Petition for Writ of Certiorari — Bonilla v. Baker Concrete Construction, Inc. (No. 07-554)

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Supreme Cau

vere aut U.S

07-554 0CT 25 2007

E CLERK

IN THE

Supreme Court of the United States

PERCY BONILLA, MIGUEL HERNANDEZ, CARLOS CRUZ,

MICHAEL MACHADO, JULIO J. ALVAREZ, GERMAN

SANDOVAL, CARLOS CASTRO, EDGARDO AVILA, JOSE A.

CABRERA, PORFIRIO VARELA, ERMIN TALAVERA,

PETITIONERS

BAKER CONCRETE CONSTRUCTION, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARINA TRAMONTOZZI

Counsel of Record

JAMIE H. ZIDELL

J.H. Zidell, P_A.

300 71st St Ste 605

Miami Beach, FL 33141

(305) 865-6766

Far: (3805) 865-7167

Attorneys for Petitioner

CURRY & TAYLOR @ WASH O.C. (202!) 393-°414° @ USSCINFO.COM

QUESTION PRESENTED

Whether the United States Court of Appeals for

the Eleventh Circuit erred in its ruling in direct

conflict with the United States Supreme Court

ruling in /BP, Inc., v. Alvarez 546 U.S. 21 (2005),

and the United States Supreme Court ruling in

Steiner v. Mitchell, 350 U.S. 247 (1956), concluding

that mandatory travel time is exempted from

overtime wage compensation under the “Portal-to-

Portal Act” 29 U.S.C. § 254.

TABLE OF CONTENTS

Page

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APPENDIX

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TABLE OF AUTHORITIES

Page

CASES

ARNOLD V. BEN KANOWSKY, INC., 361 U.S. 388,

icici cl a a a a ee 10

BONILLA V. BAKER CONCRETE CONSTRUCTIO™ INC.

Ee I iiss sateen iia 1

DUNLOP V. CITY ELECTRIC, [NC., 527 F.2D 394 (5TH

I FI i aeiis icisicncittenhineshstabac cca ia al 12, 13

IBP, INC., V. ALVAREZ 546 U.S. 21 (2005) ..........csccccccosreesserees 16

MITCHELL V. KENTUCKY FIN. Co., 359 U.S. 290,

5 SRST CNT aR PEO RO Ber RE Poe r PL So Oe AM eNotes 10

MITCHELL V. SOUTHEASTERN CARBON PAPER

COMPANY, 228 F.2D 934 (5 CIR. 1955)...2......... cece ceeeeee 13

NICHOLSON V. WORLD BUSINESS NETWORK, INC.,

Eb RS RAG Gs LO: FR: nee nnn ae gnen een 10

SEC'Y OF LABOR V. E. R. FIELD, INC., 495 F.2D 749,

y 8S: gt : ERMC MORMON a Uae tr DONT CAPR Te eae 15

STEINER V. MITCHELL, 350 U.S. 247 (1956)... 11, 13, 18

WALLING V. MID-CONTINENT PIPE LINE Co., 143 F.

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PETITION FOR WRIT OF CERTIORARI

Percy Bonilla et al. (“Appellants”) petitions for a

writ of certiorari to review an opinion and judgment of

the U.S. Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the

Eleventh Circuit, dated May 30, 2007, is officially

reported as Bonilla v. Baker Concrete Construction Inc.

487 F.3d 1340, and is reproduced at App. la- 14a. The

11“ Circuit Court of Appeals order denying Petition for

Rehearing is reproduced at App, 48a-49a. The decision

of the Southern District of Florida is reproduced at

App.15a-47a.

JURISDICTION

The petition is timely under 28 U.S.C. §2101(c),

28 U.S.C. §1254 and Supreme Court Rule 13.3 because

it is being filed within 90 days of the 11‘ Circuit Court

of Appeals denying Petition for Rehearing affirming

the Southern District of Florida’s decision granting

Defendant’s motion for summary judgment.

RELEVANT PROVISIONS INVOLVED

The relevant statutory provisions involved are

29 U.S.C. § 207 (a)(1) of the Fair Labor Standards Act;

29 U.S.C. § 254 Portal to Portal Act; 29 C.F.R. 785.38

Travel that is all in the day's work; 29 C.F.R. 790.6(b)

Periods within the “workday” unaffected. 29 C.F.R. §

790.7 (h) "Preliminary" and “postliminary” activities.

Section 207 (a)(1) of the FLSA, maximum hours (29

U.S.C. § 207 (a)(1))

a. Employees engaged _ in interstate

commerce; additional applicability to employees

pursuant to subsequent amendatory provisions.

(1) Except as otherwise provided in this

section, no employer shall employ any of his

employees who in any workweek is engaged in

commerce or in the production of goods for

commerce, or is employed in an enterprise

engaged in commerce or in the production of

goods for commerce, for a workweek longer than

forty hours unless such employee receives

compensation for his employment in excess of

the hours above specified at a rate not less than

one and one-half times the regular rate at which

he is employed.

Section 254 of the Portal to Portal Act (29 U.S.C. § 254)

Relief from liability and punishment under the

Fair Labor Standards Act of 1938, the Walsh-

Healey Act, and the Bacon-Davis Act for failure

to pay minimum wage or overtime compensation

(a) Activities not compensable. Except as

provided in subsection (b), no employer shall be

subject to any liability or punishment under the

Fair Labor Standards Act of 1938, as amended,

the Walsh-Healey Act, or the Bacon-Davis Act,

on account of the failure of such employer to pay

an employee minimum wages, or to pay an

employee overtime compensation, for or on

account of any of the following activities of such

employee engaged in on or after the date of the

enactment of this Act [enacted May 14, 1947|]—

(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, which occur either prior to the time on

any particular workday at which such employee

commences, or subsequent to the time on any

particular workday at which he ceases, such

principal activity or activities. For purposes of

this subsection, the use of an employer's vehicle

for travel by an employee and activities

performed by an employee which are incidental

to the use of such vehicle for commuting shall

not be considered part of the employee's

principal activities if the use of such vehicle for

travel is within the normal commuting area for

the employer's business or establishment and

the use of the employer's vehicle is subject to an

agreement on the part of the employer and the

employee or representative of such employee.

(b) Compensability by contract or custom.

Notwithstanding the provisions of subsection (a)

which relieve an employer from liability and

punishment with respect to an activity, the

employer shall not be so relieved if such activity

is compensable by either—

(1) an express provision of a written or

nonwritten contract in effect, at the time of such

activity, between such employee, his agert, or

co’ . .ive-bargaining representative and his

emp.cyer; or

(2) a custom or practice in effect, at the time of

such activity, at the establishment or other place

where such employee is employed, covering such

activity, not inconsistent with a written or

nonwritten contract, in effect at the time of such

activity, between such employee, his agent, or

collective-bargaining representative and his

employer.

activities. For the purposes of subsection (b), an

activity shall be considered as compensable

under such contract provision or such custom or

practice only when it is engaged in during the

portion of the day with respect to which it is so

made compensable.

(d) Determination of time employed with respect

to activities. In the application of the minimum

wage and overtime compensation provisions of

the Fair Labor Standards Act of 1938, as

amended, of the Walsh-Healey Act, or of the

Bacon-Davis Act, in determining the time for

which an employer employs an employee with

respect to walking, riding, traveling, or other

preliminary or postliminary activities described

in subsection (a) of this section, there shall be

counted all that time, but only that time, during

which the employee engages in any such activity

which is compensable within the meaning of

subsections (b) and (c) of this section.

Section 785.38 Travel that is all in the day's work. (29

C.F.R. 785.38)

Time spent by an employee in travel as part of

his principal activity, such as travel from job site

to job site during the workday, must be counted

as hours worked. Where an employee is required

to report at a meeting place to receive

instructions or to perform other work there, or

to pick up and to carry tools, the travel from the

designated place to the work place is part of the

day's work, and must be counted as hours

worked regardless of contract, custom, or

practice. If an employee normally finishes his

work on the premises at 5 p.m. and is sent to

another job which he finishes at 8 p.m. and is

required to return to his employer's premises

arriving at 9 p.m., all of the time is working time.

However, if the employee goes home instead of

returning to his employer's premises, the travel

after 8 p.m. is home-to-work travel and is not

hours worked. (Walling v. Mid-Continent Pipe

Line Co., 143 F. 2d 308 (C. A. 10, 1944)).

Section 790.6(b) Periods within the "workday"

unaffected. 29 C.F.R. 790.6(b)

(b) "Workday" as used in the Portal Act means,

in general, the period between the

commencement and completion on the same

workday of an employee's principal activity or

activities. It includes all time within that period

whether or not the employee engages in work

throughout all of that period. For example, a rest

period or a lunch period is part of the "workday",

and section 4 of the Portal Act therefore plays no

part in determining whether such a period,

under the particular circumstances presented, is

or is not compensable, or whether it should be

included in the computation of hours worked. n38

If an employee is required to report at the actual

place of performance of his principal activity at a

certain specific time, his "workday" commences

at the time he reports there for work in

accordance with the employer's requirement,

even though through a cause beyond the

employee's control, he is not able to commence

performance of his productive activities until a

later time. In such a situation the time spent

waiting for work would be part of the workday,

n39 and section 4 of the Portal Act would not

affect its inclusion in hours worked for purposes

of the Fair Labor Standards Act.

29 C.F.R. § 790.7 (h) "Preliminary" and "postliminary"

activities.

(h) As indicated above, an activity which is a

"preliminary" or "postliminary" activity under

one set of circumstances may be a principal

activity under other conditions. This may be

illustrated by the following example: Waiting

before the time’ established for the

commencement of work would be regarded as a

preliminary activity when the employee

voluntarily arrives at his place of employment

earlier than he is either required or expected to

arrive. Where, however, an employee is required

by his employer to report at a particular hour at

his workbench or other place where he performs

his principal activity, if the employee is there at

that hour ready and willing to work but for some

reason beyond his control there is no work for

him to perform until some time has elapsed,

waiting for work would be an integral part of the

employee's principal activities. The difference in

the two situations is that in the second the

employee was engaged to wait while in the first

the employee waited to be engaged.

STATEMENT

The Appellants were all employed as

construction workers to perform work at Miami

International Airport (MIA) for the relevant time

period. According to the Appellants' and one of

' R- 74 C. Cruz-pg 27, line 20-23. R-72 J. Cabrera-pg 22, line 24-25;

R-72 J. Cabrera-pg 23, line 1-2; R-72 J. Cabrera- pg 27, line 9-17; R-

72 J. Cabrera-pg 28, line 12-15 and 21-25; R-72 J. Cabrera-pg 29,

line 1-6 R-71 E. Avila-pg 32, line 1-9, 17-25; R-71 E. Avila-pg 33,

line 1-13 R-70 G. Sandoval-pg 26, line 10-25; R-70 G. Sandoval-pg

33, line 1-13 R-69 E. Talavera-pg 17, line 5-18; R-69 E. Talavera-pg

20, line 20-24; R-69 E. Talavera-pg 21, line 13-25; R-69 E. Talavera-

pg 22, line 1-25; R-69 E. Talavera-pg 23, line 1-11 R-69 E. Talavera-

pg 24, line 3-18 R-68 P Varela, pg 14, line 11-25; R-68 P Varela, pg

21, line 18-25; R-68 P Varela, pg 22, line 1-25; R-68 P Varela, pg 23,

line 1-25; R-68 P Varela, pg 24, line 1-25; R-68 P Varela, pg 25, line

1-25; R-68 P Varela, pg 26, line 6-14 and line 25-25; R-68 P Varela,

pg 27, line 1-11; R-68 P Varela, pg 28, line 13-15 R-66 M.

