Opposition Brief — Ackerman v. Coca-Cola Enterprises, Inc.

No. 99-864 MBE Ob AE LEI

In The

Supreme Court of the United States

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RICHARD ACKERMAN, TIMOTHY BOOKER, ERICH

BUTLER, MICHAEL DICKSON, EDWARD DONAHOE,

MICHAEL FABIAN, STEVEN JONES, RICHARD LOOS,

MARK MARES, ROBERT MOON, JAMES MUELLER,

DANA ROE, KIM SMITH, PAUL SPIELMAN,

ALAN TAMONDONG, and BRAD VELLIQUETTE,

Petitioners,

COCA-COLA ENTERPRISES INC., a Delaware

corporation in good standing and licensed

to do business in Colorado,

Respondent.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

*

RESPONDENT’S BRIEF IN OPPOSITION

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RONALD G. INGHAM WALTER V. SIEBERT

Counsel of Record SHERMAN & HowarpD

Keity L. Weston 633 Seventeenth Street

Mitter & Martin LLP Suite 3000

Suite 1000, Volunteer Denver, CO 80202

Building (303) 297-2900

832 Georgia Avenue

Chattanooga, TN 37402-2289

(423) 756-6600

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILARIE COPY;

QUESTION PRESENTED FOR REVIEW

Respondent disagrees with the Questions Presented for

Review by the Petitioners. Respondent presents the proper

Question for Review, based upon Petitioners’ petition for

a writ of certiorari, as follows:

Whether the Tenth Circuit Court of Appeals cor-

rectly determined that certain duties performed

by Petitioners were performed incidental to and

in conjunction with their own sales, for pur-

poses of the outside salesman exemption to the

Fair Labor Standards Act. See 29 U.S.C.

§ 213(a)(1); 29 C.F.R. § 541.5; 29 C.F.R. § 541.500,

et seq.

ii

LIST OF PARTIES TO THE PROCEEDING

Respondent has no parent companies. Pursuant to

Supreme Court Rule 29.6, Respondent states that the

following are the non-wholly owned subsidiaries and

cooperatives of Respondent:

Coca-Cola Bottling Company of Johnson City

RE Services Holding Company, L.P.

Coca-Cola Enterprises (France)

Immo Dynamica (Belgium)

Immo Willems (Belgium)

Western Container Corporation

Southwest Canners, Inc.

Southeastern Container, Inc.

Gulf States Canners, Inc.

lii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

LIST OF PARTIES TO THE PROCEEDING ......... ii

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SE GPE PA a EEE io sce k ok cn cccccensduensas Vv

STATEMENT OF JURISDICTION.................0. 1

DUM a memes GP TEE CAGE. ns ccc ccccscacees 1

ERRORS IN PETITIONERS’ STATEMENT OF THE

| EER Rented yee Pee a OT ne een 2

FACTUAL ERRORS IN PETITIONERS’ ARGUMENT... 4

SUMMARY OF THE ARGUMENT .................

ARGUMENT: REASONS FOR DENYING THE

CRE een Gry rene eee tie Beyer he Set rhe eR 5

A. Petitioners do not present a sufficient ground

for the United States Supreme Court to grant a

writ of certiorari; Petitioners assert no more

than an alleged misapplication of a properly

SUPE SU Oe Re ook ices seek Sed neds 5

B. The Court of Appeals properly held that Peti-

tioners, who admit that they were engaged for

the purpose of making sales and that their

primary duty was sales, performed merchan-

dising duties incidental to and in conjunction

with their primary duty .......6 000.60 ccunces 6

C. The Court of Appeals’ interpretation of the

clear and unambiguous regulations and guid-

ance of the Secretary of Labor was correct.

