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J.N. MOSER TRUCKING, INC. v. U.S. DEPT. OF LABOR

February 27, 2004.

J.N. MOSER TRUCKING, INC., etc., et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF LABOR, et al., Defendants



The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM OPINION AND ORDER

J.N. Moser Trucking, Inc. and Donald and Kristy Schleining (collectively "Moser")*fn1 sue under the Administrative Procedure Act ("APA," 5 U.S.C. § 701-706) and the Declaratory Judgment Act (28 U.S.C. § 2201) to challenge the finding of the Department of Labor ("Department") that Moser violated the McNamara-O'Hara Service Contract Act of 1965 ("Service Contract Act" or "Act," 41 U.S.C. § 351-358).*fn2 Department had determined on appeal after an administrative hearing that Moser violated the Act by failing to pay its drivers for "bobtail time": the time it took drivers to transport empty tractors*fn3 between Moser's terminal and various postal facilities at the beginning and end of the drivers' Page 2 shifts. Moser asks this Court to set aside Department's determination as clearly erroneous and not in accordance with the law.

Both sides have moved for summary judgment under Fed.R.Civ.P. ("Rule") 56 or, in the alternative, for judgment under Rule 52.*fn4 After reviewing the parties' submissions and the administrative record, this Court grants Moser's motion for summary judgment and denies Department's motion.

  Summary Judgment Considerations

  Although both sides have filed this District Court's LR 56.1 statements and responses, Department's response is wholly deficient. It failed to include any references to specific supporting material, and in some instances it simply responded that certain asserted facts are "irrelevant" or that it lacked "sufficient knowledge or information to form a belief as to the truth of the allegations asserted." Those responses are entirely unacceptable and do not comport either with the express language of LR 56.1(b)(3) or with its intended purpose. As Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (citations and internal quotation marks omitted) makes plain: Page 3

 
A district court in not required to wade through improper denials and legal argument in search of a genuinely disputed issue of fact. And a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material. In short, judges are not like pigs, hunting for truffles buried in briefs.
  It is true that Department filed its own LR 56.1(a)(3) statement that identified portions of the record to support its factual assertions, but that fulfilled only half of its responsibility under LR 56.1. Because Department's response is so deficient, this Court would have the power to strike its LR 56.1(b)(3) response in its entirety and accept Moser's statements of fact as true — a ruling that would effectively resolve Moser's motion for summary judgment in its favor (Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527-28 (7th Cir. 2000)). That drastic step is unnecessary, however, for this Court determines that Moser prevails on the merits in any event.

  Background*fn5

  Moser's only business is hauling mail for the United States Postal Service ("Service"). Moser's Illinois terminal*fn6 is Page 4 located in Montgomery and services postal facilities throughout the Chicagoland area. Kriaty (the daughter of now-retired company founder John Moser) and Don (Kristy's husband) manage Moser's Illinois operation. Moser employs approximately 140 workers, most of whom live within six miles of the Montgomery terminal.

  From September 1993 to March 1994 Gerald Becker ("Becker"), an investigator with Department's Wage and Hour Division, conducted an audit and investigation to determine whether Moser had complied with all the provisions of the Service Contract Act. As a result of Becker's investigation, Department filed an administrative complaint on March 28, 1995 alleging that Moser committed numerous violations of the Act between 1992 and 1993, including a charge that Moser should have paid its drivers for bobtail time. Next the parties conducted discovery and, before submitting the case to an ALJ for a hearing and determination, settled all contested issues except whether the drivers should have been compensated for bobtail time and if so, whether Moser should be barred from bidding on government contracts as provided by Section 354(a)(R. 1270-75). In a stipulation between the parties, Moser admitted that it did not pay its drivers for bobtail time and that the unpaid time amounted to $900,584 including pre- and post-trip inspections (R. 581-90, 1270-75; ALJ Order 7-8; ARB Order 3). Page 5

  To challenge Department's contention that bobtail time was compensable under the postal contracts, Moser sought to demonstrate at the administrative hearing that drivers were not required to pick up their tractors at the Montgomery terminal. Instead they were also given the option of traveling directly from their homes to the postal facilities where they would begin their routes. Moser claims that bobtailing was actually more expensive for Moser than leaving the tractors parked at the postal facilities at the end of each shift would be, but it asserts that it permitted the practice as a perk for its workers, seeing that most of them lived near the Montgomery facility and did not want to incur the wear and tear on their own personal vehicles (some of the postal facilities were over 40 miles away). According to Moser, some drivers did not go to the Montgomery facility at the beginning of their normal work day — rather they took tractors home with them and drove directly to the postal facilities at the beginning of their shifts, then back home again after their shifts ended.