Hernandez, pg 15, line 22-25; R-66 M. Hernandez, pg 16, line 1-2;

K-66 M. Hernandez, pg 21, line 20-25; R-66 M. Hernandez, pg 22,

line 1-25; R-66 M. Hernandez, pg 23, line 5-25; R-66 M. Hernandez,

pg 24, line 1-25 R- 65 M. Machado, pg 26, line 2-25; R- 65 M.

Machado, pg 23, line 8-14 and 22-25; R- 65 M. Machado, pg 29, line

1-14; R- 65 M. Machado, pg 41, line 4-25; R- 65 M. Machado, pg 42,

line 1-25; R- 65 M. Machado, pg 43, line 1-25; R- 65 M. Machado, pg

47, line 4-22; R- 65 M. Machado, pg 4%, line 2-2.

Appellee’s upper managerial personnel’ in addition to

the “Construction Related Requirements®’, the

Appellee ordered the Appellants to park in a

designated lot located approximately 3.2 miles away

from (MIA) and ordered the Appellants to take

designated commercial buses from the lot to the

security gate at (MIA) each workday. Appellants were

required to be at the site approximately one hour prior

to the formal workday beginning. These buses held

approximately fifty passengers. Before arriving at their

respective worksites, Appellants has to carry

identification for entry at the security gates and carry

their safety equipment, including safety goggles, a hard

hat, boots and gloves. The Appellants would de-board

the buses at the security gate and form a line in order

to complete security screening. After completing

security screening, the Appellants would re-board the

bus and were taken to their air-side construction

jobsite. This process would be repeated in the afternoon

each day as well. The Appellants spent approximately

45 minutes to one hour each way on a daily basis

getting to their air-side jobsites and returning to the

designated parking lot each afternoon. Appellants were

*[R.59-- Orr Depo. P.21, 1..3-P.22, L.25].

* The CRR “Construction Related Requirements” for the MIA

project at chapter | states that its contents are “requirements” for

the construction work at MIA and that its contents are to be

considered as construction related activities. See section 1.1.

At Chapter “3” of the “CRR”, the Rule book states:

3.1 “ Effective May 14", 2001, the construction workers’

parking facility will be located at the Miami Jai-Alai, 36"

Ave and 36" Street. This site will be used immediately by

all field employees....All parking garages within the

Airport property are reserved for the use of airport

patrons and County employees only.”

not compensated in any form for their travel time

between the designated parking lot and their job site.

The Magistrate Judge granted summary

judgment in favor of Baker Concrete Construction Inc.

finding that the travel time that Appellants spent

traveling to work in buses from the parking lot, to and

through the security, and then to the job site, and the

return trip after work, was merely travel time, which is

not compensable under the FLSA. The United States

Court of Appeals for the 11" Circuit ruled that

mandatory travel time is exempted from compensation

under the “Portal-to-Portal Act” and otherwise found

that the security screening process was not

compensable since it was purportedly not indispensable

to the Plaintiffs’ principal work activity.

REASONS FOR GRANTING THE PETITION

I. MANDATORY TRAVEL TIME INCURRED

BY AN EMPLOYEE AFTER MEETING AT

AN EMPLOYER-DESIGNATED LOCATION

IS COMPENSABLE UNDER THE FAIR

LABOR STANDARDS ACT 29 U.S.C. 201-

216 AND DOES NOT FALL UNDER THE

PORTAL TO PORTAL EXEMPTION OF 29

U.S.C. §264.

Pursuant to 29 U.S.C. Sec.207(a)(1), workers are

entitled to one and one half times their regular hourly

rate for any hours worked per week in excess of forty

hours. However, there are certain exemptions applied

to the Fair Labor Standards Act such as the Portal to

Portal Act 29 U.S.C. §254 et al. Exemptions under the

Fair Labor Standards Act are to be construed strictly

and narrowly in favor of coverage of employees,

affording maximum coverage to the employees due to

the broad remedial purpose behind the Act. Nicholson

v. World Business Network, Inc., 105 F.3d 1361 (11%

Cir. 1997) Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,

(1960) Mitchell v. Kentucky Fin. Co., 359 U.S. 290,

(1959).

The Portal-to-Portal Act, 29 U.S.C. § 259 et al.

which amends the Fair Labor Standards Act (“FLSA”),

identifies those employee activities which are not

compensable under the FLSA. An employer is not

subject to liability under the FLSA for failure to pay

employees overtime compensation for:

(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, which occur either prior to the

time on any particular workday at which

such employee commences, or subsequent

to the time on any particular workday at

which he ceases, such principal activity or

activities. For purposes of this subsection,

the use of an employer's vehicle for travel

by an employee and activities performed

by an employee which are incidental to the

use of such vehicle for commuting shall

not be considered part of the employee's

principal activities if the use of such

vehicle for travel is within the normal

commuting area for the employer's

business or establishment and the use of

the employer's vehicle is subject to an

agreement on the part of the employer

and the employee or representative of

such employee. [Emphasis added].

29 U.S.C. § 254(a).

However, on the other hand, preliminary and

postliminary activities, are compensable if they are "an

integral and indispensable part of the employee's

principal activities." Steiner v. Mitchell, 350 U.S. 247

(1956).

The question at hand is whether, employer

required parking and travel from the designated

parking lot to the security gate and from the security

gate to the job site each workday, constitutes a

preliminary and postliminary activity that is an integral

and indispensable part of the employee’s principal

activities and therefore should not be included in the

Portal-to-Portal exception of the FLSA.

The Portal-to-Portal Act, 29 U.S.C. § 254 (a),

does not eliminate employer liability for all work

related travel. As illustrated in 29 C.F.R. $785.35:

An employee who travels from home before his

regular workday and returns to his home at the

end of the workday is engaged in ordinary home

to work travel which is a normal incident of

employment. This is true whether he works at a

fixed location or at different job sites. Normal

travel from home to work is not worktime.

On the other hand, 29 C.F.R. § 785.38. illustrates this

distinction between compensable and non-compensable

travel:

Time spent by an employee in travel as part of

his principal activity, such as travel from job

site to job site during the workday, must be

counted as hours worked. Where an employee

is required to report at a meeting place to

receive instructions or to perform other work

there, or to pick up and to carry tools, the travel

from the designated place to the work place is

part of the day's work, and must be counted as

hours worked regardless of contract, custom, or

practice. If an employee normally finishes his

work on the premises at 5 p.m. and is sent to

another job which he finishes at 8 p.m. and is

required to return to his employer's premises

arriving at 9 p.m., all of the time is working time.

However, if the employee goes home instead of

returning to his employer's premises, the travel

after 8 p.m. is home-to-work travel and is not

hours worked.{ Emphasis added].

The former Fifth Circuit in Dunlop v. City

Electric, Inc., 527 F.2d 394 (5'" Cir. 1976) established

that the terms “principal activity or activities” are to be

liberally construed to encompass “any work of

consequence” and that the Portal-to-Portal act must be

read in conjunction with the rest of the FLSA. /d. at

398. The excepting language of § 4 was intended to

exclude from FLSA coverage only those activities

"predominantly spent in the employees own interests."

Id. at 398. The activities must be undertaken "for |the

employees'| own convenience, not being required by the

employer and not being necessary for the performance

of their duties for the employer.‘ /d. at 398. Therefore,

when an employer derives “significant benefit” from

the activity at issue, that activity is principal to the

performance of the work for which the employees are

employed , and is therefore compensable. /d at 399. In

quoting Steiner v. Mitchell, 350 U.S. 247 (1956), “Nor

was the exemption to apply to work "performed .. .

before or after the regular work shift .. . [as] an

integral and indispensable part of the principal

activities for which covered workmen are employed".

In determining whether the preliminary or

postliminary activities are so “integral and

indispensable” the Eleventh Circuit in the proceedings

below followed the factors enumerated in Dunlop at

401. The factors to be considered are (1) whether the

activity is required by the emplover, (2) whether the

activity is necessary for the employee to perform his or

her duties and (8) whether the activity primarily

benefits the employer.

In determining whether the activity was

required by the employer, Appellants as well as one of

Appellee’s upper managerial personnel, stated in their

deposition testimony that Appellants were ordered by

Appellee to park in the designated lot approximately

3.2 miles from their work site. Additionally, Chapter

“3” of the Construction Related Requirements, rule

book states:

' Mitchell v. Southeastern Carbon Paper Company, 228 F.2d 934 (5

Cir. 1955).

“3.1 “ Effective May 14", 2001, the construction

workers’ parking facility will be located at the

Miami Jai-Alai, 36'" Ave and 36" Street. This site

will be used immediately by all field

employees....All parking garages within the

Airport property are reserved for the use of

airport patrons and County employees only.”

Based on the deposition testimony in conjunction

with the Construction Related Requirements rule book,

it appears that the requirement to park at the

designated parking lot was required by the employer.

The second element is whether the activity is

necessary for the employee to perform his or her duties.

The Eleventh Circuit seemed to merely focus on the

security screening claim. However, when applying this

test, it should be focused on the designated parking lot

and bus travel aspect of the claim as well. Parking at

the designated parking lot and riding the bus was a

necessary activity for the Appellants. As stated in the

deposition testimony cited above, Appellants were

required by their employer to park their cars at this

designated parking lot.

The third element is whether this activity

benefits the employer. In our present case, when the

Appellants arrived an hour prior to their shift each

morning to board the bus that would take them to the

security check point, it was not done for the Appellants

own convenience or benefit, but was done for the

employers benefit. It would have been more convenient

and beneficial for the Appellants to be able to drive

directly to work each day, and at the end of the day be

able to head directly to their cars and go home. The

time spent on the bus going to and from the parking lot

was an inconvenience for the Appellants and mandated

by their employer. The primary benefit was for the

employer. By designating a parking lot away from the

airport, this allowed regular patrons to use the existing

airport parking lots without worrying about

overcrowding. It is Appellants belief that the

underlying reason for the designated parking lot was

the concern that the regular airport parking lot would

become overcrowded by Appellants parking there,

leaving little room for actual airport patrons and county

employees. This in effect only benefited the employers

and not the Appellants. The employer benefited, simply

by being able to maintain their contract with the

airport through this arrangement.

It can be argued that Appellants received some

sort of benefit, primarily that they did not have to pay

for airport parking, however that alone does not make

the time spent traveling to and from the parking sites

non-compensable since that arrangement significantly

benefited the employers. ("The activity is employment

under the Act if it is done at least in part for the benefit

of the employer, even though it may also be beneficial

to the employee.").° The underlying reason for the

designated parking lot was so that the regular airport

parking lot would not get overcrowded by Appellants

parking there, leaving little room for actual patrons and

county employees. This in effect primarily benefited the

employers and not the Appellants. Simply put,

Appellants would have traded their parking fee for paid

hours work.

' See'y of Labor v. BE. R. Field, Inc., 495 F.2d 749, 751 Ust Cir.

1974)

Therefore, it is Appellants contention that when

their employer required Appellants to park at the

designated parking lot and take the designated bus,

appellants were performing a _ preliminary and

postliminary activity that is integral and indispensable

part of the employee’s principal activities. As stated in

29 C.F.R. § 785.38:

“Where an employee is required to report at a

meeting place to receive instructions or to

perform other work there, or to pick up and to

carry tools, the travel from the designated place

to the work place is part of the day's work.”

Appellants employers required Appellants to

show up at the designated parking lot and board the

designated bus, at that point in time that was a

preliminary activity that was an integral and

indispensable part of the employee’s principal activities.

