David Kranstover, Respondent, vs. Bergen's Wholesale Florists, Inc., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-965

David Kranstover,

Respondent,

vs.

Bergen's Wholesale Florists, Inc.,

Appellant.

Filed October 22, 1996

Reversed

Thoreen, Judge[*]

Becker County District Court

File No. C7-95-263

Charles A. Krekelberg, Jeffrey D. Skonseng, Krekelberg Law Firm, 10 North Broadway, P.O. Box 353, Pelican Rapids, MN 56572 (for Respondent)

Charles J. Ramstad, Irvine, Ramstad, Briggs, Karkela & Ziegler, P.A., 114 West Holmes Street, P.O. Box 683, Detroit Lakes, MN 56501 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Thoreen, Judge.

U N P U B L I S H E D O P I N I O N

THOREEN, Judge

Appellant challenges a judgment that ordered payment of unpaid overtime compensation, liquidated damages, and attorney fees pursuant to the Fair Labor Standards Act (FLSA). Because we conclude the motor carrier exemption of the FLSA applies to respondent, we reverse.

FACTS

Operating in a six-state region, appellant Bergen's Wholesale Florist, Inc. (Bergen's) is a greenhouse that deals in grown and brokered agricultural products. Bergen's employed respondent David Kranstover (Kranstover) as leadman for its shipping and receiving department. As leadman, Kranstover's duties included (1) loading and unloading trucks of grown and brokered products,[1] (2) filling shipping orders, and (3) receiving supplies of raw material and finished product from out-of-state suppliers. In addition, Kranstover occasionally filled in as a driver and delivered product to businesses within Minnesota and other surrounding states.[2]

The parties stipulated to most of the material facts and agreed that during the course of his employment as leadman, Kranstover worked a total of 534.3 hours of overtime. Kranstover was paid his regular wage of $13.00 per hour for all of these hours. On Kranstover's termination, Bergen's paid additional overtime compensation of $6.50 per hour for 194.2 hours of these hours. The parties agree Kranstover has not been paid overtime compensation for 340.1 of his total overtime hours. Kranstover brought an action to recover overtime compensation for the remainder of his overtime

Following a one-day trial, the district court determined Kranstover was entitled to payment for 121.4 hours of overtime, for a total of $789.10. The district court also awarded liquidated damages pursuant to 29 U.S.C. § 216(b) (1994) for an equal amount ($789.10) and attorney fees ($1,500) as authorized by 29 U.S.C. § 216(b). Bergen's seeks review of the district court's decision.

D E C I S I O N

This case involves the interpretation of various sections of the FLSA and federal regulations requiring employers to compensate employees for overtime work, and relevant exemptions to this requirement. As such, this court's review is de novo. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S. Ct. 1527, 1530 (1986) (explaining question whether employees' activities excluded them from FLSA's overtime benefits is question of law); Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984) (stating applicability of motor carrier exemption to employee is question of law that is reviewed de novo on appeal). The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Where the material facts are not in dispute, as here, a reviewing court need not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

1. Bergen's argues the district court erred in concluding an exemption from the FLSA's overtime requirement did not apply to Kranstover. See 29 U.S.C. § 213(b)(1) (1994) (motor carrier exemption). Bergen's contends two aspects of Kranstover's continuing job activities placed him within the motor carrier exemption: his responsibilities as (1) partial-duty driver and (2) partial-duty loader. Either line of analysis, Bergen's maintains, leads to the conclusion that the motor carrier exemption applied to Kranstover, thereby exempting Bergen's from compensating Kranstover for overtime.

The fundamental test to determine the applicability of the motor carrier exemption to a particular employee is whether that employee's activities affect the safety and operation of motor vehicles transporting property in interstate commerce. Levinson v. Spector Motor Serv., 330 U.S. 649, 671, 67 S. Ct. 931, 942 (1947). The Supreme Court has explained it is the character of an employee's activities, rather than the proportion of time or activities, that determines the applicability of the motor carrier exemption. Id. at 674-75, 67 S. Ct. at 944.