  Department sought to prove that Moser's drivers never had any such option. In its view each driver had to pick up a tractor at the Montgomery terminal every morning, making the bobtail time an integral and indispensable part of the drivers' duties under the postal contracts. So, according to Department, those drivers should have been compensated for that time. Page 6 Department contended (1) that Moser did not have any place to keep its tractors near moat of the postal facilities, so the drivers could not have started there, and (2) that even if they could have done so, Moser never told its employees of that option. As for driving tractors to and from home, Department claims that few workers were ever permitted to do so on a regular basis and that in any event that practice does not bear on whether bobtail time should be Compensable.

  During the formal hearing before the ALJ, which lasted from March 16 through 19, 1999, Department called as witnesses several people who drove for Moser during 1992-93 in addition to the dispatcher for Moger at that time and Department's investigator Becker, while Moser called several drivers as well as Kristy and Donald. Three of Moser's employees — one of whom was called by Department — testified that Moser did offer them the choice of driving directly to the postal facility rather than picking up a tractor at the Moser terminal: Dale Augustine ("Augustine"), Tr. 48; George Nilo ("Nilo"), Tr. 798 and Robert Allgood, Tr. 821. Several witnesses for both sides also testified that some drivers could take their assigned tractor home with them on a regular basis: Augustine, Tr. 41-47, 52-58; Angel Hernandez, Tr. 186; Kristy, Tr. 577-78, 583, 600; Donald, Tr. 646-47; Nilo, Tr. 804, 820. But some drivers testified that they were not given either option: Junior Smith, Tr. 145; Patrick Hamilton ("Hamilton"), Page 7 Tr. 330 and Jerry Nelson ("Nelson"), Tr. 352.

  Donald testified that he spoke with his drivers and that they preferred to pick up tractors at the Moser terminal rather than drive directly to the postal facilities in their personal vehicles (Tr. 650-51). He also testified that parking was available at some of the postal facilities (the Bulk Mail Center, Fox Valley and St. Charles) but not at the Palatine or Carol Stream facilities (Tr. 650). But in that respect Donald testified both that he could have obtained parking and that it would have been less expensive for Moser to keep the tractors near the postal facilities than to permit the drivers to bobtail every day (Tr. 653-66). Kriaty also testified that parking was available at several postal facilities (she identified South Suburban, Rock Island and Fox Valley) but not at the Palatine and Carol Stream facilities (Tr. 578-79).

  On December l, 2000 the ALJ issued his order, concluding that the evidence did not support Department's contention that Moser directed its drivers to bobtail or that the practice was for Moser's convenience (ALJ Order 9). On that score the ALJ stated (id.):
Rather than requiring its drivers to prick up a truck at a particular location, Moser offered its drivers the option of picking up a truck at its terminal or driving their own vehicles to or near the first postal facility where a truck could be parked waiting for them.
  In reaching that factual conclusion the ALJ specifically Page 8 relied on the testimony from Donald, Augustine and Nilo and expressly discounted the testimony from Hamilton and Nelson because they were seasonal employees who were less familiar with Moser's business practice (id. n.5) and because Nelson appeared biased against Moser — he testified that he thought the Schleinings are "liars and thieves" (Nelson, Tr. 359; ALJ Order 9 11 n.5). ALJ Roketenetz also found that "a significant number of Moser drivers were allowed to take their assigned trucks home and did so on a regular basis," although the exact number of drivers who did so and how often could not be determined from the record (ALJ Order 4). Because he found that the drivers had choices other than bobtailing, the ALJ determined that "it can only be concluded that the drivers were acting for their own convenience and not under Moser's direction," so that bobtailing was not compensable (id. 9).*fn7

  Department sought review of the ALJ's decision, and on May 30, 2003 the ARB reversed in a final decision and order (ARB Page 9 Order 13).*fn8 That decision rejected, as assertedly unsupported by a preponderance of the evidence, the ALJ's finding that drivers had other options beside driving directly to the Montgomery terminal and then on to the postal facilities (id. 5). In part the ARB found the Schleinings' testimony "very unreliable" because Donald and Kristy made "materially inconsistent" statements about the postal facilities where parking was available (id. 4). It also relied on the testimony of the couple of drivers who claimed they were never told about driving directly to the postal facilities where a tractor would be waiting for them (id.), and it rejected as "mostly equivocal" the testimony of the several witnesses who testified otherwise (id. 5).

  As to whether some drivers brought their tractors home and drove directly to the postal facilities, the ARB stated that the record was unclear that such a practice was significant during 1992-93 and also decided that the practice was irrelevant anyway because it did not constitute "bobtailing" (ARB Order 10 n.39). In sum, the ARB concluded that because bobtailing was "the only way most of the drivers could begin to carry out their daily mail hauling duties in 1992-93" (id. 10, emphasis in original), it was a compensable activity under the Fair Labor Standards Act Page 10 ("FLSA"). ...


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