Therefore, any walking time/travel time that takes

place after the preliminary activity that was an integral

and indispensable part of the employee’s principal

activities is part of Appellants continuous workday as

stated in the United States Supreme Court case of /BP

Inc. v. Alvarez, 546 U.S. 21, 37 (2005):

“ For the foregoing reasons, we hold that any

activity that is “integral and indispensable” to a

“principal activity” is itself a “principal activity”

under § 4(a) of the Portal-to-Portal Act.

Moreover, during a continuous workday, any

walking time that occurs after the beginning of

the employee’s first principal activity is excluded

from the scope of that provision, and as a result

is covered by the FLSA.”

Therefore, although it was a preliminary activity, as

shown above, once it became integral and indispensable

to the principal activity, the preliminary activity

became a principal activity and should therefore not fall

under the Portal-to-Portal Act, and should remain

under the coverage of the FLSA.

Additionally, the Supreme Court in IBP Inc,

when analyzing the last case stated “As explained

below, our analysis would be different if Barber

required its employees to arrive at a particular time in

order to begin work.” The court went on to cite 29 CFR

§790.7(h) states that when an employee “is required by

his employer to report at a particular hour at his

workbench or other place where he performs his

principal activity, if the employee is there at that hour

ready and willing to work but for some reason beyond

his control there is no work for him to perform until

some time has elapsed, waiting for work would be an

integral part of the employee’s principal activity.” Jd at

41. In our present case, based on the deposition

testimony, the employer required Appellants to arrive

approximately an hour prior to the actual workday

beginning, and as mentioned above, the waiting at the

designated parking lot to board the designated bus in it

of itself became the principal activity. Therefore, based

on this reasoning, Appellants fit the description of the

aforementioned CFR provision, and should be viewed

as an employee showing up at his place where he

performs his principal activity., thus affording them

FLSA coverage.

Although Appellants contend that this case

should be viewed in one category, the United States

Court of Appeals for the Eleventh Circuit, when

determining the case below, decided to break up the

analysis of the case into two categories. The first

category which they summarily dismissed was the

designated parking lot and the bus ride from the

parking lot until the security check point. The second

category that they analyzed was Appellants travel from

the security check point until Appellants reached their

work area at the airport. When determining whether

the trip from the security check point until Appellants

reached their work site, the Eleventh Circuit in the

proceedings below followed the factors enumerated in

Dunlop at 401. The factors to be considered are (1)

whether the activity is required by the employer, (2)

whether the activity is necessary for the employee to

perform his or her duties and (3) whether the activity

primarily benefits the employer. Their courts analysis

was as follows:

“In this case, the screening was required by the

FAA, and appellee had no discretion as to

whether its employees would be screened. See

49 C.F.R. § 1540.107:see also Civil Aviation

Security Rules 67 Fed. Reg. 8340 at 8354 (Feb.

22, 2002). So although the screening was

necessary for the employees to perform their

work, appellee did not primarily—or even

particularly—benefit from the security regime.”

This reasoning is in direct conflict with the

United States Supreme Court Ruling in Steiner v.

Mitchell, 350 U.S. 247 (1956). In 1955, eight years after

the enactment of the Portal-to-Portal Act, the United

States Supreme Court was confronted with the

question whether workers in a battery plant had a

statutory right to compensation for the "time incident

to changing clothes at the beginning of the shift and

showering at the end, where they must make extensive

use of dangerously caustic and toxic materials, and are

compelled by circumstances, including vital

considerations of health and hygiene, to change clothes

and to shower in facilities which state law requires

their employers to provide. After distinguishing

"changing clothes and showering under normal

conditions" and stressing the important health and

safety risks associated with the production of batteries,

the Court endorsed the Court of Appeals' conclusion

that these activities were compensable under the

FLSA.

However, in no place during the Steiner ruling,

did the Supreme Court state since the employer was

bound by state law, the employer has no discretion.

Regardless of what the state or federal law may be, the

analysis used to determine whether or not the

preliminary and postliminary activity that is integral

and indispensable part of the employee’s principal

activities should still be followed. As in Steiner the

court was able to point to important health and safety

issues that required preliminary and _ postliminary

activity to be compensable under the FLSA, so too in

our case we can point to several safety issues in regard

to FAA regulations when entering an airport, and yet

analyze whether or not this preliminary and

postliminary activity is an integral and indispensable

part of the employee's principal activities.

The factors to be considered are (1) whether the

activity is required by the employer, (2) whether the

activity is necessary for the employee to perform his or

her duties and (3) whether the activity primarily

benefits the employer. Dunlop at 401. Their entire

analysis for the three prongs is as follows:

Going through security was definitely required

by the employer, as no employee would be allowed to

enter the airport prior to going through security.

Therefore, if the employer wanted to have any

employers employed for the job, he would have to

require them to go through security.

The activity of going through security is

necessary for the employee to perform his or her duties.

If an employee elects not to go through the security, he

or she will be unable to work. This is the only prong

that the Eleventh Circuit analyzed and agreed that the

screening was necessary.

The activity primarily benefited the employer, as

this allows the employer to make money. If the

employees do not go through the security check point,

the employees would not be allowed to perform their

duties within the airport and the likely result is that the

employer would lose his contract with the airport.

Therefore, going through security primarily benefits

the employer in this case.

Therefore, although it was a_ preliminary

activity, as shown above, once it became integral and

indispensable to the principal activity, the preliminary

activity became a principal activity and should

therefore not fall under the Portal-to-Portal Act, and

should remain under the coverage of the FLSA.

CONCLUSION

The petition should be granted for the above mentioned

reasons.

MARINA TRAMONTOZZI

Counsel of Record

JAMIE H. ZIDELL

J.H. Zidell, P.A.

300 71st St Ste 605

Miami Beach, FIL 33141

(305) 865-6766

Fax: (305) 865-7167

No. 06-12515

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

PERCY BONILLA, MIGUEL HERNANDEZ,

CARLOS CRUZ, MICHAEL MACHADO, JULIO J.

ALVAREZ, GERMAN SANDOVAL, CARLOS

CASTRO, EDGARDO AVILA, JOSE A. CABRERA,

PORFIRIO VARELA, ERMIN TALAVERA,

Plaintiffs-Appellants,

versus

BAKER CONCRETE CONSTRUCTION, INC.,

Defendant-Appellee.

May 30, 2007, Decided

May 30, 2007, Filed

JUDGES: Before BLACK, BARKETT AND

KRAVITCH, Circuit Judges.

OPINION BY: KRAVITCH

OPINION

KRAVITCH, Circuit Judge:

This case concerns whether time workers spent

traveling on employer-provided transportation to a

secure construction site or time spent going through

security screening is compensable under the Fair Labor

Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.

Appellants Percy Bonilla, et al. ("appellants"), plaintiffs

in the underlying dispute, appeal the district court's

summary judgment order in favor of appellee-

defendant, Baker Concrete Construction, _ Ine.

("appellee"), After careful consideration of the briefs,

oral argument, and evidence in the record, we

AFFIRM the district court's order.

I. BACKGROUND

Appellants were construction workers employed by

appellee, a subcontractor for the lead contractor

Turner-Austin, for the North Terminal project at

Miami International Airport ("MIA project") from

approximately November 2001 until March 2003. n1

In order to reach their work sites inside the airport,

appellants were required to pass through a single

security checkpoint to the tarmac and then ride

authorized buses or vans to their particular work site.

Because FAA _ regulations prohibit unauthorized

vehicles in the secured tarmac area, Turner-Austin

provided free buses or vans to transport appellants and

other workers from the free employee parking lot to

the security gate and on through to each of the separate

work sites. Appellants were not required to park at the

employee lot, but they were required to enter the

facility through the single authorized security entrance

and then ride the contractors’ authorized vehicles to the

various work sites. The security gate was near other

public parking lots and a public bus stop; appellants

were free to meet the authorized vehicle at the security

gate rather than at the employee parking lot several

miles away. Riding Turner-Austin's authorized vehicles

was the only way for the workers to access the

construction sites after passing through the security

gate.

The employees did not perform any labor while waiting

for or riding the vehicles, either at the beginning or end

of each work [*3] day. No instructions were given by

the supervisors nor were any tools carried on the buses

because the tools were kept at the work sites.

Appellants signed in at the work site and then received

their instructions for the day. At the end of the day,

appellants would sign out before boarding the bus to

leave the airport through the security gate.

Although’ appellants claim that appellee or Turner

Austin supervisors did work on the vehicles and at the

security gate (head counts and general supervision),

appellants do not claim that they had any

responsibilities or duties before arriving at their

respective sites other than to show their identification

at the security gate and carry their personal safety

equipment, including safety goggles, a hard hat, and

work boots. Appellants point to the contractors’

agreement with the airport, the Construction Related

Requirements ("CRR"), that requires all employees to

display their personal safety equipment as a condition

of being transported to the job site. Appellee disputes

appellants’ claim that there was any evidence that

employees were required to carry their personal safety

equipment on the bus.

Appellants were not paid by appellee for the [*4] time

spent riding the buses or vans. There were no

allegations that appellee, Turner-Austin, or any

representative of appellee ever discussed with

appellants whether they would be paid for the time

waiting for or riding the authorized buses, nor were

there any requests by appellants to be paid for this

time.

II. DISCUSSION

We review the district court's grant of summary

judgment de novo. Gibson v. RTC, 51 F.3d 1016, 1020

(11th Cir. 1995). This appeal presents a question of

statutory interpretation. Section 4(a) of the Portal-to-

Portal Act, 29 U.S.C. § 254(a), exempts certain

activities from compensation under the FLSA, 29

U.S.C. §§ 201 et seq. The question before us is whether

appellants’ time spent riding the buses or going

through airport security constitutes such an exception.

The Act exempts the following activities from

compensation:

(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, [*5] which occur

either prior to the time on any particular workday at

which such employee commences, or subsequent to the

time on any particular workday at which he ceases,

such principal activity or activities....29 U.S.C. § 254(a).

Under the plain meaning of section 254(a), this case

pivots on whether appellants are engaging in any work-

related activity before arriving at their work sites

inside the airport tarmac. If appellants were merely

traveling to their "actual place of performance of the

principal activitlies]" before beginning any work

activity, |*6] then section 254(a)(1) exempts such

traveling from compensation under the FLSA. But, if

appellants, by boarding those buses, going through

security, or carrying their personal safety equipment,

are engaging in work-related activity that is "integral

and indispensable" to their work, then any travel

afterwards is compensable. JBP, Inc. v. Alvarez, 546

USS. 21, 37, 126 S. Ct. 514, 525, 163 L. Ed. 2d 288 (2005)

("{AJny activity that is ‘integral and indispensable' to a

‘principal activity’ is itself a ‘principal activity’ under

[29 U.S.C. § 254(a)] of the Portal-to-Portal Act.

Moreover, during a continuous workday, any walking

time that occurs after the beginning of the employee's

first principal activity is excluded from the scope of the

provision, and as a result is covered by the FLSA.").

a) Travel Claim

The district court found that it is “undisputed that the

actual place of performance of the principal activity or

activities which [appellee] employed [appellants] to

perform was the Project jobsite at MIA's North

Terminal," and that it “is also undisputed that

[appellants] did not perform any work either when

waiting for [*7] the buses or while they were riding

the buses." We find nothing in the record to contradict

this conclusion. As stated above, the parties disagree as

to whether appellants were required to carry their

personal safety gear on the buses. But we do not find

this dispute to be material to the issue at hand because

our analysis of the Portal-to-Portal Act would be the

™~

same regardless. See Danskine v. Miami Dade Fire

Dep't, 253 F.3d 1288, 1292-93 (11th Cir. 2001) ("A factual

dispute is genuine only if the evidence is such that a

reasonable factfinder could return a verdict for the non-

moving party.") (internal quotations and citation

omitted).

