance,......
  • Request a trial to view additional results

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