Petitioners cite no precedent nor offer an

acceptable analysis for finding the Court of

Appeals’ legal holdings in error ............. 10

iv

TABLE OF CONTENTS - Continued

Page

D. Respondent met its burden of proof of demon-

strating that Petitioners were exempt from the

overtime requirements of the Fair Labor Stan-

I FI Ss chee ha te haan VaR PERE eS 12

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TABLE OF AUTHORITIES

Page

CAsEs:

Ackerman v. Coca-Cola Enterprises Inc., 179 F.3d

Ree CHO GE. SES 5ii se cw woh wah ees ha 1

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc, G67 WS. G37 (OGG. « ........ccsn. ke. 6

Hodgson v. Krispy Kreme Doughnut Co., 346 F. Supp.

ROS UU E Wil BOWEN Senate nea iks wads Caeeees 8

Reich v. Parker Fire Protection Dist., 992 F.2d 1023

eee Se SO iS hae awk eee: 7

Resnick v. M & R Baking Co., 1970 WL 2793 (E.D.

Ss iy: SN IE So nc anac en tec ete ee 8

Skidmore v. Swift & Co., 323 U.S. 134 (1944) .......... 7

Spradling v. City of Tulsa, 95 F.3d 1492 (10th Cir.

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STATEMENT OF JURISDICTION

The order and opinion of the Tenth Circuit Court of

Appeals overruling the United States District Court for

the District of Colorado was entered on June 10, 1999.

Ackerman v. Coca-Cola Enterprises Inc., 179 F.3d 1260 (10th

Cir. 1999). Petitioners originally filed their petition for a

writ of certiorari on September 8, 1999, although it was

rejected as procedurally deficient. Petitioners refiled their

petition and it was docketed on November 22, 1999.

Respondent acknowledges that if the case below oth-

erwise presented a proper case for certiorari, jurisdiction

would be proper under 28 U.S.C. §1254(1); but Respon-

dent denies that Petitioner presents a proper case for

certiorari.

é -

STATEMENT OF THE CASE

Petitioners were employees of Respondent, and

admit that they were primarily engaged for the purpose

of making sales. The only question decided by the Court

of Appeals was whether Petitioners were performing

work “incidental to and in conjunction” with their sales,

within the meaning of the laws defining the “outside

salesman” exemption to the minimum wage and overtime

provisions of the Fair Labor Standards Act (“FLSA”),

when they performed “merchandising” duties. The Court

of Appeals held that they were, and that Petitioners were

therefore exempt. Petitioners do not directly challenge

any of the factual assertions made by the Court of

Appeals. For purposes of consideration of the petition for

a writ of certiorari, Respondent will likewise accept the

factual and procedural assertions made by the Court of

Appeals.

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ERRORS IN PETITIONERS’

STATEMENT OF THE CASE

Respondent agrees that the majority of the material

facts in this case are undisputed: primarily, that “Peti-

tioners were employed by the Respondent as salesmen.

They were hired to perform sales activities.” (Petitioners’

Brief p. 10). The parties agree that Petitioners were

employed for the purpose of selling Respondent’s prod-

ucts and that they were regularly and customarily

engaged in that activity away from Respondent’s offices.

(Petitioners’ Appendix A, Court of Appeals Opinion p. 8).

Petitioners’ statement that “Respondent stipulated at

trial that petitioners engaged in non-exempt work in

excess of twenty percent (20%) of petitioners’ work

week” is incorrect. (Petitioners’ Brief p. 10). This state-

ment does not reflect the actual stipulation entered by the

parties. It was never stipulated that the work in question

was non-exempt: the stipulation was that in certain work

weeks the Petitioners would spend in excess of 20% of the

time spent by non-exempt merchandisers performing

merchandising tasks. (Petitioners’ Appendix B, District

Court Opinion p. 6). In other words, that in some weeks

they performed work that, when performed by other

employees, was non-exempt. The purpose of the stipula-

tion was to set forth the work in question and thereby

focus the inquiry on whether these tasks, when performed

by Petitioners, were or were not exempt.