The Department of Labor has issued interpretive

statements giving examples of non-compensable travel

under § 254(a). These statements are not promulgated

regulations because Congress did not authorize the

Secretary of Labor to issue regulations regarding the

scope of the exemptions. 29 C.F.R. § 790.1(c); see

Gonzales v. Oregon, 546 U.S. 248, 126 8. Ct. 904, 914-15,

163 L. Ed. 2d 748 (2006) ("Deference in accordance with

Chevron, however, is warranted only when it appears

that Congress delegated authority [*8] to the agency

generally to make rules carrying the force of law, and

that the agency interpretation claiming deference was

promulgated in the exercise of that authority.")

(citation and quotation omitted).

Here, however, the _ illustrative examples are

persuasive and should be given due deference. See

Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct.

161, 164, 89 L. Ed. 124 (1944) ("[Rlulings,

interpretations and opinions of the Administrator

under this Act, while not controlling upon the courts by

reason of their authority, do constitute a body of

experience and informed judgment to which courts and

litigants may properly resort for guidance. The weight

of such a judgment in a particular case will depend upon

the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier and

later pronouncements, and all those factors which give

it power to persuade, if lacking power to control."). In

this case, the DOL's interpretation of § 254(a) speaks

directly to the issue at hand:

Examples of walking, riding, or traveling which may be

performed outside the workday and would normally be

considered "preliminary" or ‘"postliminary" {[*9]

activities are (1) walking or riding by an employee

between the plant gate and the employee's lathe,

workbench or other actual place of performance of his

principal activity or activities; (2) riding on buses

between a town and an outlying mine or factory where

the employee is employed; and (3) riding on buses or

trains from a logging camp to a particular site at which

the logging operations are actually being conducted.29

C.F.R. § 790.7(£).

The plain language of section 254(a)(1) excludes

"walking, riding, or traveling to and from the actual

place of performance of the principal activity or

activities." The appellants’ claim regarding the time

spent on the employer vehicles both before and after

the security check point fits squarely within this

statutory exception, and the administrative

interpretation of the statute also specifically addresses

the question of transportation to and from the work

site. The fact that the workers were required to ride

authorized transportation after the security gate but

the transportation to the security gate was optional is

not relevant to the outcome of this case because even

mandatory travel time is exempted from [*10]

compensation under the Portal-to-Portal Act. We

therefore hold that the time appellants spent traveling

on the vehicles both before and after the security check

point is exempt from compensation under the FLSA. n3

b) Security Screening Claim

Unlike the time spent riding the employer vehicles, the

time appellants spent going through airport security is

not exempted under § 254(a)(1), so we must determine

if this security screening is exempted under another

provision. n4 Section 254(a)(2) exempts "activities

which are preliminary to or postliminary to said

principal activity or activities." The Supreme Court has

interpreted this section to apply when an activity

before or after the principal work activity is not an

"integral and indispensable part of the principal

activities for which covered workmen are employed and

are not specifically excluded by Section [254(a)(1)]."

Steiner v. Mitchell, 3350 U.S. 247, 256, 76 S. Ct. 330,

335, 100 L. Ed. 267 (1956).

The former Fifth Circuit analyzed several factors to

determine whether preliminary or _ postliminary

activities are so "integral and indispensable" as to be

compensable. Dunlop v. City Elec., Inc., 527 F.2d 394,

398-400 (5th Cir. 1976). n5 The factors to be considered

are: (1) whether the activity is required by the

employer, (2) whether the activity is necessary for the

employee to perform his or her duties, and (3) whether

the activity primarily benefits the employer. /d. at 401.

In this case, the screening was required by the FAA,

and appellee had no discretion as to whether its

employees would be screened. See 49 C.F.R. § 1540.107;

see also Civil Aviation Security Rules, 67 Fed. Reg.

8340 at 8354 (Feb. 22, 2002). So although the screening

was necessary for the employees to perform their work,

appellee did not primarily--or even particularly--benefit

from the security regime.

Appellants place great weight on the necessity of going

through the screening in order to do their jobs. But the

"integral and indispensable" test is not a but-for test of

casual necessity. "[T]he fact that certain preshift

activities are necessary for employees to engage in

their principal activities does not mean that those

preshift activities are ‘integral and indispensable’ to a

‘principal activity’ under Steiner." JBP, 546 U.S. at 40-

41, 126 S. Ct. at 518. If mere causal necessity was

sufficient to constitute a compensable activity, all

commuting would be compensable because it is a

practical necessity for all workers to travel from their

homes to their jobs. If the Portal-to-Portal Act is to

have any meaning at all, its terms cannot be swallowed

by an_ all-inclusive definition of “integral and

indispensable." n6

In IBP, the Supreme Court addressed whether the

time spent waiting to don protective clothing on the

employer's premises before engaging in productive

labor was compensable under the Portal-to-Portal Act.

IBP, 546 U.S. at 24, 126 S. Ct. at 518. The Court held, in

part, that the time workers spent waiting to don

protective gear necessary for productive labor was not

itself "integral and indispensable" to a_ "principal

activity." /BP, 546 U.S. at 42, 1268S. Ct. at 528.

This circuit has not interpreted the Portal-to-Portal Act

in a published opinion since the Supreme Court decided

IBP. n7 The statutory language of the exemptions does

not allow for a clean analytical distinction between

those activities that are "integral and indispensable"

and those that are not. But it is clear to us from the

Act's language and history that the activity in question

must be work in the benefit of the employer, and that

10a

the security screening mandated by the FAA in this

case is not compensable work. We therefore hold that

the time appellants spent going through the mandatory

security screening is not compensable under the FLSA

because that screening is not "integral [*15] and

indispensable" to a principal activity under J/BP,

Steiner, or Dunlop.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the district

court's grant of summary judgment in this case.

CONCUR

BLACK, Circuit Judge, concurring:

I concur in the result. I agree that the Appellants are

not entitled to compensation for the nonmandatory time

spent traveling from the parking lot to the security

checkpoint. They are also not entitled to compensation

for the mandatory time spent from the security

checkpoint to their official job sites.

1The district court granted summary judgment to

appellee regarding Plaintiff Jose Cabrera on the ground

that Cabrera was never employed by appellee nor had

any joint employer relationship. This ruling is not

appealed.

2The terms of § 254(a) are limited by § 254(b), which

allows compensation provided by contract or custom.

But the only evidence that appellants point to

lla

regarding custom is the CRR, which requires workers

to have identification and prohibits unauthorized

vehicles within the airport. The CRR does not amount

to a contract or custom that would limit the effect of §

254(a). Appellants do not assert that § 254(b) applies

either.

3Circuits which have addressed the issue concur. See

Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th

Cir. 2006) (holding that gas-drillers in New Mexico

were exempt from FLSA compensation for travel that

ranged from thirty minutes to three-and-a-half hours

each way); Reich v. New York City Transit Auth., 45

F.3d 646, 651 (2d Cir. 1995) (holding that dog handlers'

commutes are not compensable just because they bring

their dogs into work, and also noting that the Portal-to-

Portal Act exemptions "properly protect employers

from responsibility for commuting time and _ for

relatively trivial, non-onerous aspects of preliminary

preparation, maintenance and clean up"); Vega v.

Gasper, 36 F.3d 417 (5th Cir. 1994) (holding that the

four hours workers spent traveling on their employer's

bus each day was not compensable under the Act); and

Ralph v. Tidewater Constr. Corp., 361 F.2d 806 (4th

Cir. 1966) (holding that time workers spent traveling on

an employer's boat to a construction site was not

compensable under the Act).

4The district court specifically ruled that time spent in

security screening was not compensable under the

FLSA, and the appellants appealed the court's order

regarding the contested traveling time, which logically

includes the entire time spent in security screening.

5The Eleventh Circuit has adopted as precedent the

12a

decisions of the former Fifth Circuit rendered prior to

October 1, 1981. See Bonner v. City of Prichard, 661

F.2d 1206, 1209 (1lth Cir. 1981) (en bance).

6The legislative history of the Portal-to-Portal Act

underscores the scope of the exemptions from

compensation. In 1946, the Supreme Court decided

Anderson v. Mt. Clemens Pottery Co., holding that

employees were entitled to compensation for the time

they spent walking from the time clock to the

workstation. 328 U.S. 680, 690-91, 66 S. Ct. 1187, 1194,

90 L. Ed. 1515 (1946). The year after Anderson was

decided, Congress passed the Portal-to-Portal Act

specifically exempting travel time-even within the

employer's premise-from FLSA — compensation

requirements when the workers had not yet engaged in

productive activity. See JBP, 546 U.S. at 26, 126 S. Ct.

at 519.

7Appellants rely on an unpublished decision of this

court interpreting the Portal-to-Portal Act. Burton v.

Hillsborough County, 181 Fed. Appx. 829 (11th Cir.

2006) (unpublished). Unpublished opinions are not

controlling authority and are persuasive only insofar as

their legal analysis warrants. See United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1138 n.4 (11th Cir.

2004). Burton is not persuasive because its facts are

materially different from this case.

In Burton, the county employees' duties required them

to drive the county vehicles to and from various public

works locations and to always return the county vehicle

to a secured county facility overnight. This court found

that the time the employees spent driving from the

secured county location to the various work sites was

compensable under the FLSA because picking up and

l3a

delivering the county vehicles to the county lots was

integral and indispensable to the employees’ principal

activities. Burton, 181 Fed. Appx. at 837. In addition,

Burton found that the vehicles served as satellite

offices for those employees to do their jobs at the

various sites and tools necessary for the work were

locked in the county vehicles. Id. In Burton, driving the

vehicles was not merely part of the employees'

commute to the principal place of performance but

rather an aspect of that job performance.

Furthermore, Burton concerned the interpretation of

an amendment to the Act not relevant to this case.

Burton examined the Employee Commuting Flexibility

Act of 1996, which amended the Portal-to-Portal Act by

adding the following language:

For purposes of this subsection, the use of an

employer's vehicle for travel by an employee and

activities performed by an employee which are

incidental to the use of such vehicle for commuting shall

not be considered part of the employee's principal

activities if the use of such vehicle for travel is within

the normal commuting area for the employer's business

or establishment and the use of the employer's vehicle

is subject to an agreement on the part of the employer

and the employee or representative of such employee.

29 U.S.C. § 254(a).

Although the Burton court applied the same "integral

and indispensable" analysis that is at issue here,

Burton's conclusion that the time spent by the

employees driving their county vehicles is compensable

does not support the same conclusion in this case. Not

only are the relevant facts in Burton easily

l4a

distinguishable, we emphasize that as an unpublished

case, Burton's analysis does not bind us.

15a

Filed: 3/30/06

Case No, 02-23286-CIV- LENARD/SIMONTON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CONSENT CASE

PERCY BONILLA, et al.,

Plaintiffs,

BAKER CONCRETE CONSTRUCTION, INC,

Defendant.

ORDER GRANTING DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT AND DENYING

PLAINTIFFS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT

Presently pending before the Court are Defendant’s

Motion To Dismiss (DE # 55), Defendant’s Motion For

Summary Judgment (DE # 56) and Plaintiffs’ Motion

for Partial Summary Judgment As To Liability (DE #

86). Pursuant to the consent of the parties, this case is

referred to the undersigned Magistrate Judge for final

disposition (DE # 47). The motions are fully briefed (DE

##87, 91, 92, 97, 98, 99,141,103,104). For the reasons

stated below, Defendant’s Motion for Summary

Judgment is granted, Defendant’s Motion To Dismiss is

deemed moot, and Plaintiffs Motion for Partial

Summary Judgment is denied.

