Smith v. United Parcel Service, Inc., Civ. A. No. 2:95-0145.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Citation: 890 F. Supp. 523
• Decision Date: 05 July 1995
• Docket Number: Civ. A. No. 2:95-0145.
• Parties: Steven D. SMITH, et al., Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant.

890 F. Supp. 523

Steven D. SMITH, et al., Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant.

Civ. A. No. 2:95-0145.

United States District Court, S.D. West Virginia, Charleston Division.

July 5, 1995.

William L. Jacobs, Parkersburg, WV, for plaintiffs.

Gene W. Bailey, II and Daniel L. Stickler, Jackson & Kelly, Charleston, WV, for defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is defendant United Parcel Service, Inc.'s ("UPS") motion for partial dismissal, or alternatively for partial summary judgment. Plaintiffs have responded and UPS has replied. UPS has also moved to strike certain affidavits filed as exhibits to the plaintiffs' memorandum in opposition. For the reasons that follow, Defendant will be granted partial summary judgment.

Plaintiffs filed this action in the Circuit Court of Kanawha County, West Virginia, contending they are members of a class of employees of the Defendant who were denied wages wrongfully for overtime work they performed. Plaintiffs contend UPS's wage payment practices violate the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and the West Virginia Minimum Wage and Maximum Hours Standards Act for Employees, West Virginia Code § 21-5C-1, et seq. The Defendant timely removed the action to this Court, and now seeks to dismiss certain plaintiffs, specifically those who are employed as package drivers, feeder drivers, and mechanics. Defendant contends plaintiffs who are so employed are exempt from federal and state law overtime protections.

Title 29 U.S.C. § 207(a)(1) (1989) mandates an employer must pay an employee at least one and one-half times his regular rate of pay for work performed in excess of forty hours in a workweek.¹ Title 29 U.S.C. § 213(b)(1) (1994) qualifies the foregoing overtime protection by making § 207 inapplicable to employees for whom the Secretary of Transportation has the power to establish qualifications and maximum hours of service.² The Secretary of Transportation has the power to establish qualifications and maximum hours of service for employees of "motor carriers." 49 U.S.C. § 31502(b)(1) ("The Secretary of Transportation may prescribe requirements for — qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier.").

The Secretary of Transportation need not establish regulations concerning maximum hours of service for the exemptions to take effect; "it is the existence of the power as opposed to its exercise which Congress has said is determinative as to the applicability of the FLSA. Morris v. McComb, 332 U.S. 422, 434, 68 S.Ct. 131 137, 92 L.Ed. 44 (1947); Starrett v. Bruce, 391 F.2d 320, 323 (10th Cir.), cert. denied, 393 U.S. 971, 89 S.Ct. 404, 21 L.Ed.2d 384 (1968)."; see also 29 C.F.R. § 782.1(a). In any event, the Secretary of Transportation has established regulations concerning the maximum hours of service for drivers of motor carriers. 49 C.F.R. § 395.3(a) (1992).³

The parameters of the motor carrier exemption are defined at 29 C.F.R. 782 (1971). As stated therein,

"The power of the Secretary of Transportation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who: (1) Are employed by carriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act ... and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act." 29 C.F.R. § 782.2(a).

The exemption applies only to employees whose work consists of activities defined, "(i) As that of a driver, driver's helper, loader, or mechanic, and (ii) as directly affecting the safety of operation of motor vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act." 29 C.F.R. § 782.2(b)(2). The determination an individual employee falls within any such classification vel non is to be determined by the judicial process. Id., citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184 (1947). "In determining whether an employee falls within such an exempt category, neither the name given to his position nor that given to the work that he does is controlling, what is controlling is the character of the activities involved in the performance of his job." (citations omitted) Id.

If the continuing duties of the employee are of the character described above, the employee is exempt in all workweeks where he is employed in the job and

"the rule applies regardless of the proportion of the employee's time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting `safety of operation.' On the other hand, where the continuing duties of the employee's job have no substantial direct effect on such safety of operation or where such safety-affecting activities are so trivial, casual, and insignificant as to be de minimis, the exemption will not apply to him in any workweek so long as there is no change in his duties." 29 C.F.R. § 782.2(b)(3).

