Merrill v. Exxon Corporation, Civ. A. No. 72-H-1169.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: CARL O. BUE, Jr.
• Citation: 387 F. Supp. 458
• Parties: Glenn E. MERRILL et al., Plaintiffs, v. EXXON CORPORATION (Successor in Interest to Humble Oil & Refining Company), Defendant.
• Docket Number: Civ. A. No. 72-H-1169.
• Decision Date: 23 December 1974

387 F. Supp. 458

Glenn E. MERRILL et al., Plaintiffs,
v.
EXXON CORPORATION (Successor in Interest to Humble Oil & Refining Company), Defendant.

Civ. A. No. 72-H-1169.

United States District Court, S. D. Texas, Houston Division.

December 23, 1974.

387 F. Supp. 459

COPYRIGHT MATERIAL OMITTED

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Charles C. Orsburn, Bray, Ashley, Shaver, Sherbert, Orsburn & Browning, Houston, Tex., for plaintiffs

Robert L. Norris, Houston, Tex., for defendant.

MEMORANDUM AND OPINION

CARL O. BUE, Jr., District Judge.

Defendant has moved for summary judgment in Civil Action No. 72-H-1169 and Civil Action No. 72-H-1170, both of which cases present the same legal question: are newly hired employee-trainees entitled to receive overtime compensation under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., for time spent attending required classroom instruction conducted away from the job site after working hours? For the reasons stated herein, this Court answers the question in the negative. Accordingly, defendant's motion for summary judgment is granted in each case.

This question is one of first impression in this Circuit and has been considered by only one other circuit court.¹ This Court has jurisdiction based upon 28 U.S.C. § 1337. The cause of action is based on 29 U.S.C. § 216(b), for alleged violations of 29 U.S.C. §§ 206 and 207.

STATEMENT OF FACTS

Plaintiffs in No. 72-H-1169 are employees of Exxon Corporation, successor-in-interest to Humble Oil & Refining Company. Plaintiffs in No. 72-H-1170 are employees of Exxon Corporation, successor-in-interest to Enjay Chemical Company. All the members of each class are recent recruitees of defendant. They are hourly employees and are subject to the provisions of the FLSA, including the Portal-to-Portal Act, 29 U. S.C. §§ 251-262, with respect to minimum wages and overtime pay for their regular employment duties.

THE APPRENTICESHIP PROGRAM

Plaintiffs were trainees in a three-year apprenticeship training program, which included attendance at classes given at Lee College in Baytown, Texas. Attendance was required by defendant. The classroom training was undertaken in conjunction with the apprenticeship program and consisted of approximately 108 hours each year of attendance required in addition to plaintiffs' normal 40-hour work week at defendant's plants, either the oil refinery or the chemical plant, both of which are located in Baytown, Texas.

The apprenticeship program encompasses seven job classifications: boiler-maker, electrician, instrument technician, process operator, pipe fitter, rigger and machinist. Within each classification there are eight sub-classifications:

387 F. Supp. 461

apprentice first phase; apprentice second phase; apprentice second phase after six months; apprentice third phase; apprentice third phase after six months; apprentice fourth phase; apprentice fourth phase after six months; and full grade. The total apprenticeship training program lasts 8,320 hours, including 7,744 hours of on-the-job training and 576 hours of classroom instruction. See Defendant's Exhibit E, Letter from J. R. Barnes, Employee Relations Manager, Humble Oil & Refining Company, to Mr. Claude Gray, Bureau of Apprenticeship and Training, United States Department of Labor, March 1, 1968

The related classroom training required is described in Defendant's Exhibit J, "Process Technician Apprenticeship Standards for Baytown Refinery, Humble Oil & Refining Co.", formulated by Baytown Refinery, June 1, 1970. The Apprenticeship Manual indicates that the classroom training is intended to reinforce the apprentice's scientific education with six semesters of technical vocation courses from a practical refinery viewpoint. See Defendant's Exhibit J, supra at 6. The courses required to be taken at Lee College include: Industrial (Technical) Math 301; Industrial Instruments 302; Industrial Physics 301; Machinery 305; Industrial Chemistry 301; and Unit Operations 301. The first two courses are required in the first year of the apprenticeship, with 54 hours required in each course; the second two courses are required in the second year; and the latter two courses are required in the third year. Defendant's Exhibit J, supra at 13.

The classroom training program clause was one facet of the bargaining agreement reached between defendant and the Gulf Coast Industrial Workers Union on April 15, 1969. The agreement provided that each trainee would attend classes on his own time without compensation. See Article XXXV, § D.6 and Article XXXVIII, § F.7, Agreement of Defendant and Gulf Coast Industrial Workers Union. At all times pertinent to both of these causes, the Union represented the plaintiffs. Each of the plaintiffs in the class was hired subsequent to January 1, 1969, and is within the coverage of the agreement.