[. Introduction

Plaintiffs Perey Bonilla, Miguel Hernandez, German

l6a

Sandoval, Carlos Castro, Edgardo Avila, Jose A.

Cabrera, Porfirio Varela and Ermin Talavera

(hereafter Plaintiffs) are proceeding under their V

Amended Complaint against Defendant Baker

Concrete Construction, Inc. (hereafter referred to as

“Defendant”) (DE # 19).' In their Complaint, Plaintiffs

bring this action under the Fair Labor Standards Act

(FLSA), 29 U.S.C. $201 et seq. Plaintiffs allege that,

during the time period from approximately November

2001 through March 2003, while they while they were

employees of Defendant working for varying periods of

time as construction workers on the Miami

International Airport North Terminal Program, they

worked completely non-compensated hours and

overtime hours, as well as partially compensated

overtime hours (DE # 19).

As relief, Plaintiffs seek damages, double damages and

reasonable attorney fees for all overtime wages,

straight time wages and minimum wages still owing

from each Plaintiffs entire employment period with

Defendant, or as much as is allowed by the FLSA,

whichever is greater. Plaintiffs also seek court costs

and interest and any other relief which this Court finds

reasonable under the circumstances (DE # 19).

Defendant has filed an Answer and Defenses to the

Third Amended Complaint (DE # 20). These motions

followed.

Il. The Summary Judgment Motions’

A. Defendant’s Motion For Summary Judgment

Defendant contends that it is entitled to summary

17a

judgment because the time that Plaintiffs spent waiting

for and riding on buses to and from the job site was

merely an extended home to work and back commute,

which was not compensable under the FLSA.

Defendant relies on the Portal-to-Portal Act, 29 U.S.C.

254(a), and cases interpreting the statute. Defendant

argues that the bus rides occurred prior to work

commencement and subsequent to work cessation, and

were clearly activities which were preliminary to and

postliminary to Plaintiffs’ principal work activities, and

not activities which were indispensable to Plaintiffs’

principal work activities. Defendant notes that

Plaintiffs admit that 1) they did not perform any labor

while they were waiting for or riding on the buses; 2)

they kept their tools at the job site and carried only

their lunches on the buses; and 3) they did not receive

instructions for each days’ work until after they signed

in. Defendant also relies on the fact that there was no

express contract term to compensate Plaintiffs for

travel time (DE ## 56, 92). Defendant notes that the

only evidence which supports Plaintiffs’ position that

the time they spent on the buses to and from work were

indispensable to their jobs was the deposition answer of

a former employee of Defendant to a series of leading

questions from Plaintiffs’ counsel (DE # 92 at 8-9).

Defendant also objects to Plaintiffs’ reliance on the

depositions, taken in another case, of persons who were

not employed by Defendant (DE # 92 at 2-4).’

Furthermore, Defendant contends that Plaintiffs’

overtime rate claim is moot because the claimed

injuries have been remedied either before or after the

filing of the lawsuit and there is no reasonable

likelihood of recurrence because none of Plaintiffs are

still employed by Defendant. Defendant states that it

18a

has tendered to Plaintiffs all sums due to them because

of Defendant’s miscalculation of the formula used to

calculate Plaintiffs’ overtime payments, and it also has

served offers of Judgment in excess of the maximum

amount recoverable under those claims (DE # 56).

Defendant further contends that 1) Plaintiffs’ overtime

rate claim is moot regardless of the resolution of the

travel time claim; 2) Defendant provided an affidavit

setting forth the amounts of the payments made in

resolution of the overtime rate claim and the method by

which the amount was calculated; and 3) the affidavit

clearly states that the offered payments were for hours

worked and that travel time was not included (DE # 92

at 15-16).

B. Plaintiffs’ Motion For Partial Summary Judgment

Plaintiffs move for summary judgment on liability on

the travel time issue. They ask this Court to determine

that their transport time is compensable under the Fair

Labor Standards Acton the grounds that the transport

time is indispensable to each of Plaintiffs’ work for

Defendant. Plaintiffs contend that it was for

Defendant’s benefit that Plaintiffs used the buses to get

to the job site, and that travel on the buses was the only

way in which Plaintiffs could get to and from their work

at the Airport job site (DE # 86). Plaintiffs also rely on

29 C.F.R. 790.6(b). (DE # 91 at 3).

Plaintiffs, relying on Fed.R.Civ.P. 56(c), also contend

that depositions from another case can be filed in

support of Plaintiffs’ motion for partial summary

judgment, because the four persons whose depositions

were submitted were disclosed by Plaintiffs as trial

witnesses. Plaintiffs argue that Defendant made no

19a

effort to depose the individuals (DE # 91).

As to the overtime rate issue, Plaintiffs contend that

should this Court determine that the claimed transport

time is compensable under the FLSA, the amount of

overtime owed to Plaintiffs would have to be adjusted.

Plaintiffs further assert that the value of the restitution

to them from Defendant is too speculative absent this

Court’s determination of whether travel time is

compensable. Plaintiffs next contend that Defendant

has set forth no specific proof as to the amounts it

purportedly paid each Plaintiff for the deficient

overtime payments and has not set forth how it

calculated those amounts. Finally, Plaintiffs assert that

Defendant did mention whether the payments offered

were for hours worked or included the requested travel

time (DE # 86).

III. Undisputed Material Facts

The material facts in this case are _ essentially

undisputed. The following facts are taken from both

Plaintiffs’ Statement of Material Facts (DE # 87) and

Defendant’s Statement of Undisputed Material Facts

(DE # 56 at 3-12).

A. The Airport Project

From at least November 2001 through March 2003,

Defendant was involved in a construction project at

Miami International Airport (hereafter MIA), the CD

Terminal Infill Project (hereafter “the Project”).

Plaintiffs worked on that project.

The Project involved the construction of a new aircraft

20a

terminal building at MIA’s North Terminal. Turner-

Austin, the construction manager of the airport project,

employed Defendant Baker directly as a subcontractor

on the Project. At various times, the number of

Defendant’s employees on the Project ranged between

35 and 100.

Defendant employed Plaintiffs Bonilla, Cruz, Castro,

Avila, Hernandez and Machado as laborers. Defendant

employed Plaintiffs Talavera, Varela and Dinarte as

carpenters. Plaintiff Sandoval worked in a “safety”

position building hand-railings and similar features.

B. Plaintiff Cabrera Has Never Worked For Defendant

Plaintiff Cabrera performed iron work on the Project

but actually worked for Dalecom Construction, not

Defendant. Defendant has never employed Cabrera.

Defendant does not have a joint employer relationship

with either Dalecom or with Dalecom’s successor

company, Cuesta Construction, and Plaintiffs have

never alleged that Defendant has a joint employer

relationship with either Dalecom or Cuesta.”

While Cabrera testified at his deposition that he

believed he worked for Defendant and not Dalecom

because he worked in the same group as Defendant’s

employees, Cabrera admitted that he did not sign any

papers for Defendant at the time he was hired. Cabrera

received his paychecks from Dalecom and he received

his end of year tax filing documents from Dalecom’s

successor company, Cuesta Construction.

C. The Travel Issue

1. Background

When the Project began in 1999, Defendant received,

for the use of its employees, a large parking area near

the airport, located off Milam Dairy Road, which was

approximately one-half mile from an airport security

gate.

From 1999 through 2000, Defendant used two 15-

passenger vans to transport its employees through the

security gate to the job site each morning. At the end of

the work day, the employees rode the vans back from

the job site to the parking area.

Defendant was required to transport its employees

through the security check point to the job site because

FAA regulations prohibited the general public from

driving on the airport tarmac. Each of Defendant’s

employees was required to have a picture identification

badge to get through the security gate to the job site.

When the buses arrived at the security gate from the

parking lot, Defendant’s employees would exit the bus

to run their security badges through scanning

machines, and then re-enter the bus to travel to the job

site. When Defendant’s employees left the job site at

the end of the work day, the same process was repeated

in reverse.

Sometime in 2000, the airport stopped allowing

Defendant to use the original parking area, and

provided a new parking area, also located off Milam

Dairy Road. At that time, Defendant Baker stopped

using the 15 passenger vans to transport its employees

to the job site and back because the vans were no

longer adequate to transport the employees because

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Defendant had hired more employees as the Project

progressed. The employees then began to ride buses

provided by Turner-Austin because, due to the large

number of people working on the airport construction

projects, the consolidation of employees into larger

vehicles helped to prevent traffic jams on the tarmac.

The buses were free to Defendant’s employees.

However, even after the Turner-Austin buses were

made available to Defendant’s employees, the

employees sometimes used the 15 passenger vans

when, at odd times, a small number of Defendant’s

employees were either entering or leaving the job site.®

As Defendant hired new employees for the Project,

Defendant’s office manager told the employees that

free off-site parking was available at the Milam Dairy

lot, and bus transportation to the job site was available

from the lot. Employees of other construction

companies also parked at the lot and rode the Turner-

Austin buses to work. The buses left between 5:30 a.m

and 6:30 a.m. each day. Defendant’s employees also had

the option of paying to park in a public parking lot. By

using the free parking lot and the bus transportation,

Defegdant’s employees did not have to pay for

expensive public parking at the airport.

To get from the security gate either to the job site or

elsewhere on the tarmac, Defendant’s employees had to

ride in one of Defendant’s vans, one of Turner-Austin’s

buses, or in another authorized vehicle. The employees’

private vehicles were not authorized vehicles.

Contractors’ employees were not permitted to walk

from the security gate to the job site, but were required

to ride in authorized vehicles. However, Defendant's

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employees also had the option to board the Turner-

Austin buses at the security gate. Every day, some of

the construction workers working at the airport would

board the Turner-Austin buses at the security gate

when going to work, and some of the workers also

exited the Turner-Austin buses at the security gate

when leaving work. In the immediate vicinity of the

security gate there was a public bus stop and a taxi cab

stand. Employees had been known to use alternative

transportation to the security gate. Nothing prevented

Defendant’s employees from walking from the parking

lot to the security gate, beside the fact that it was a

long walk, approximately 3.2 miles.

Defendant’s employees did not perform any labor or

work either while they were waiting for the buses or

while they were riding on the buses, either before or

after work.

Defendant’s employees did not receive any instructions

from their foremen or their supervisors while they

were waiting for or riding on the buses. Defendant’s

employees kept their tools in the tool box at the job site

rather than carrying them back and forth each day.

Defendant’s employees carried nothing with them on

the buses except their lunches.

When Defendant’s employees arrived at the job site

they signed in. They then received their instructions for

the day’s work, at 7:00 a.m. The last thing Defendant’s

employees did after completing their daily work was

sign out. When Defendant’s employees filled out their

time sheets, they did not include time they spent

waiting for or riding on the bus. Defendant’s employees

were paid from the time they arrived at the job site and

24a

filled out their sign-in sheets. Defendant did not pay its

employees wages for the time the employees spent

traveling to and from the job site either in Defendant’s

vans or in the Turner-Austin buses.

Defendant had no employment agreement with any

Plaintiff. Plaintiffs did not have any agreement with

Defendant that they would be paid for the time they

spent waiting for or riding on the buses. No

representative of Defendant ever discussed with any

Plaintiff whether he would or should be paid for the

time that they spent waiting for or riding on the buses.

Plaintiffs never requested to be paid for the time they

spent waiting for or riding on the buses.

D. The Overtime Rate Issue

Defendant’s employees were paid hourly. Each

employee’s pay rate was based on Department of Labor

prevailing wage rates depending on the employee’s

craft. The prevailing wage rates were based on a union

scale as specified by the Department of Labor.

Defendant also followed Dade County Ordinance 2-1

1.16 governing hourly rates for employees working on

projects at Miami International Airport. The employee

wage rates were published in Defendant’s contract with

Turner-Austin.