Petitioners’ statement that “it was undisputed at trial

that the Petitioners spent up to sixty-five percent (65%) of

their time performing non-exempt work” is similarly

incorrect. (Petitioners’ Brief p. 10). Again, the issue is

whether the work in question is or is not exempt, as being

incidental to and in conjunction with sales when per-

formed by Petitioners. At trial, the three Petitioners who

testified as representative of all the Petitioners each testi-

fied that their direct sales activities comprised the major-

ity of their work time. (See Petitioners’ Appendix B,

District Court Opinion p. 9, fn. 5). The remaining Peti-

tioners had asserted that they spent varying amounts of

time in merchandising versus direct sales activities, but

only one of them asserted he could spend as much as 65%

of the time merchandising. (Petitioners’ Appendix B, Dis-

trict Court Opinion p. 9, fn. 5). The Court should thus

reject Petitioners’ oft repeated - and untrue - factual

assertion that Petitioners spent “up to 65% percent” of

their time in “non-exempt” work.

Petitioners’ argument that the Court of Appeals’

opinion could allow an employer to require an employee

to perform “non-exempt work” up to ninety-nine percent

of the time and still claim the outside salesman exemp-

tion is senseless. Under the law, a person who is not

“employed for the purpose of” and who is not “custom-

arily and regularly engaged . .. in. . . making sales” will

never be an outside salesman, even if they make an

occasional sale. Petitioners’ overstatement highlights the

weakness of their argument based on the facts of this

case: Petitioners admit that they were regularly and cus-

tomarily engaged in outside sales and that making sales

was in fact their primary purpose, and agree that their

performance of merchandising activities increased sales.

(See Petitioners’ Appendix A, Court of Appeals’ Opinion

pp. 16 to 17; Petitioners’ Appendix B, District Court

Opinion p. 9). What more “plain and unmistakable evi-

dence” that the merchandising duties in question are

incidental to and in conjunction with their sales could

there be?

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FACTUAL ERRORS

IN PETITIONERS’ ARGUMENT

Respondent must address yet another error pre-

sented as “fact” by Petitioners. They repeatedly assert

that the district court found they would spend “over

forty-six hours a week” performing duties which were

also performed by non-exempt employees. (Petitioners’

Brief pp. 13, 15, 16). This is a misstatement: although the

district court found that Petitioners’ hours ranged from

“an average low of fifty-five hours per week to an aver-

age high of seventy-two hours per week,” (Petitioners’

Appendix B, District Court Opinicn p. 6, fn. 4), there was

no finding that they performed merchandising duties

“over forty-six hours” a week. Rather, the district court’s

actual finding was that they performed such duties any-

where from twelve hours to a potential high of forty-one

hours in a given week, depending. (Petitioners’ Appendix

B, District Court Opinion pp. 9 to 10, fn. 5). In support of

their request for a writ of certiorari, Petitioners simply

keep repeating their erroneous statement of the district

court’s factual findings. Petitioners’ tactics, however,

should not be rewarded.

SUMMARY OF THE ARGUMENT

Petitioners do not present a sufficient ground to

grant a writ of certiorari, because Petitioners assert no

more than an alleged misapplication of a properly stated

rule of law to the facts. The Court of Appeals properly

held that Petitioners, who admit that they were engaged

for the purpose of making sales and that their primary

duty was sales, performed merchandising duties inciden-

tal to and in conjunction with their primary duty and

were therefore exempt as outside salesmen. The Court of

Appeals’ interpretation of the regulations and guidance

of the United States Department of Labor, which is speci-

fically charged with defining the exemption, was well

considered and not inconsistent with any other judicial

ruling. Petitioners were exempt from the overtime

requirements of the FLSA.

oe

v

ARGUMENT: REASONS FOR DENYING THE WRIT

A. Petitioners do not present a sufficient ground

for the United States Supreme Court to grant a

writ of certiorari; Petitioners assert no more

than an alleged misapplication of a properly

stated rule of law.