The apprenticeship and training programs promulgated by defendant and agreed upon in the collective bargaining agreement between defendant and the Union were approved by the Bureau of Apprenticeship and Training of the United States Department of Labor on March 4, 1968, see Letter from Claude Gray, Jr., Bureau of Apprenticeship and Training, to Defendant (March 4, 1968), and were also approved by the Texas Education Agency on March 15, 1968. See Letter from Henry Bobo, Texas Education Agency, to Defendant (March 15, 1968). Defendant pays the tuition for all employees enrolled in the Lee College courses.

Many of the plaintiffs received notification letters regarding the training program. See Plaintiffs' Answers to Defendant's Request for Admissions, # #1, 9, 10, 11, 14, 15, 16, 17, 20, 21-30, 34-37, 44, 46, 49-53, 55-57, 59, 60, 62-65, 67-70, 73-75, 77-110, 113-116, 119, 121, 124, 128-139, 141-144, 146-149, 151 and 153-158 (March 4, 1974). Most of the plaintiffs agreed to attend class, outside of regular working hours, without compensation from defendant. Id., ##159-237 (except ##189, 199, 200 and 219). Plaintiffs admit that the collective bargaining language cited by defendant is accurate regarding attendance in the classrooms of Lee College on the employees' own time and that all of defendant's proffered documents pertinent to these causes are genuine. See Plaintiffs' Amended Answers to Defendant's Request for Admissions of Fact and Genuineness of Documents at 7-8 ¶ 10 (November 12, 1973).

DEFENDANT'S CONTENTIONS

Defendant asserts that plaintiffs are clearly covered within the FLSA and the Portal-to-Portal Act. See Walling v. Portland Terminal Co., 330 U.S. 148, 150-152, 67 S.Ct. 639, 91 L.Ed. 809 (1947). As plaintiffs have admitted,

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they are bound by the bargaining agreement ratified between defendant and the Union and by the agreement provision which prescribes that no compensation shall be received for the classroom training at Lee College engaged in by trainees. The regulations of the Wage and Hour Administrator of the United States Department of Labor permit the exclusion of time spent at classroom training from the compensation of working time. 29 C.F.R. § 785.32.²

In consonance with the FLSA, defendant has formed an approved apprenticeship program in the classroom. The program qualifies within the § 785.32 regulation as beyond compensation, because it satisfies three requisites: (1) the bargaining agreement establishing the apprenticeship program contains no language stating that classroom attendance is compensable as hours worked and, indeed, contains a provision to the contrary; (2) the program meets the fundamental standards of the Bureau of Apprenticeship and Training of the United States Department of Labor; and (3) time spent in the program is not spent performing regular productive duties related to the job.

PLAINTIFFS' CONTENTIONS

Plaintiffs raise several contentions in opposition to demonstrate the compensability of time spent attending required classes: (1) that the Portal-to-Portal Act applies only to "threshold" or preparatory situations in the "twilight" area between the end of the employee's own time and work time at the beginning and/or end of the work day; (2) that the Portal-to-Portal Act does not apply to the vast majority of time in connection with the regular work shift; and (3) that the Portal-to-Portal Act does not address activities specifically and expressly required by the employer to be performed at a specific place and time.

Plaintiffs further contend that § 785.32 should not be binding in this case because other allegedly related regulations contradict any employer non-liability for compensation permitted in § 785.32. Plaintiffs contend that § 785.27³ and § 785.28⁴ should be applicable instead. Because attendance at the classroom training is not voluntary, plaintiffs contend that they should be compensated under the mandate of § 785.28.

Finally, plaintiffs contend that the apprenticeship agreement is different from the collective bargaining agreement so that each plaintiff would have to agree to be bound by the provisions of the apprenticeship agreement for the non-compensation provision to have effect.

387 F. Supp. 463

Since there is no evidence that each plaintiff signed such an agreement, it is urged that a fact issue is allegedly raised. See Plaintiffs' Reply Brief in Contravention of Defendant's Motion for Summary Judgment (September 3, 1974)

ABSENCE OF A FACTUAL ISSUE

While plaintiffs contend that discovery has not been productive of facts sufficient to allow summary disposition, this Court cannot agree. Sufficient uncontroverted facts have been established by the parties or admitted by plaintiffs to permit determination of the legal question presented. Indeed, the statement of facts contained in defendant's motion for summary judgment is sufficient to permit summary disposition. Plaintiffs have adopted defendant's statement of facts in replying to the motion. See Plaintiffs' Reply Brief in Contravention of Defendant's Motion for Summary Judgment at iii, "Statement...