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DONOVAN v. RICHLAND SHOE CO.

April 17, 1985

RAYMOND J. DONOVAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR
v.
RICHLAND SHOE COMPANY



The opinion of the court was delivered by: HUYETT

HUYETT, J.

 Presently before me in this Fair Labor Standards Act ("FLSA") case is plaintiff's motion for summary judgment. For the reasons set forth below, this motion will be granted.

 BACKGROUND

 Defendant Richland Shoe Company ("Richland") is a manufacturer of footwear and other leather products. Plaintiff has brought this action seeking an injunction against further violations of the FLSA and for restitution on behalf of seven of Richland's employees. All seven of these employees are mechanics whose duties include repairing and maintaining equipment at Richland's plant. It is admitted that all of these employees work, on average, in excess of forty hours a week.

 Section 7(a)(1) of the FLSA requires employers to pay all employees at least "one and one-half times the regular" pay rate for hours worked over forty in a given workweek. 29 U.S.C. § 207(a)(1). *fn1" This provision, like the FLSA in general, is "remedial and humanitarian in purpose" and must not be interpreted or applied in a "narrow grudging manner." Tennessee Coal Co. v. Muscoda Local 123, 321 U.S. 590, 597, 88 L. Ed. 949, 64 S. Ct. 698 (1944). There is, however, a narrow exception to the general proscriptions of § 7(a)(1). 29 U.S.C. § 207(f). This exception, enacted in response to the Supreme Court's decision in Walling v. A.H. Belo Co., 316 U.S. 624, 86 L. Ed. 1716, 62 S. Ct. 1223 (1942), allows an employer to modify the otherwise applicable overtime provisions of the FLSA. Congress, the Court, and the Secretary have described a number of requirements for such "Belo" plans. They are:

 
1. The employment must be pursuant to a bona fide contract or agreement.
 
2. The duties of the employees must necessitate workweeks which fluctuate both above and below forty hours per week.
 
3. The contract or agreement must specify the regular rate of pay, which is not less than the minimum wage, and compensation at not less than time and one-half that regular rate for all hours worked over the maximum workweek.
 
4. The contract or agreement must also provide a weekly guaranty of pay for not more than sixty hours per week.

 29 U.S.C. § 207(f); see 29 C.F.R. § 778.405-778.413; Donovan v. Brown Equip. & Serv. Tools, 666 F.2d 148, 153 (5th Cir. 1982). The employer has the burden of proving that all elements are present in order to come within the exception. Brown Equip., 666 F.2d at 153. Belo plans are to be narrowly construed against the employer asserting them, Id., and must be considered in light of their purposes. "These plans secure employees whose work necessitates wide and unpredictable fluctuations in hours against 'short' paychecks in weeks when they work very few hours. A fixed wage gives such employees 'the security of a regular weekly income' so that they can operate on a stable budget." Id. at 153. (quoting Walling v. A.H. Belo, 316 U.S. at 635). Obviously, Belo plans are not allowable merely because they allow an employer to work employees forty hours a week without paying them time and one-half.

 In the present motion, plaintiff asserts that Richland's putative Belo plan fails to satisfy any of the four requirements listed above. Rule 56 of the Federal Rules of Civil Procedure provides that a trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Inferences to be drawn from underlying facts contained in the evidentiary sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion and doubts as to the existence of a genuine issue of material fact are to be resolved against the moving party. Hollinger v. Wagner Mining and Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). In the present case, I believe that plaintiff has met its burden of showing that there exists no genuine issue of fact regarding the validity of the defendant's Belo plan. I will therefore grant summary judgment in favor of plaintiff.

 DISCUSSION

 The employees in question are all mechanics. They work on a forty-eight hour "base week." That is, they were paid a weekly salary for for all hours worked up to forty-eight hours per week. Marburger Deposition at 7; Isenberg deposition at 30. Above forty-eight hours per week, the mechanics were paid at a "half time" rate. Marburger deposition at 30. Above forty-eight hours per week, the mechanics were paid at a "half time" rate. Marburger deposition at 9, 25; Isenberg deposition at 32. There can be no question that the hours worked by these employees fluctuated widely from week to week. The Act and the regulations require more than mere fluctuation, however. They require that the hours fluctuate both above and below ...


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