Petitioners cite no conflict between the decision of

the Tenth Circuit Court of Appeals in this matter and the

decision of another United States court of appeals or a

state court of last resort. Nor do Petitioners cite an impor-

tant question of federal law that has not been, but should

be, settled by this Court, or that has been decided in a

way that conflicts with relevant decisions of this Court:

resolution of the issue of whether merchandising tasks

are incidental to and in conjunction with sales when

performed by an individual who admits that he or she is

primarily employed for the purpose of making sales, and

who admits that performing merchandising tasks furthers

those goals, is not a question which should be settled by

the United States Supreme Court, especially in the

absence of any conflict among the United States courts of

appeals on the issue.

Petitioners do not challenge the validity of the regu-

lations of the Secretary of Labor. Nor do they challenge

the fact that the Court of Appeals relied on the regula-

tions and guidance of the Secretary of Labor. Rather, they

assert that the Court of Appeals’ application of the regu-

lations and guidance created an unsatisfactory result.

However, alleging a misapplication of a properly stated

rule of law is rarely a sufficient ground for the granting

of a writ of certiorari. Supreme Court Rule 10. In the

present case, there are no compelling reasons for the

Court to grant a writ of certiorari.

B. The Court of Appeals properly held that Peti-

tioners, who admit that they were engaged for

the purpose of making sales and that their pri-

mary duty was sales, performed merchandising

duties incidental to and in conjunction with

their primary duty.

The Secretary of Labor is specifically charged with

the duty to “define and delimit” the term “outside sales-

man” in the FLSA. 29 U.S.C. §213(a)(1). The regulations

promulgated by the Secretary of Labor are therefore to be

given a high level of deference by the courts. Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984); Reich v. Parker Fire Protection Dist., 992

F.2d 1023, 1026 (10th Cir. 1993). They “are entitled to

judicial deference and are the primary source of guidance

for determining the scope of exemptions to the FLSA.”

Spradling v. City of Tulsa, 95 F.3d 1492, 1495 (10th Cir.

1996). Similarly, the Secretary of Labor’s interpretive

guidelines interpret and explain the regulations. Because

they are well considered and the reasoning is sound and

consistent, the interpretive guidelines are persuasive on

issues regarding the FLSA. Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944); Parker Fire Protection Dist., 992 F.2d at

1026. Therefore, the Court of Appeals was correct in

deferring to the Secretary of Labor’s regulations and

guidance on the outside salesman exemption.

The only issue decided by the Court of Appeals was

whether “merchandising” tasks, when performed by Peti-

tioners, were “incidental to and in conjunction with”

their sales of Coca-Cola products. (Petitioners’ Appendix

A, Court of Appeals’ Opinion p. 10). If they were, then

the 20% limitation on “non-exempt” work which is part

of the criteria for the outside salesman exemption to the

minimum wage and overtime requirements of the FLSA

was not exceeded, and Petitioners were exempt. If they

were not, then the limitation was exceeded and Peti-

tioners were not exempt outside salesmen. 29 C.FR.

§541.5. The Court of Appeals concluded that, based upon

the implementing regulations and interpretive guidance

of the Secretary of Labor, Petitioners performed merchan-

dising duties incidental to and 1 conjunction with their

own outside sales, and therefore satisfied the outside

salesman exemption.

Petitioners cannot point to a single instance where

the Court of Appeals diverged from or failed to apply the

plain meaning of the regulations in rendering its opinion.

Petitioners do not cite a single authority which supports

their position that the Court of Appeals’ opinion is incon-

sistent with the intent of the FLSA and the implementing

regulations. Petitioners do not challenge the validity of

the regulations themselves. Rather, they essentially argue

that the regulations, when applied by the Court of

Appeals to their case, created an unsatisfactory result.

Petitioners argue that the Court of Appeals “focused

exclusively on whether the ‘salesman’ executed the sale

and ignored his overall job responsibilities.” (Petitioners’

Brief p. 14). They argue that its perceived “emphasis on

taking the order” is not proper. (Petitioners’ Brief p. 15).

