Unpublished Disposition, 914 F.2d 262 (9th Cir. 1989)

MEMORANDUM^** 

Appellee, Flint Engineering and Construction Co. (Flint), is a corporation engaged in the service and construction of oil fields. The Secretary of Labor brought this action pursuant to section 17 of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., alleging that Flint violated provisions of the Act by: (1) failing to compensate its employees for time spent in preparatory tasks before traveling to the oil fields at the start of the work day; (2) failing to compensate its employees for their attendance at safety meetings that were held before the start of the business day on an approximately monthly basis; and (3) failing to compensate its employees for time spent traveling in company trucks at the end of the work day.

By stipulation of the parties, the case was submitted to the district court for ruling upon depositions, exhibits and briefs. The district court dismissed all three claims. The court held that the pre-shift activities--the preliminary preparatory tasks and attendance at safety meetings--were noncompensable under the FLSA as de minimis activities. The district court dismissed the claim for travel time because it found that the employees used Flint trucks only for their own convenience, and therefore that the travel time was not integral to performance of the employees' principal job duties.

The Secretary appealed the district court's dismissal of the claims for pre-shift compensation and that portion of the ruling on travel time dismissing the claim for compensation for company foremen, but not for other crew members.

We now affirm the district court's dismissal of the pre-shift compensation claims, and reverse the dismissal of that portion of the travel time compensation claim that the Secretary has appealed.

Flint's employees performed roustabout services for Gulf Oil Company at the Little Knife field, about 50 miles north of Flint's Dickinson, North Dakota office. Flint employed four to six crews to service the Little Knife oil field, each crew consisting of one foreman and one or two laborers. The foremen drove specially-equipped company trucks to and from the field, accompanied by the other members of their crew. Foremen were responsible for fueling and generally maintaining their trucks. The trucks did not need to be refueled every day. Each foreman was also required to turn in the time tickets of his crew members for the previous day on a daily basis. These tasks, which took anywhere from a minute to fifteen minutes to perform, were generally completed before 7:00 a.m., the official starting time of the Flint work day. In the district court, the Secretary argued that the foremen should have been compensated for these preparatory tasks.

The Secretary also argued that all employees should have been compensated for their attendance at safety meetings. These meetings were held approximately once per month, lasted from five to fifteen minutes, and sometimes began before 7:00 a.m. Attendance was taken at these meetings, though workers who missed a meeting could have their names subsequently added to the attendance roster if they were briefed on the substance of the meeting by other Flint personnel.

In addition to the pre-shift activities for which the Secretary sought compensation, the Secretary also argued that crew foremen should have received compensation for driving the trucks back to Dickinson--either to the Flint office or to their homes--at the end of the work day. Prior to March 21, 1983, Flint had paid all workers from 7:00 a.m., the departure time from Dickinson, until they returned from the oil field to Dickinson. In an effort to reduce the amount it charged Gulf Oil for its roustabout services, Flint adopted a policy of not paying return travel time to any of its workers. Beginning March 21, 1983, it instructed all employees that their duties ended at the oil field and that they must not return to the company office at the conclusion of the workday. Thereafter, crew foremen regularly drove the company trucks from the field to their homes. Flint continued to compensate employees for return travel time on all non-Gulf work.

Appellee argues preliminarily that the appeal was not timely. The final order of the district court was entered on November 8, 1988. The notice of appeal was filed on January 9, 1989. Although January 9, 1989 is the sixty-first calendar date after the date of the judgment, since the sixtieth calendar date, January 8, 1989, is a Sunday, January 8 is not counted for purposes of determining the timeliness of the appeal. Fed. R. App. P. 26(a). As a result, the appeal was filed within the allotted sixty days. Fed. R. App. P. 4(a) (1).

Appellant contends that the district court's dismissal of the compensation claims for pre-shift activities is a ruling of law, reviewable de novo. Appellee argues that this ruling is predicated on a finding of fact as to the de minimis nature of the activities performed, and therefore subject to the clearly erroneous standard. We need not decide which standard applies, since under either one, we would affirm the conclusions of the district court.

Employees cannot recover for otherwise compensable tasks under the FLSA where the time spent performing those tasks is de minimis. Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984). To determine whether time spent is de minimis, "we will consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Id. at 1063. Upon our careful review of the record, we find that the district court properly held that the pre-shift time was de minimis. The district court correctly found that the administrative difficulty of recording the small, irregular periods of time spent by the foremen in performing preparatory tasks each morning outweighed the fact that the amount of time they spent on those tasks may have been substantial in the aggregate. The district court also applied the Lindow test correctly to the safety meetings. The short, varying duration of these meetings, combined with their uneven attendance, renders them de minimis.

Appellant argues that the district court's dismissal of the travel time compensation claim is subject to de novo review, while appellee contends that it is predicated on a finding of fact, reversible only if clearly erroneous. Again, we need not determine the applicable standard of review. Our examination of the record indicates that the district court's finding that the foremen used the company trucks for their own convenience was clearly erroneous.

In both the district court and this court, the Secretary argued that the foremen were employed not merely as roustabouts but also as truck drivers, thereby rendering their driving time a principal activity of their jobs. Flint responded that the foremen's return travel time is not compensable because it falls under the exemptions provided in section 4(a) of the Portal-to-Portal Act. 29 U.S.C. § 254(a). The provision excludes from the FLSA:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities....

Id. Finding "no evidence that the employees were required to report to or return the truck [s] to the Dickinson office at the end of each work day," the district court determined that "return travel time was not integral to performance of the employees' principal job duties...." Brock v. Flint Eng'g and Constr. Co., No. CV 86-240-BLG-JFB, slip op. at 5 (D. Mont. Nov. 8, 1988).

This finding cannot be sustained because the record clearly shows that crew foremen were in fact required to return the trucks to Dickinson--although not to the Flint office--at the end of the day. The uncontroverted deposition testimony of Flint employees and officials established that the crew foremen were required to drive the company trucks from Dickinson to the oil field in the morning.¹  In practice, this amounted to a requirement that the foremen drive the trucks away from the fields and transport them to Dickinson at night. Since the foremen were required to have their trucks with them when they drove from Dickinson to the oil field at the start of each workday, they necessarily were required to take the trucks away from the oil field when they drove from the field to their homes in Dickinson at the end of the previous workday.²  Thus, the conclusion is inescapable that the foremen were required to drive the trucks away from the field as a matter of Flint company policy. The district court's finding that the foremen were not required to drive the company trucks, that they were free to use alternate transportation, and that they drove the trucks only as a convenience, is clearly erroneous.

Because the required driving of the trucks from the field constituted part of the "principal activity or activities" that the foremen were required to perform, 29 U.S.C. § 254(a) does not relieve Flint of its obligation to compensate the foremen for this travel time. The interpretive bulletin of the Department of Labor, which is entitled to "great deference" in analyzing the FLSA, Lindow, 738 F.2d at 1061, explains:

The "principal" activities referred to in the statute are activities which the employee is "employed to perform".... Congress intended the words "principal activities" to be construed liberally ... to include any work of consequence performed for an employer, no matter when the work is performed.

29 C.F.R. Sec. 790.8(a) (1989).

As the record reveals, the foremen were employed to drive the company trucks as well as to perform roustabout services. By driving the trucks the foremen were performing "work of consequence" for Flint. They transported to and from the oil field not only the equipment and tools which were indispensable to the roustabout work, but also the necessary crew members. Thus, under the administrative construction of the term, the foremen's driving qualifies as a compensable "principal activity." Accord 29 C.F.R. Sec. 785.41.³ 

Each party shall bear its own costs on this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.