Nonetheless, the Supreme Court decisions indicate there is a minimum, threshold level of safety-affecting activities that must be met before the rule in Levinson applies. The Levinson rule is not triggered when the employee's continuing duties have no substantial direct effect on the employer's safety of operation or where the safety-affecting activities are so trivial, casual, and insignificant as to be de minimis. 29 C.F.R. § 782.2(b)(3) (1994); see Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S. Ct. 954, 960 (1947) (stating employee's activities may be so trivial, casual, or occasional that they will not affect safety of operation). This is considered the de minimis exception to the motor carrier exemption.

The district court determined the motor carrier exemption did not apply to Kranstover because it concluded substantial portions of his job did not affect the safety of operation of Bergen's trucks in interstate commerce. We disagree.

First, Kranstover's duties as a partial-duty driver prevented application of the de minimis exception.[3] The courts have held that drivers should seldom, if ever, fall within the de minimis exception to the motor carrier exemption. Friedrich v. U.S. Computer Servs., 974 F.2d 409, 417 n.10 (3rd Cir. 1992) (citing Levinson, 330 U.S. at 677-78, 67 S. Ct. at 945-46); Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210 (1st Cir. 1972); Sinclair v. Beacon Gasoline Co., 447 F. Supp. 5, 11 (W.D. La. 1976)); see also Levinson, 330 U.S. at 678, 67 S. Ct. at 946 ("[T]he driver's work more obviously and dramatically affects the safety of operation of the carrier during every moment that he is driving than does the work of the loader who loaded the freight which the driver is transporting."); Morris v. McComb, 332 U.S. 422, 423-24, 68 S. Ct. 131, 132 (1947) (holding drivers whose interstate business constituted only three to four percent of carrier's total business were covered by motor carrier exemption).

Second, Kranstover's responsibilities as leadman included the activities of a partial-duty loader. The motor carrier exemption applies to partial-duty loaders whose work affects the safety of operation of motor vehicles in interstate commerce. Levinson, 330 U.S. at 652-53, 67 S. Ct. at 933-34; 29 C.F.R. § 782.5(b) (1994). Kranstover's continuing duties affected Bergen's safety of operation because he was required to secure carts holding its product, which could be quite heavy, in Bergen's trucks with load locks to prevent the carts and product from shifting and breaking loose in transit. Moreover, Kranstover necessarily exercised some discretion in distributing the load, despite the normal practice of loading on a last-in, first-off basis.[4]

Thus, we conclude Kranstover's duties both as a partial-duty driver and partial-duty loader affected the safety of operation of Bergen's motor vehicles in interstate commerce and that the motor carrier exemption applied to all of Kranstover's activities.

2. As the de minimis exception does not apply, it is not necessary to examine Kranstover's weekly activities to determine whether all or part of his duties in a particular week were excluded from overtime benefits.

Reversed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Bergen's employees placed the agricultural product to be shipped on carts for movement within the warehouse and grouped the product according to its destination. In turn, the leadman and other employees loaded these carts onto the trucks. To prevent shifting of the carts during loading and transit, they used load locks that secured the carts in place. Kranstover, as leadman, bore responsibility for ensuring the load locks were attached properly and the product carts did not break free.

[ ]2 The Department of Transportation (DOT) regulated Bergen's drivers. The greenhouse filed quarterly mileage reports with the DOT and maintained its own records and driver logbooks, which were subject to inspection by the DOT.

[ ]3 Partial-duty drivers like Kranstover are included within the definition of "driver" employees. See 29 C.F.R. § 782.3(a) (1994).

[ ]4 Kranstover argues this practice of last-in, first-off limited his discretion in loading product and cites Wirtz v. C & P Shoe Corp., 336 F.2d 21 (5th Cir. 1964). Kranstover's reliance on Wirtz is misplaced. The Wirtz case considered only common warehousemen, and the court excluded from its consideration warehouse managers like Kranstover. See Wirtz, 336 F.2d at 29.

Furthermore, the lightweight nature of the product in Wirtz (shoes) required the loaders to exercise little, or no, discretion in distributing the load. In contrast, Bergen's product, which could be quite heavy (e.g., balled trees and shrubs), necessitated some judgment on Kranstover's part.