Quite the contrary: the Court of Appeals focused on the

undisputed fact that Petitioners were primarily employed

for the purpose of making sales. In determining whether

merchandising duties were incidental to and in conjunc-

tion with this purpose, the Court of Appeals properly

looked to the regulations of the Secretary of Labor, which

specifically contemplate that such duties, when per-

formed by the individual who actually makes the sale, are

exempt activities. 29 C.F.R. §541.504, §541.505. The Court

of Appeals’ determination was consistent with prior

interpretations of the outside salesman exemption, which

have noted that time spent in a particular task does not

determine whether that task is incidental to and in con-

junction with sales for purposes of the exemption. See,

e.g., Resnick v. M & R Baking Co., 1970 WL 2793, *1 (E.D.

N.Y., Aug. 6, 1970) (“inquiry into the quantum of non-

sales activity [cannot] help where, as here, it is incidental

to and in conjunction with the plaintiff's own outside

sales and solicitations.”) (opinion included at “Appen-

dix”).

Petitioners argue that, because merchandising duties

are non-exempt when performed by merchandisers but

are exempt when performed by Petitioners, the result is

“anomalous.” (Petitioners’ Brief p. 15). Yet the regulations

clearly contemplate that “promotional” duties (which are

analogous to “merchandising” in almost all respects) can

be and often are performed by both exempt and non-

exempt employees. Section 541.504 of the regulations is,

in fact, a lengthy discussion which attempts to distin-

guish “promotion work” performed by an individual who

then attempts to or does consummate a sale, from the

same work performed by an individual who does not

himself make a sale. See, e.g., 29 C.F.R. §541.504(a). In the

former case, but not the latter, the work is exempt. See

generally Hodgson v. Krispy Kreme Doughnut Co., 346

F. Supp. 1102 (M.D. N.C. 1972) (acknowledging that

“merchandising” duties were integral to customer satis-

faction and goodwill and, consequently, to increasing

plaintiffs’ sales). Petitioners’ sole argument for overturn-

ing the decision below — that the result reached by the

Court of Appeals is contrary to the intent of the FLSA

and the Secretary of Labor’s regulations — is defeated by

the plain, unambiguous language of the regulations

themselves, and must be disregarded.

Petitioners desire the Court to accept the dictionary

definition of “incidental,” thereby disregarding the defi-

nition created by the Secretary of Labor in the specific

context of the outside salesman exemption. Making sales

was Petitioners’ primary duty: they traveled to more than

10

25 to 35 stores on a given day, making a sale at each one

and trying to increase the volume of Coca-Cola product

in the store. They testified that the reason they performed

merchandising tasks was for the purpose of enhancing

sales. The Secretary of Labor unequivocally accepts that

such duties, when performed by the person who makes

the sale, are “incidental to and in conjunction with” the

sale. The Court of Appeals’ interpretation of the regula-

tions as applied to the facts of this case were consistent

with the FLSA and the purposes for which it was enacted.

C. The Court of Appeals’ interpretation of the reg-

ulations and guidance of the Secretary of Labor

was correct. Petitioners cite no precedent nor

offer an acceptable analysis for finding the

Court of Appeals’ legal holdings in error.

Petitioners do not argue that the Court of Appeals

applied the wrong facts. They do not argue that the

holding of the Court of Appeals is in conflict with any

prior opinion of that court or any other federal court or

state court of last resort. They do not argue that the

applicable regulations and interpretive guidance of the

Secretary of Labor are arbitrary and capricious, nor did

they do so at the trial or appellate stage of the proceed-

ings. Rather, they challenge the Court of Appeals’ appli-

cation of the Secretary’s rules, arguing that their

application “renders” the regulations arbitrary and capri-

cious. However, Petitioners’ argument rests entirely on

fallacious reasoning.

