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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1145

## Text

No. 99-864 MBE Ob AE LEI
In The
Supreme Court of the United States
¢

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.

¢

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit

*
RESPONDENT’S BRIEF IN OPPOSITION
¢
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
EE Hr, SINE so Sas bc Sune wopscdswtskauaee iii
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

ae 6 ree re Pe mre re armen rr rryae ‘4

Vv

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.

WON 4.65. cin pane dan canpeeckn angela ie 7

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supreme Court Sule: 10.5. ds Gidea 6

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.

¢

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?

+

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0426%3A2. Public record. Not legal advice.