LaPorte v. General Elec. Plastics

• Decision Date: 07 October 1993
• Docket Number: Civ. A. No. 91-D-1151-N.
• Citation: LaPorte v. General Elec. Plastics, 838 F.Supp. 549 (M.D. Ala. 1993)
• Parties: Bryan LaPORTE, et al., Plaintiffs, v. GENERAL ELECTRIC PLASTICS, BUSINESS GROUP BURKVILLE, ALABAMA, Defendant.
• Court: U.S. District Court — Middle District of Alabama

838 F. Supp. 549

Bryan LaPORTE, et al., Plaintiffs, v. GENERAL ELECTRIC PLASTICS, BUSINESS GROUP BURKVILLE, ALABAMA, Defendant.

Civ. A. No. 91-D-1151-N.

United States District Court, M.D. Alabama, N.D.

October 7, 1993.

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John W. Kelly, III, John E. Pilcher, Selma, AL, for plaintiffs.

Richard H. Gill, J. Fairley McDonald, III, Montgomery, AL, for defendant.

MEMORANDUM OPINION AND ORDER

De MENT, District Judge.

Now before the court is defendant's motion for summary judgment, filed July 27, 1992, to which the plaintiffs responded on September 1, 1992. The defendant supplemented its brief on October 9, 1992. Plaintiffs filed a cross-motion for summary judgment on October 9, 1992, to which the defendant responded on October 13, 1992. For the reasons discussed below, the court finds that defendant's motion is due to be granted in part and denied in part and that plaintiffs' motion is due to be denied.

JURISDICTION

Jurisdiction is proper under 28 U.S.C. § 1331. Personal jurisdiction and venue are not contested.

FACTS

General Electric Company (GE), operates a facility for the manufacture of plastics which is located in Burkville, Alabama. The facility, which manufactures a plastics product known as "Lexan," has been operating around the clock since its opening.

The plaintiffs are either maintenance mechanics or instrument electricians ("I/Es")¹ who are working or who have worked at the Burkville facility.² They are hourly employees and considered by GE to be "nonexempt" employees. Nonexempt status means that a worker is not exempt from the minimum wage and other requirements of the FLSA. From 1987 to 1991, the plaintiffs worked a 40-hour week, which consisted of five 8-hour days. From 1991 forward, the plaintiffs have worked a 40-hour week which consists of four 10-hour days. When hiring new employees, GE informs its potential employees that they will be expected to work overtime.

In 1987, GE initiated a practice³ at the facility which required the plaintiffs to be "on call" at all times so that if equipment at their plant needs maintenance or repair, the manager can call them and get the equipment fixed as soon as possible. The employees are not compelled to report to any particular location in order to wait for incoming calls, but are required to wear paging devices. Upon receiving a page, the GE employees must phone the "team lead"⁴ as soon as possible after receiving the page. The team lead and the person called are supposed to make an effort to resolve problems over the phone so that the employee does not have to report to the Burkville facility.

The plant managers generally plan the on-call schedules a year in advance. The pager is rotated among the maintenance mechanics and the I/Es on a periodic basis, each turn lasting at least one week. The amount of time between rotations varies with the different job descriptions. One person, Ivey, remains on call at all times. The others are on call from periods ranging from every other week to once every five weeks.

The plant operations team keeps track of the employees who are currently carrying the pager. If the person assigned the pager does not respond or cannot be located, the team lead will call another. Failure to respond can result in reprimands or other forms of discipline which can affect the employee's work record. However, such discipline is rarely imposed.

The team lead will occasionally call a person other than the one to whom the pager was assigned if he or she has need of that person's particular expertise. In this situation, a response from the employee is apparently optional.

Each call can last anywhere from five minutes to twenty minutes. In many cases, the "call" is really a series of calls, as the team lead implements the employee's suggestion, finds that it does not solve the problem and then calls back. At that point, the employee and the team lead may have another phone conference, or the team lead may decide to call the employee back to the facility.

While on call, the plaintiffs testified that they went hunting and fishing, attended technical school, held second jobs, worked in outside businesses, went to church or other religious services, visited with friends and family, and were able to arrange their schedules so that they could take advantage of their accrued vacation time. (See Carnley Dep. at 77, 80-81; Johnson Dep. at 49; May Dep. at 45-47; Phillips Dep. at 62; Shirley Dep. at 66, 72; Traywick Dep. at 72-73). Essentially, the employees are free to do what they want and to go where they want, as long as they remain within pager range. In fact, they are allowed to travel outside the range of the paging device as long as they leave a phone number where they can be reached. An employee who lives a long way from the Burkville facility or one who might have to repair a complex piece of machinery will most likely refrain from drinking heavily or taking drugs in quantities sufficient to impair his or her performance, although several employees have admitted that they drink moderately when on call. There are no other restrictions, except those mandated by common sense and good judgment.

The on-call employees are paid whenever they return to the plant in response to a page.⁵ They receive a minimum of 4 hours pay no matter how swiftly they resolve the problem. They also receive overtime when the problem occurs on a holiday or a weekend or when the problem takes a long time to correct. However, they are not compensated for time spent on call, for time spent on the phone with the team lead trying to solve the problem, or for time spent en route to and from the Burkville facility when answering a call.

GE does not maintain records of the phone calls made by the team leaders, although it does have records of the actual callbacks. Due to the differences in schedule, it is difficult to generalize about the frequency with which employees are called back to the facility to perform repairs. In no case does it appear that an employee was called back to the facility more than once per week.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court's function at this stage of the case is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

DISCUSSION

The plaintiffs argue that they are entitled to overtime compensation for the time spent on call. In the alternative, they argue that, at the very least, they should be compensated for the time spent on the phone with the team lead and for the time spent travelling to and from the Burkville facility.

A. On-Call Time

The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq. requires employers to pay overtime to employees who work more than forty hours per week. 29 U.S.C. § 207(a)(1) (1993). The plaintiffs claim that they are at work while they are on call and that they are entitled to overtime compensation for the time spent on call.

The Supreme Court has held that the time an employee spends waiting to work is compensable if the waiting time is spent "primarily for the benefit of the employer and his business." Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944) (citation omitted). The Court has described the distinction between compensable and noncompensable time in the following manner: if the employee was "engaged to wait," then he or she is entitled to be compensated for that time, but if the employee was "waiting to be engaged," then the employer is not obligated to pay. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). While the Court has not established a rigid formula to determine when "waiting time" is overtime, most courts have considered two factors: (1) whether the employee was free to engage in personal activities and (2) whether there were any agreements between the parties. Owens v. Local No. 169, Association of Western Pulp and Paper Workers, 971 F.2d 347, 350 (9th Cir.1992).

In most cases, the determination will be heavily factual, dependent upon all the circumstances of the case. Wantock, 323 U.S. at 133, 65 S.Ct. at 168. However, as the Eleventh Circuit noted in Birdwell v. City of Gadsden, 970 F.2d 802, 807 (11th Cir.1992), "whether a certain set of facts and circumstances constitute work for purposes of the FLSA is a question of law." Here, the parties agree on the contours of the on-call program, enabling the court to decide as a matter...