Their primary objection to the Court of Appeals’

opinion is that, under its reasoning, “Respondent could

11

give each of its employees a sales pad, call them outside

salesmen, and ask them to stop by their local 7-11 on their

way home to pick up an order,” and thus claim these

employees to be exempt. (Petitioners’ Brief 18-19). This

argument is ridiculous. It misinterprets both the analysis

of the Court of Appeals and the effect of its holding. The

essential fact of this case, and of the holding of the Court

of Appeals, is that there is and was absolutely no dispute

that Petitioners were hired for the purpose of making

sales, that their primary duty was sales, and that they

were regularly and customarily employed away from

Respondent’s place of business in making sales. While the

theoretical scenario created by Petitioners clearly pre-

sents a valid question as to whether the fictitious

employees would be “employed for the purpose of

and ... customarily and regularly employed away from

his employer’s place or places of business in . . . making

sales ...,” there was never any such question before the

Court of Appeals in the present case. (Petitioners’ Appen-

dix A, Court of Appeals’ Opinion pp. 8, 10).

The holding of the Court of Appeals began with the

undisputed fact that Petitioners’ primary duty was sales,

and then properly moved on to the only question at issue:

whether merchandising tasks were “incidental to and in

conjunction with” their sales. Far from rendering the

outside salesman exemption “meaningless,” (Petitioners’

Brief p. 16), the Court of Appeals’ interpretation is

decided upon careful consideration of the applicable law;

specifically, the regulations and guidance created by the

Secretary of Labor, at 29 C.FR. §541.5 and 29 C.FR.

§541.500, et seq.

12

Petitioners argue that the outside salesman exemp-

tion was not intended to allow employers to “manipu-

late” the distinction between exempt and non-exempt

employees. However, there was no finding of intent by

either the district court or the Court of Appeals, and to

the extent this alleged factor was not a basis for any

finding in the case below, it is irrelevant. Again, Peti-

tioners attempt to create a theoretical scenario which not

only does not exist, but cannot exist.

The “important federal question” which Petitioners

attempt to create does not exist. Unless an employee

meets the “primary duty” test of the outside salesman

exemption, the other issues encompassed in the defini-

tion of outside salesman never arise. The Court of

Appeals never absolved an employer from proving the

“primary duty” element of the exemption, and it was in

fact a pivotal basis for its decision. The Court of Appeals

applied the plain language of the applicable laws, regula-

tions and guidance, and Petitioners can point to no con-

trary precedent or reason to overrule the application.

Their entire argument is a red herring. As it is the sole

basis for their claim that the Court of Appeals’ applica-

tion of the correct law to the correct facts somehow results

in the regulations being “arbitrary and capricious,” the

argument should not be considered.

D. Respondent met its burden of proof of demon-

strating that Petitioners were exempt from the

overtime requirements of the Fair Labor Stan-

dards Act.

The testimony of the three Petitioners who testified

at trial was stipulated as being representative. Petitioners

13

make the bald assertion that Respondent failed to meet its

burden of proof on the outside salesman exemption.

Their argument is, more precisely, that Respondent “did

not refute by ‘clear and unmistakable evidence,’ the fact

that employees in this suit spent up to 65% of their time

performing non-sales functions for Respondent.” (Peti-

tioners’ Brief p. 20). This is an erroneous statement of the

burden of proof.

All of the elements of the outside salesman exemp-

tion, with the sole exception of the “20% non-exempt

work” element, were undisputed. The regulations state

that duties which are “incidental to and in conjunction

with” sales are non-exempt. There is no requirement that

an employer show that 65% of an outside salesman’s time

is not “non-sales,” but only that the employee in question

does not spend more than 20% of his or her time in non-

exempt duties. The focus is not whether the duties are

“non-sales,” but whether the duties are exempt. Respon-

dent’s burden, therefore, was solely to show that mer-

chandising duties performed by Petitioners were

incidental to and in conjunction with their sales. The

Secretary of Labor finds “merchandising” tasks to be

incidental to and in conjunction with sales when per-

formed by an individual who sells. The Court of Appeals

engaged in a thoughtful and thorough consideration of

those rules, and concluded that Respondent had met its

burden of proof. The Court of Appeals reached the cor-

rect decision.

ad

14

CONCLUSION

Petitioners’ proposition that the result reached

through the application of the correct law to the correct

facts rendered the wrong result is insufficient grounds for

the grant of a writ of certiorari. There is no conflict

between the decision of the Court of Appeals and that of

any other United States court of appeals, any state court

of last resort, or this Court. There is no important ques-

tion of federal law that this Court should decide, and the

petition should be denied.