Defendant did not provide its hourly employees with

benefits, but in lieu of benefits, Defendant paid its

employees a health and welfare cash equivalency. For

example, an employee who made $20.00 per hour might

receive a health and welfare benefit of $2.50 per hour,

so that his paycheck would reflect gross pay of $22.50

for each regular hour worked.

25a

For the purpose of calculating overtime payments,

Defendant followed the requirements of the Davis-

Bacon Act, under which an employer is not required to

include the health and welfare cash equivalent benefit

when calculating overtime payments. Because the Dade

County wage ordinance applicable to the contract

contained numerous references to the Davis-Bacon Act,

Defendant believed that those provisions of the Davis-

Bacon Act concerning overtime payments governed its

obligations to pay overtime to Plaintiffs, and Defendant

paid its employees based on that belief.

For example, if an employee’s based rate was $20.00

per hour and his health and welfare cash equivalent

benefit was $2.50 per hour, Defendant paid the

employee a time and-a-half overtime rate of $30.00 per

hour, plus $2.50 per hour for the health and welfare

benefit, for a total of $32.50 for each overtime hour

worked.

During the period relevant to this litigation, Defendant

underwent a U.S. Department of Labor audit and

discovered a miscalculation in the formula which it used

to pay overtime to its employees. The Department of

Labor informed Defendant that the Davis-Bacon Act

did not apply to the project, and that the health and

welfare equivalency benefits should have been included

in Defendant’s calculation of overtime payments. Thus,

the employee in the above example should have been

paid $33.75 per overtime hour worked, rather than

$32.50. The amount of the shortfall for each employee

was one-half of the employee’s health and welfare cash

equivalency benefit for each overtime hour worked.

When it discovered the miscalculation, Defendant

26a

agreed to reimburse all of its employees for any

shortfall in overtime payments caused by the

miscalculation. Defendant worked with the Department

of Labor and the Department furnished Baker with

form releases to use in conjunction with the payments.

Defendant sent a notice, written in both English and

Spanish, to each of the affected employees, requesting

them to come to Defendant’s office to receive their

check and then sign a release. Many of the employees

did so. For most of the employees who did not pick up

their checks, Defendant sent their checks to the

Department of Labor for distribution, as requested by

the Department. After the filing of the instant lawsuit,

Defendant sent Plaintiffs’ checks to Plaintiffs’ counsel.

On December 24, 2003, Defendant served on Plaintiffs’

counsel Offers of Judgment offering principal sums in

excess of twice each Plaintiffs’ overtime shortfall,

together with interest and any attorney’s fees and costs

in order to compensate them for any conceivable loss

that they may have incurred. While the Department of

Labor did not require Defendant to pay double

damages to its employees, in the Offers of Judgment,

Defendant offered to pay Plaintiffs double damages,

representing twice the amount of the shortfall in

overtime payments resulting from the miscalculation.

IV. The Relevant Legal Standards

A. The Standard for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure

authorizes entry of summary judgment where the

pleadings and supporting materials show that there is

no genuine issue as to any material fact and that the

27a

moving party is entitled to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Denney v. City of Albany, 247 F.3d 1172,1181

(11th Cir. 2001). Summary judgment is an integral part

of the federal rules as a whole, which are designed to

secure a just, speedy, and inexpensive determination of

every action. Celotex Corp. v. Catrett, 477 U.S. 317

(1986). The court’s focus in reviewing a motion for

summary judgment is “whether the evidence presents a

sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must

prevail as a matter of law.” Allen v. Tyson Foods, Inc.,

121 F. 3d 642, 646 (11th Cir.1997). In assessing whether

the movant has met its burden, the courts should view

the evidence and all factual inferences therefrom in the

light most favorable to the party opposing the motion

and all reasonable doubts about the facts should be

resolved in favor of the non-movant. See Denney v.

City of Albany, 247 F.3d at 1181.

The moving party has the burden to establish the

absence of a genuine issue as to any material fact.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);

Allen v. Tyson Foods, Inc., 121 F.3d at 646. Once the

moving party has established that no genuine issue of

material fact exists and that it is entitled to judgment

as a matter of law, the burden shifts to the non-movant

to come forward with a response setting forth “specific

facts” showing that there is a genuine issue for trial.

Thus, the party opposing summary judgment may not

rest upon the mere allegations or denials of the

pleadings, but must present sufficient evidence

favoring the non-moving party for a jury to return a

verdict in favor of that party. Anderson v. Liberty

Lobby, Inc., 477 U.S. at 249.

28a

Conclusory allegations will not suffice to create a

genuine issue of material facts. See Leigh v. Warner

Bros Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). There

must be more than a scintilla of evidence; there must be

“substantial conflict in evidence to support a jury

question.” Tidewell v. Carter Prods., 135 F.3d 1422,1425

(11 Cir.1998), quoting Carter v. City of Miami, 870

F.2d 578, 581 (11 Cir.1989). Ultimately, “[wJhere the

record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, there is no

genuine issue for trial.” Allen v. Tyson Foods, 121 F.3d

at 646; accord Denney v. City of Albany, 247 F.3d at

1181. “At the summary judgment stage, |the plaintiff]

bears the burden of coming forward with sufficient

evidence to create genuine issues of material fact

regarding each of thle] elements [of the prima facie

ease].” Harris v. H&W Contracting Co., 102 F.3d 516,

523 (11th Cir.1996 ).

V. Analysis

A. Defendant Is Entitled To Summary Judgment as to

Plaintiff Cabrera

Defendant is entitled to summary judgment as to the

claims brought by Plaintiff Jose Cabrera. The record

contains substantial evidence that Cabrera was never

employed by Defendant. Cabrera has not provided any

evidence that he was employed by Defendant.

Defendant contends that it is entitled to summary

judgment concerning the claims brought by Plaintiff

Jose Cabrera because there is no material issue of fact

that Cabrera did not work for Defendant. Plaintiff

Cabrera does not controvert Defendant’s position.

29a

The record evidence establishes that Plaintiff Cabrera

performed iron work on the Project, but that he worked

for Dalecom Construction, Inc., not Defendant. Cabrera

testified at this deposition that he was paid by Dalecom

Construction, and that he received his W-2 form from

Cuesta Construction (DE # 72 at 10-12). This is

consistent with the pay stubs and the W-2 for the

relevant period which Cabrera provided to Defendant

in discovery. Defendant asserts that it has never

employed Cabrera (Affidavit of Jeffery Arnold, Ex. B

to DE # 56, at 7,113). Cabrera testified at his deposition

that he did not remember signing any papers with

Defendant (DE # 72 at 14).

Furthermore, Plaintiffs have never alleged that

Defendant has a joint employer relationship with either

Dalecom Construction or with Dalecom’s successor

company, Cuesta Construction. Defendant states that it

does not have a joint employer relationship with either

Dalecom Construction or Cuesta Construction.

The only evidence that Cabrera worked for Defendant

is Cabrera’s deposition testimony that he believed he

was working for Defendant because some people he

was working with were working for Defendant.

Cabrera’s unsupported belief that he worked for

Defendant is_ insufficient to defeat Defendant’s

summary judgment motion. Cf. Coutu v. Martin County

Bd. of County Commn’rs, 47 F.3d 1068,1074 (11th

Cir.1995) (a plaintiffs mere belief, speculation, or

conclusion that he was subject to discrimination does

not create an inference of discrimination or satisfy his

burden).

Therefore, summary judgment is entered for Defendant

30a

as to all claims brought by Plaintiff Jose Cabrera.

B. Defendant Is Entitled To Summary Judgment on the

Travel Time Issue

Defendant is entitled to summary judgment on the

travel time issue. The time which Plaintiff spent

traveling to work in buses from the parking lot, to and

through the security gate, and then to the job site, and

the return trip after work, was merely travel time,

which is not compensable under the FLSA.

Plaintiffs argues that the time spent traveling before

work from the Milam Dairy Road parking lot to the

MIA security gate, and from the security gate to their

job site on the MIA North Terminal, as well as the

return trip at the end of the day after work, is

compensable time under the FLSA. Plaintiffs contend

that because they had no means of reaching the job site

other than the ride the buses provided by Turner-

Austin or Defendant’s vans, the ride became a

indispensable activity conducted for Defendant’s

benefit, taking the ride outside the Portal Act’s

exemption.’ Defendant responds that the travel time is

not compensable pursuant to the Portal-to-Portal Act

(hereafter “the Portal Act”), 29 U.S.C. §254(a).

The Portal Act, 29 U.S.C. §254(a), states, in pertinent

part, as follows:

(a) ... no employer shall be subject to any liability or

punishment under the Fair Labor Standards Act.. on

account of the failure of such employer to pay an

employee minimum wages, or to pay an employee

overtime compensation, for or on account of any of the

dla

following activities of such employee engaged in on or

after May 14, 1947 -

(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, which occur either

prior to the time on any particular workday at which

such employee commences, or subsequent to the time

on any particular workday at which he ceases, such

principal activity or activities. . .

(b)... Notwithstanding the provisions of subsection (a)

of this section which relieve an employer from liability

and punishment with respect to any activity, the

employer shall not be so relieved if such an activity is

compensable by either

(1) an express provision of a written or

nonwritten contract in effect, at the time of such

activity, between such employee, his agent, or

collectivebargaining representative and his employer;

(2) a custom or practice in effect, at the time of

such activity at the establishment or other place where

such employee is employed, covering such activity, not

inconsistent with a written or nonwritten contract, in

effect at the time of such activity between such

employee, his agent, or collective bargaining

representative and his employer.

In determining whether an employee is entitled to

compensation under the FLSA, this Court must

construe broadly the scope of activities covered by the

FLSA, and must construe narrowly those activities

32a

exempted by the Portal Act. See Dunlop v. City

Electric, Inc., 527 F .2d 394, 399 (5th Cir.1976).°

It is undisputed that the actual place of performance of

the principal activity or activities which Defendant

employed Plaintiffs to perform was the Project job site

at MIA’s North Terminal. It is also undisputed that

Plaintiffs did not perform any work either when

waiting for the buses or while they were riding on the

buses. Plaintiffs did not receive any instructions from

their foremen or supervisors while they were waiting

for or riding on the buses. Plaintiffs kept their tools in

the tool box at the job site and did not carry them back

and forth on the buses. Plaintiffs did not include on

their time sheets the time they spent waiting for or

riding on the bus, and Defendant did not pay Plaintiffs

wages for the time they spent traveling to and from the

job site. Thus, when viewed as commuting time,

Plaintiffs’ travel to and from the job site is excluded

under the plain language of Section 254(a)(1), unless

Plaintiff can show, under Section 254(b), that the

transportation time is compensable by either an

express provision of a written or nonwritten contractor

by a custom or practice in effect which is not

inconsistent with a written or nonwritten contract. See

e.g. Kavanagh v. Grand Union Co., 192 F.3d 269, 272-73

(2d Cir.1999).

While it appears that the use of authorized vehicles to

get to and from the security gate to the job site was

mandatory, there is no record evidence of any contract

or representation by Defendant that Plaintiffs would be

compensated for their travel time to and from the

parking lot to the job site. Plaintiffs did not have any

agreement with Defendant that they would be paid for

33a

the time they spent waiting for or traveling on the

buses. In fact, the evidence is undisputed that the work

did not begin until Plaintiffs signed in at the job site.

Therefore construing the Portal Act’s exemptions

narrowly, the undersigned concluded that the Act’s

plain language excludes from compensation Plaintiffs’

travel time from the parking lot to the security gate,

from the security gate to the job site, and the return

trip at the end of the day. This interpretation of the

Portal Act is supported by the recent Supreme Court

case of IBP, Inc. v. Alvarez,126 S.Ct. 514 (2005).