Title 29 C.F.R. § 782 defines four types of motor carrier employment activity exempted from the FLSA's overtime protection: (1) "Drivers" (29 C.F.R. § 782.3); (2) "Drivers' helpers" (29 C.F.R. § 782.4); (3) "Loaders" (29 C.F.R. § 782.5); and (4) "Mechanics" (29 C.F.R. § 782.6).

The focus of the exemption is not on whether the motor carrier actually obtains or engages in interstate business, but whether the carrier solicits such business. Brennan v. Schwerman Trucking Co. of Va., Inc. 540 F.2d 1200, 1203 (4th Cir.1976) ("It is not simply those carriers who actually obtain interstate business that are subject to the jurisdiction of the Secretary of Transportation.").

As plaintiffs argue, the FLSA is to be narrowly construed against finding an exemption and an employer relying upon an exemption from the overtime prescriptions of § 207 has the burden of proving its employees are plainly and unmistakably exempt. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206, 86 S.Ct. 737, 747, 15 L.Ed.2d 694 (1966); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 291, 79 S.Ct. 756, 757, 3 L.Ed.2d 815 (1959); Walling v. General Indus. Co., 330 U.S. 545, 548-49, 67 S.Ct. 883, 884-85, 91 L.Ed. 1088 (1947); Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir.1993); Friedrich v. U.S. Computer Servs., 974 F.2d 409, 412 (3rd Cir. 1992); Johnson v. City of Columbia, S.C., 949 F.2d 127, 129-30 (4th Cir.1991); Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986); Brennan v. Bill Kirk's Volkswagen, 497 F.2d 892, 894 (4th Cir.1974); Snell v. Quality Mobile Home Brokers Inc., 424 F.2d 233, 235 (4th Cir.1970); Airlines Transp. v. Tobin, 198 F.2d 249, 252-53 (4th Cir.1952); Burgess v. Catawba Cty., 805 F.Supp. 341, 345 (W.D.N.C.1992); Thomas v. County of Fairfax, Va., 758 F.Supp. 353, 358 (E.D.Va.1991) ("The terms of the FLSA, a remedial statute designed to effectuate Congress' goal of providing employment protection, are to be liberally construed. `Breadth of coverage' is `vital to the Act's mission.' Powell v. U.S. Cartridge Co., 339 U.S. 497, 516, 70 S.Ct. 755, 765, 94 L.Ed. 1017 (1950); Schultz v. W.R. Hartin & Son, Inc., 428 F.2d 186, 189 (4th Cir.1970) (Act establishes a `presumption of coverage.'). Accordingly, exemptions to the Act ... `are to be narrowly construed and limited to those plainly and unmistakably within their terms and spirit.' Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 211, 79 S.Ct. 260, 264, 3 L.Ed.2d 243 (1959); Pugh v. Lindsay, 206 F.2d 43, 46 (4th Cir.1953)."); Wilson v. City of Charlotte, N.C., 717 F.Supp. 408, 411 (W.D.N.C.1989) ("The employer must demonstrate that its employees meet every aspect of the claimed exemption before the employees can be denied the protection of the FLSA."); Nettles v. Techplan Corp., 704 F.Supp. 95, 99 (D.S.C. 1988); McLaughlin v. McGee Bros. Co., Inc., 681 F.Supp. 1117, 1133 (W.D.N.C.1988).

UPS has submitted the affidavit of Craig Owen, its Human Resources Manager for the UPS West Virginia District. Mr. Owen describes the job duties of "package drivers" as follows:

"Package drivers work out of `package centers' which are located throughout the UPS service area. In the United States, UPS has numerous package centers, 13 of which are located in the West Virginia District. The West Virginia District includes the state of West Virginia except for the extreme Eastern Panhandle. Cumberland, Maryland is also included within the West Virginia District." Id. at ¶ 4.

Mr. Owen describes the job duties of "feeder drivers" as follows:

"Feeder drivers spend almost their entire workshift on the road transporting trailer loads of sorted packages between centers and hubs. `Hubs' in the UPS system are the consolidation and distribution centers for packages. Within the West Virginia District, there is only one hub which is located in South Charleston, West Virginia. In transporting packages to various hubs, feeder drivers necessarily travel outside the state of West Virginia." Id. at ¶ 7.

Mr. Owen describes the job responsibilities of mechanics as follows: "responsibilities include road testing UPS vehicles after performing maintenance on such vehicles. Mechanics are required to retrieve and repair UPS vehicles that become incapacitated on the highways." Id. at ¶ 8.

Plaintiffs do not dispute UPS is a motor...