The Court of Appeals applied the correct law and

facts and reached a decision wholly consistent with and

supported by the Secretary of Labor’s regulations and

guidance. Respondent respectfully requests this Court to

deny Petitioners’ petition for a writ of certiorari, to dismiss

the action, and to award Respondent costs and expenses.

Respectfully submitted,

Mitten & Martin LLP

RONALD G. INGHAM,

Counsel of Record

Ketty L. WEsTON

Suite 1000, Volunteer Building

832 Georgia Avenue

Chattanooga, TN 37402-2289

(423) 756-6600

SHERMAN & HowarpD

Wa tTER V. SIEBERT

633 Seventeenth Street, Suite 3000

Denver, CO 80202

(303) 297-2900

Attorneys for Respondent

Coca-Cola Enterprises Inc.

App. 1

19 Wage & Hour Cas. (BNA) 811, 63 Lab.Cas. P 32,370

(Cite as: 1970 WL 2793 (E.D.N.Y.))

Bernard Resnick, Plaintiff

M & R Baking Company, Inc., Defendant.

No. 60-C-769

United States District Court, E.D. New York

August 6, 1970

DOOLING, DJ.

#1 Plaintiff, who in the period in question, was a

baked goods routeman employed by defendant, sues for

overtime pay under the Fair Labor Standards Act, 29

U.S.C. § 207. Defendant moves for summary judgment on

the stipulated facts and plaintiff's deposition testimony

on the ground that plaintiff was not covered by the Act

because he was, within the meaning of the Act, 29 U.S.C.

§ 213(a)(1), an “employee employed . . . in the capacity of

outside salesman (as such terms are defined and

delimited . . . by regulations of the secretary . . . ).” The

directly relevant regulations of the Secretary appear at 29

C.F.R. §§ 541.5, 541.500, 541.505 (particularly at (b) sev-

enth sentence), and 541.506.

The stipulated facts, deposition of plaintiff and the

exhibits (including the labor contract) make out a very

strong showing that plaintiff, as a driver salesman, came

within the exemptive language of Section 541.505(b):

“Thus, there is little question that a routeman

who provides the only sales contact between the

employer and the customers, who calls on cus-

tomers and takes orders for products which he

delivers from stock in his vehicle or procures

and delivers to the customer on a later trip, and

App. 2

who receives compensation commensurate with

the volume of products sold, is employed for the

purpose of making sales.”

Plaintiff has wholly failed to meet the showing so put

forward. To argue that plaintiff was simply a delivery

man regularly distributing products to established cus-

tomers in fixed contractual or other pre-established

amounts (like the city milkman) is to ignore the entire

background of fact and the manifest care and discrimina-

tion with which the regulations have defined the exempt

and non-exempt classes of driver salesmen. See Section

541.505 particularly subdivisions (b), (f); Wirtz v. Golden

Cream Do-Nut Co., D.C.Colo.1968, 58 LC J 32,098. Over-

whelming here is the interpretative significance of the

entire agreement over the years among employer,

employees and Union that defendant’s routemen are in

the exempt class. Nor can inquiry into the quantum of

non-sales activity help where, as here, it is incidental to

and in conjunction with the plaintiff’s “own outside sales

and solicitations.” See Sections 541.5(b), 541.500(b),

541.505(c) (first and last two sentences), 541.506.

Accordingly it is Ordered that defendant’s motion for

summary judgment is granted and the Clerk is directed to

enter judgment that plaintiff take nothing and that the

action is dismissed on the merits with costs as taxed by

the Clerk.

tO eNOS ine ARSENIO ASA fe ONCE

OO a ee NI Tne Neat se