In Alvarez, the Supreme Court found that the Portal

Act excludes from the FLSA time spent waiting to don

protective clothing. Id. at 527. Specifically, the Court

stated:

[Tlhe fact that certain preshift activities are necessary

for employees to engage in their principal activities

does not mean that those preshift activities are

‘integral and indispensable’ to a ‘principal activity’

under Steiner. For example, walking from a time clock

near a factory gate to a workstation is certainly

necessary for employees to begin their work, but it is

undisputable that the Portal-to-Portal Act evinces

Congress’ intent to repudiate Anderson’s holding that

such walking time was compensable under the FLSA.

We discern no limiting principle that would allow us the

conclude that the waiting time in dispute here is a

‘principal activity’ under, §4(a) and would thus be

unaffected by the Portal-to-Portal Act.

Id. at 527 (emphasis supplied). The Court also noted

that walking which occurred before the workday began

was excluded from the FLSA by the Portal Act. Id. at

34a

524.’ It is undisputed that Plaintiffs do not work on the

buses, that they do not carry their tools or receive

instructions on the buses, and that they sign in and out

at the job site. Since, as stated by the Supreme Court in

Alvarez, time spent walking to the job site after

clocking in is not compensable, a fortiorari, time spent

traveling to the location where one signs in is not

compensable travel time. The undersigned can discern

no meaningful distinction between walking to the job

site after clocking in, and riding to the job site after

passing through the FAA _ mandated _ security

checkpoint. Therefore, the Portal Act excludes from the

FLSA the time which Plaintiffs spent traveling to and

from the job site on the Turner-Austin buses. Accord

Vega v. Gasper, 35 F.3d 417,425 (5th Cir.1994) (time

spent each day traveling to and from work sites was not

compensable where the workers performed no work

prior to or while riding on the employer’s buses, where

they did not load tools or engage in activities that

prepared them or their equipment for picking chile

peppers before or while riding the buses, and where

they were not required to ride the buses to get to the

work site); Ralph v. Tidewater Construction Corp., 361

F.2d 806, 808 (4th Cir.1966) (riding 15 minutes to an

hour by boat from the shore to work is a preliminary

noncompensable activity); Smith v. Aztec Well

Servicing Co., 321 F.Supp.2d 1234,1237 (D.N.M. 2004)

(even if rig hands for oil and gas wells were required to

travel with their drillers to and from well sites, travel

time in and of itself was not “work” for which they had

to be compensated, as the main reason rig hands

traveled with drillers was for their own convenience, to

save wear and tear on their vehicles, and to save the

expense of traveling to and from work sites); Dolan v.

Project Construction Corp., 558 F.Supp. 1308,1309-11

(D. Colo. 1983) (30 minute ride from main camp to job

site on employer’s buses was not compensable even

though employees were required to use the buses due

to security and safety concerns, and intermittent

receipt of work information during the bus ride did not

make the ride compensable time).

Plaintiffs contend that their travel to and from the

parking lot to and from the job site is compensable

because that travel was actually an indispensable part

of their principal activities as Defendant’s employees.

Travel that is an indispensable part of performing one’s

job is a principal activity and is compensable. See Vega,

36 F.3d at 424. The indispensable travel principle is

typically applied where the travel is coupled with

performing tasks or transporting equipment without

which the employee’s job could not be done. See

Preston v. Settle Down Enters., Inc., 90 F.Supp.2d

1267, 1280 (N.D. Ga. 2000), citing Crenshaw v. Quarles

Drilling Corp., 798 F.2d 1345, 1349 (10 Cir. 1986)

(workers carried special equipment for servicing oil

rigs); D A & S Oil Well Servicing, Inc. v. Mitchell, 262

F.2d 552, 505 (10% Cir. 1958) (workers’ time spent

driving trucks hauling special equipment for servicing

oil rigs is compensable); Wirtz v. Sherman Enterprises,

Inc., 229 F.Supp. 746,752-53 (D. Md. 1964) (pinsetting

equipment installation crews had no principal place of

activity but traveled from one job site, finished a job,

and immediately departed to the next job site were

entitled to compensation for travel time between job

sites, as the travel was an indispensable part of the

principal activity). The indispensable travel principle

has also been applied where travel is necessary to

complete tasks once the workday has begun. See 29

C.F.R. $785.38 (“Time spent by an employee in travel

36a

as part of his principal activity, such as travel from job

site to job site during the workday, must be counted as

hours worked. Where an employee is required to report

to a meeting place to receive instructions or to perform

other work there, or to pick up and carry tools, the

travel from the designated place to the work place is

part of the day’s work, and must be counted as hours

worked regardless of contract, custom, or practice.”).

See also Preston, 90 F.Supp.2d at 1280 (travel time

from the company’s office to the job site was not

compensable where the plaintiffs were not required to

report to the office to receive instructions, but rather

arrived at the office on their own in hopes of securing

work on a day-to-day basis).

In Preston, the District Court denied summary

judgment between factual issues remained surrounding

the issue of whether the workers were free to proceed

to the job site on their own or if they were required to

report to the dispatcher to learn of their destination. 90

F Supp.2d at 1281. Here, by contrast, the undisputed

facts are that Plaintiffs that their destination was the

Project job site at MIA’s North Terminal and that

Plaintiffs knew that their work would not being until

they arrived there.

Plaintiffs’ transportation is analogous to the examples

of non-compensable travel given at 29 C.F.R. §790.7(f,

which states:

Examples of walking, riding, or traveling which may be

performed outside the workday and would normally be

considered preliminary or postliminary activities are (1)

walking or riding by an employee between the plant

gate and the employee's lathe, workbench or other

37a

actual place of performance of his principal activity or

activities; ... and (3) riding on buses or trains from a

logging camp to a particular site at which the logging

operations are actually being conducted.

This Department of Labor regulation is reasonable, and

is therefore entitled to Chevron deference. See Falken

v. Glynn County, 197 F.3d 1341, 1346 (11th Cir.1999)

(the DOL’s regulations implementing the FLSA are

accorded deference under Chevron U.S.A., Ine. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

842-43 (1984)).

Title 29 C.F.R. §790.7(h) also states that “an activity

which is a preliminary’ or ‘postliminary’ activity under

one set of circumstances may be a principal activity

under other conditions”. “Before it can be determined

whether an activity is ‘preliminary or postliminary to

(the) principal activity or activities’ which the employee

is employed to perform, it is generally necessary to

determine what are such ‘principal activities’. See 29

C.F.R. §790.8(a). While a principal activity “need not be

predominant in someway over all other activities

engaged in by the employee in performing his job, they

do not include noncompensable ~ walking, riding or

traveling’ of the type referred to in section 4 of the

Act.” Id.

Here, the undisputed facts show that Plaintiffs’ travel

time was not part of the principal activities which they

were employed to perform. Plaintiffs were laborers,

carpenters and or safety employees at the Project job

site. The travel at issue was not coupled with any work,

and occurred before any work was done, and after all

work was completed. Plaintiffs never received any

38a

instructions or work assignments before being dropped

off at the job site. Plaintiffs’ transportation to the job

site took place before the work day officially began, and

after the work day officially ended. See Smith, 321

F’ Supp.2d at 1237-38.

The cases relied on by Plaintiffs are not persuasive.

Dunlop is factually distinguishable. It did not deal with

travel time, but considered the plaintiffs’ tasks in

preparing to work such as “filling out daily time sheets,

material sheets, and supply and case requisition sheets,

removing from trucks trash accumulated during the

previous day’s work, loading the trucks with standard

materials and any additional materials needed.... fueling

the trucks, and picking up electrical plans for the day’s

job. These duties were to be completed before 8:00 a.m.

to enable the men to depart from the shop by the

beginning of their paid work day.” See Dunlop, 527 F.2d

at 397. The former Fifth Circuit analyzed the above

activities and found that they were “principal”

activities, and, thus, compensable. ld. at 400-01. The

situation in the instant case is factually distinguishable

from Dunlop because Plaintiffs’ ride on the buses to and

from the job site was not “performed as part of the

regular work of the employees”, and while it may have

been necessary in some way to Defendant’s business, it

was not work actually “performed by the employees.”

See Dunlop, 527 F.2d at 400-01.

For the same reasons, the case at bar is also factually

distinguishable from Steiner v. Mitchell, 350 U.S. 247,

255-56 (1956) (holding that changing clothes and taking

showers were necessary parts of the principal work

activities of the employees of a battery plant since

those acts limited the employees’ toxic exposure);

39a

Mitchell v.: Mitchell Truck Line, Inc., 286 F.2d 721, 724

(5th Cir. 1961) (holding that servicing, cleaning, loading,

and refueling trucks and driving them from a truck

yard to a material plant were indispensable parts of the

employee’s main activities), and McCormack v. City of

Miami Beach, U.S. Dist. LEXIS 20980 (1994) (Moore,

D.J) (denying cross-motions for summary judgment

because the issue of whether police officers’ exercise to

maintain the necessary physical criteria for their jobs

was of principal benefit to the city was a question of

fact for trial).

The undersigned also finds that Plaintiffs have

misplaced their reliance on Arriaga v. Florida Pacific

Farms LLC, 305 F.3d 1228,1240 (11th Cir. 2002).

Arriaga did not involve the Portal Act or the payment

of wages, but rather was concerned with whether

transportation costs paid for a single bus ride by

employees were primarily for the benefit of the

employer. In Arriaga, the Eleventh Circuit did reject

the District Court’s reliance on Vega, stating that

“{ajlthough Vega employs the same language as the

DOL regulations interpreting the FLSA - ‘primarily for

the benefit of the employer’ - the language is being

applied to statutes with difference concepts and

different purposes.” Id. at 1241. Thus, by its own

language, Arriaga is not applicable to this case, which

construes the Portal Act.

Similarly, in Preston, the District Court denied

summary judgment as to the compensability of the

plaintiffs’ return trip, holding that travel from the job

site back to the office would be compensable if it

primarily benefitted the employer and the employee

could not effectively use the time for his own purposes.

40a

90 F.Supp.2d at 1281. In this case, it is undisputed that

all compensable work activity effectively ended when

Plaintiffs left the job site. Thus, Plaintiffs here were

free to use their return travel time as they wished.

Reich v. New York City Transit Auth., 45 F.3d 646 (2d

Cir.1995), cited by Plaintiffs, supports this Court’s

finding that the travel time in this case is not

compensable. In Reich, the Second Circuit found,

relying on the Portal Act, that Transit Authority canine

unit police officers were not entitled to compensation

for their commute, even though they had to take their

canines to and from work in their private cars and could

not use public transportation. Id. at 652. The Second

Circuit found that the officers’ commuting involved

neither exertion nor loss of time and did not qualify as

work. Id. at 651. Similarly, Plaintiffs merely rode the

buses to and from the job site. This did not involve

either exertion or loss of time, and does not qualify as

work.

Plaintiffs’ reliance on Morillion v. Royal Packing Co.,

995 P.2d 139 (Cal. 2000) is also misplaced. This is a

California case which examined whether travel time

was compensable under a state wage order. The court

concluded that the Portal Act differed substantially

from the state scheme and should be given no

deference, and noted that the applicable state laws did

not contain the express exemption for travel time

which was found in the Portal Act. Id. at 147-48. The

court ultimately found that the travel time was

compensable under state law as the state Wage Order

provided California workers with greater protection

than the FLSA. Id. at 151. As Morillion does not

interpret the Portal Act, it is not persuasive.

4la

Plaintiffs note that the Construction Related

Requirements (CRR) contain express provisions

requiring them to take the Turner-Austin buses from

the parking lot to the security gate, and from the

security gate to the Project’s job site. Plaintiffs contend

that because they had no other means of accessing the

job site, their transportation time is compensable as an

indispensable activity of their job. However, assuming

that the transportation was mandatory does not mean

that it was a principal activity, nor that it was

compensable. It appears that the transportation was

required by MIA and Turner-Austin for safety and

security reasons, and was not necessarily for

Defendant’s benefit. Finally, none of the provisions of

the CRR state that the transportation time is

compensable. Accordingly, the transportation time does

not fall within 29 U.S.C. §254(b).

The undersigned notes that the parties have provided

as supplementary authority Orders from other judges

of this Court which have considered very similar issues

to those raised here, and which involved various

subcontractors working at MIA.'° These decisions

reflect a split among the District Judges regarding

whether summary judgment is appropriate with

respect to travel time to the job site within MIA. The

undersigned notes that all of these decisions were

rendered prior to the decision of the Supreme Court in

Alvarez, and that every case must be determined on

the facts presented in the summary judgment papers

and the adequacy of the record. Based upon the

decision of the Supreme Court in Alvarez, and the

record in this case, however, the undersigned finds

persuasive and adopts the analysis presented in the

opinion of Judge Jordan in Castillo v. Cuven Corp.

42a

In conclusion, the plain language of the Portal Act, 29

U.S.C. §254 excludes from compensation Plaintiffs’

travel time to and from their job site. The travel in this

case was not part of Plaintiffs’ principal activities

because no work was performed until Plaintiffs arrived

at the job site and no work was performed after

Plaintiffs left the job site. Therefore, Plaintiffs’ motion

for partial summary judgment is denied, and Defendant

is granted summary judgment with respect to the

noncompensability of Plaintiffs’ travel time under the

FLSA.

C. Defendant Is Entitled To Summary Judgment on the

Overtime Rate Issue

Defendant is entitled to summary judgment on the

overtime rate issue as the alleged injuries have already

been remedied and there is not reasonable likelihood of

recurrence.

Defendant correctly contends that Plaintiffs’ overtime

rate claim is moot because the claimed injuries have

been remedied either before or after the filing of the

lawsuit. See Cameron-Grant v. Maxim Healthcare

Services, Inc., 347 F.3d 1240, 1244 (11 Cir. 2043)

(settlement of a plaintiffs claim moots an action);

Mackenzie v. Kindred Hospitals East, L.L.C., 276

F.Supp.2d 1211, 1216 (M.D. Fla. 2003) (a Rule 68 offer of

judgment is an acceptable method of resolving a cased

brought pursuant to the FLSA). Moreover, there is no

reasonable likelihood of recurrence because it is

undisputed that none of Plaintiffs are still employed by

Defendant. The record evidence supports Defendant's

contention that it has tendered to Plaintiffs all sums

43a

due to them because of Defendant’s miscalculation of

the formula used to calculate Plaintiffs’ overtime

payments, and it also has served Offers of Judgment in

excess of the maximum amount recoverable under

those claims.

The record indicates, and Plaintiffs do not controvert

that: 1) Defendant has paid Plaintiff Machado the

shortfall due to the overtime rate miscalculation; 2)

Defendant has also sent to Plaintiffs’ counsel the checks

for the shortfall due to the overtime rate miscalculation

for the remaining Plaintiffs in the case; and 3) during

the pendency of this case, Defendant served Offers of

Judgment offering principal sums in excess of twice

each Plaintiffs’ overtime shortfall, together with

interest and any attorney’s fees and costs in order to

compensate them for any conceivable loss that they

may have incurred.

Plaintiffs provide three objections to the entry of

summary judgment for Defendant on this issue.

Plaintiffs initially contend that should this Court

determine that the claimed transport time is

compensable under the FLSA, the amount of overtime

owed to Plaintiffs would have to be adjusted, and that

Defendant has not mentioned whether the payments

offered were only for hours actually worked or included

the requested travel time. Plaintiffs next assert that

the value of the restitution to them from Defendant is

too speculative absent this Court’s determination of

whether travel time is compensable. Finally, Plaintiffs

contend that Defendant has set forth no specific proof

as to the amounts it purportedly paid each Plaintiff for

the deficient overtime payments and has also not set

forth how it calculated those amounts.

44a

The undersigned finds that Plaintiffs’ objections are

meritless. Initially, as the undersigned has granted

summary judgment to Defendant on the travel time

issue, the amount of overtime owed to Plaintiffs does

not have to be adjusted, and the value of the restitution

to Plaintiffs from Defendant is fixed. Moreover,

Plaintiffs have misread the evidence submitted by

Defendant. Defendant has provided an affidavit which

sets forth the amounts of the payments made in

resolution of the overtime rate claim and the method by

which the amount was calculated; and which clearly

states that the offered payments were for hours worked

and that travel time was not included (Affidavit of

Jeffery Arnold, Ex. B to DE # 56, at 4-7). Plaintiff has

not controverted these calculations.

Therefore, for the foregoing reasons, it is hereby

ORDERED AND ADJUDGED that Defendant’s

Motion for Summary Judgment (DE # 56), is

GRANTED, Defendant’s Motion To Dismiss (DE # 55),

is DEEMED MOOT and that Plaintiffs’ Motion for

Partial Summary Judgment As To Liability (DE # 86),

is DENIED. DONE AND ORDERED at Miami

Florida this 28th, day of March 2006.

ANDREA M. SIMONTON

UNITED STATES MAGISTRATE JUDGE

Footnotes

' In addition, Carlos Cruz, Michael Machado, Carlos

Alfonso Dinarte, Mario Orellana, Hector Diaz, Anibal

Campusano, Roldan Torres, Sergio Sanchez, Omar

Aguilar and Julio J. Alvarez have all been permitted to

45a

opt-in and have been joined as party plaintiffs (DE ##

23, 24, 48, 90, 96). For purposes of this Order, there is

no material distinction between any of the Baker

employees in this case with respect to their job duties

and the compensability under the FLSA of their travel

time on buses.

“This Order grants Defendant’s motion for summary

judgment, which includes summary judgment on

Plaintiffs’ claims regarding the overtime rate issue.

Therefore, the undersigned will neither summarize nor

discuss Defendant’s motion to dismiss Plaintiffs’ claims

regarding the overtime rate issue (DE # 55).

*%While Defendant asked that Plaintiffs’ motion for

partial summary judgment be denied as untimely (DE #

92 at 1-2), this Court granted Plaintiffs’ motion to file

their motion for partial summary judgment out of time

(DE # 90).

‘The undersigned rejects Defendant’s argument that

Plaintiffs may not submit in support of their motion for

partial summary judgment five depositions taken in a

similar case. Sworn deposition testimony may be used

in connection with a summary judgment motion

regardless of whether the testimony was taken in a

separate proceeding as long as_ the _ proffered

depositions were made on personal knowledge and set

forth facts that would be admissible in evidence at trial.

See Stinnett v. Lron Works Gym/Executive Health Spa,

301 F.3d 610, 613 (7th Cir. 2002); Gulf USA Corp. v.

Federal Ins. Co., 259 F.3d 1049,1056 (9th Cir. 2001); ef.

Bozeman v. Grum, 422 F.3d 1265,1268 fn. 1 (Lith Cir.

2003) (sworn statements given before court reporters

are at least as reliable as signed affidavits and are

46a

properly considered on summary judgment); In re

Beiswenger Enterprises Corp. v. Carietta, 46

F.Supp.2d 1297,1299 (M.D. Fla. 1999) (in ruling on

summary judgment motion, district court relied on

deposition testimony taken in a state court action

involving the same parties and subject matter).

*Plaintiff Cabrera does not controvert Defendant’s

assertions.

‘For purposes of this Order, there is no material

distinction between the use of Turner-Austin buses and

Defendant’s vans. Therefore, a reference to either is

deemed to include both.

‘The undersigned rejects Plaintiffs’ argument that

Defendant has admitted that the bus ride was an

indispensable part of Plaintiffs’ jobs (DE # 86 at 9). In

support of their argument, Plaintiffs rely on the

deposition testimony of Defendant’s former employee

Alan Niffin that it was indispensable for Defendant’s

employees to ride an authorized vehicle to get to the

job site (Deposition of Alan Niffin, DE # 88 at 7).

Initially, the questions of whether the bus ride was an

indispensable part of Plaintiffs’ jobs is a_ legal

conclusion, and the record does not indicate that Niffin

is qualified to opine. Secondly, it is undisputed that

Niffin did not work for Defendant at the time of the

deposition, so that his testimony did not bind Defendant

(Deposition of Alan Niffin, DE # 83 at 3). Next, Niffin’s

answer was a response to a series of highly leading

questions and there is no value to Niffin’s answer. See

Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 725

(5th Cir.1961 ).

47a

*This decision of the former Fifth Circuit is binding on

this Court. See Bonner v. City of Prichard, Ala., 661

F.2d 1206,1207 (11 Cir.1981) (en banc).

The Court also found that the time spent by meat

processing plant employees walking between locker

rooms and production area after donning special safety

gear in the locker room was not excluded from the

FLSA by the Portal Act because the workday began

when the employees donned the protective clothing.

Id. at 524.

“See Soto v. Prestress Concrete, Inc., 02-23285-CIV-

LENARD (DE # 111, filed 9129104, denying Plaintiffs’

motion for partial summary judgment and Defendant's

counter-motion for summary judgment) (DE # 91);

Martinez v. Cuesta Construction Corp. alkla Dalecom

Construction, 02-23321-CIV-HUCK/TURNOFF (DE # fig,

filed 10118104, denying Plaintiffs’ motion for partial

summary judgment and Defendant's counter-motion for

summary judgment) (DE # 98); Lopez v. Prestress

Concrete, Inc., 04-20021-CIV-SEITZ (DE # 62, filed

1119105, denying Plaintiffs’ motion for partial summary

judgment and Defendant’s motion for summary

judgment) (DE # 99); Medina v. 3C Construction Corp.,

02-23090-CIV-LENARD (DE # 788, filed 11121105,

denying Plaintiffs’ motions for partial summary

judgment, and granting in part and denying in part

Defendants’ motions for summary judgment) (DE # 104)

and Castillo v. Cuven Corp., 04-20013-CIV-JORDAN, (DE

# 98, filed 9121105, denying Plaintiffs’ motion for partial

summary judgment, and granting Defendant’s motion for

summary judgment) (vacated for lack of jurisdiction,

due to defendant's Suggestion of Bankruptcy, by DE #

101, filed 1215105) (DE # 104).

48a

Filed: 7/27/07

No. 06-12515

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

PERCY BONILLA, MIGUEL HERNANDEZ,

CARLOS CRUZ, MICHAEL MACHADO, JULIO J.

ALVAREZ, GERMAN SANDOVAL, CARLOS

CASTRO, EDGARDO AVILA, JOSE A. CABRERA,

PORFIRIO VARELA, ERMIN TALAVERA,

Plaintiffs-Appellants,

versus

BAKER CONCRETE CONSTRUCTION, INC.,

Defendant-Appellee.

ON PETITION(S) FOR REHEARING AND

PETITION(S.) FOR REHEARTNG EN BANC

Before: Black, Barkett and Kravitch, Circuit Judges

The Petitionis} for Rehearing are DENIED and no

Judge in regular active service on the Court having

requested that the Court be polled on rehearing en

bane (Rule 35, Federal Rules of Appellate Procedure),

the Petition(s) for Rehearing En Bane are DENIED,

ENTERED FOR THE COURT:

/s/Phyllis Kravitch

49a

UNITED STATES CIRCUIT JUDGE

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