                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2201
                        ___________________________

      Glenn Williams, on behalf of himself and all others similarly situated

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                    Central Transport International, Inc., et al.

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: January 12, 2016
                               Filed: July 28, 2016
                                 ____________

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       The Fair Labor Standards Act (FLSA) provides that employers must pay
non-exempt employees at “one and one-half times the regular rate” for time worked
in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The FLSA exempts “any
employee with respect to whom the Secretary of Transportation has power to
establish qualifications and maximum hours of service” under the Motor Carrier Act
(MCA). 29 U.S.C. § 213(b)(1) (hereafter, “the MCA Exemption”). Central
Transport, LLC, ships freight throughout the United States and is a “motor carrier”
subject to the Secretary’s MCA jurisdiction. See 49 U.S.C. §§ 13102(14), 13501.

       Glenn Williams brought this action alleging that Central Transport violated the
FLSA’s overtime requirements when it employed him as a “switcher” at its St. Louis
terminal from October 2012 through May 2013.1 The district court2 granted Central
Transport summary judgment, agreeing that Williams worked as a “loader” of freight
in interstate commerce and thus fell within the MCA Exemption. Williams appeals.
The question of how Williams spent his time working for Central Transport is a
question of fact; the ultimate issue of whether his work activities exempted Central
Transport from paying FLSA overtime is one of law. See Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714 (1986); Jarrett v. ERC Props., Inc., 211 F.3d 1078,
1081 (8th Cir. 2000). Reviewing the grant of summary judgment and the district
court’s interpretation of these federal statutes de novo, we affirm. See McCall v.
Disabled Am. Veterans, 723 F.3d 962, 965 (8th Cir. 2013) (standard of review).

                                          I.

      Enacted in 1935, the MCA authorized the Interstate Commerce Commission
(ICC) to set the “qualifications and maximum hours of service” for employees of
motor vehicle common carriers. 49 U.S.C. § 304(a) (repealed).3 In 1938, Congress
enacted the FLSA, which empowered the Secretary of Labor to regulate the maximum


      1
       Williams filed the lawsuit as a collective action on behalf of himself and
“other similarly situated employees.” See 29 U.S.C. § 216(b). However, no other
employee opted into the suit.
      2
       The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
      3
       Congress transferred the ICC’s functions to the Secretary of Transportation
with some revision of the statute; this jurisdiction remains. See 49 U.S.C. § 31502(b).

                                         -2-
hours of covered employees. See 29 U.S.C. § 207(a)(1). Congress included the
MCA Exemption to avoid potentially overlapping jurisdictions. In the following
years, the Supreme Court issued a series of decisions interpreting the MCA
Exemption; those decisions govern the issue raised by Williams on appeal.

       In United States v. American Trucking Ass’ns, 310 U.S. 534, 553 (1940), the
Court rejected the contention of interstate truckers that all their employees are
exempt, concluding that the ICC’s jurisdiction to regulate maximum hours “is limited
to those employees whose activities affect the safety of [motor carrier] operation.”
In Southland Gasoline Co. v. Bayley, 319 U.S. 44, 47-48 (1943), the Court held that
the MCA Exemption applies whenever the Secretary of Transportation has the
authority to regulate the maximum hours of motor carrier employees, whether or not
that authority has been exercised. Thus, it is irrelevant that the Secretary has never
set maximum hours for motor carrier employees such as Williams.

       Before and after enactment of the FLSA, the ICC issued numerous reports and
regulations dealing “so thoroughly and expertly with the safety of operation of
interstate motor transportation as to entitle them to especially significant weight in
the interpretation of [the MCA].” Levinson v. Spector Motor Serv., 330 U.S. 649,
662 (1947). Following the Court’s decision in American Trucking, the ICC after
extensive hearings ruled that motor carrier drivers, mechanics, loaders, and drivers
helpers “perform duties which affect the safety of operation and are therefore subject
to the authority conferred [by the MCA] to prescribe qualifications and maximum
hours of service.” MC-2, 28 M.C.C. 125, 126 (1941).

       In Levinson, the Court upheld the ICC’s conclusion that loaders, as a class,
affect safety of operation:


      The evidence makes it entirely clear that a motor vehicle must be
      properly loaded to be safely operated on the highways of the country.

                                         -3-
      If more weight is placed on one side of the vehicle than on the other,
      there is a tendency to tip when rounding curves. If more weight is
      placed in the rear of the vehicle, the tendency is to raise the front wheels
      and make safe operation difficult. Further, it is necessary that the load
      be distributed properly over the axles of the motor vehicle.

330 U.S. at 652 n.2, quoting MC-2, 28 M.C.C. at 134. The Court clarified that the
MCA Exemption applies even if a loader does not spend all or even most of his time
on safety-affecting activities. To fall within the ICC’s (now the Secretary of
Transportation’s) jurisdiction, it is enough that an employee devote “a substantial part
of his time to activities directly affecting safety of operation.” Id. at 674, 681
(quotation omitted). In so ruling, the Court rejected the contrary position of the
Department of Labor (DOL), appearing as amicus curiae:

      [I]t is important to recognize that, by virtue of the unique provisions of
      [the MCA Exemption], we are not dealing with an exception to [the
      FLSA] which is to be measured by regulations which Congress has
      authorized to be made by the Administrator of the Wage and Hour
      Division, United States Department of Labor. Instead, we are dealing
      here with the interpretation of the scope of the safety program of the
      [ICC], under § 204 of the Motor Carrier Act, which in turn is to be
      interpreted in the light of the regulations made by the [ICC] pursuant to
      that Act. Id. at 676-77.

      In a companion case to Levinson, the Court held that whether a particular
employee falls within an exempt class, such as loader, “is to be determined by judicial
process.” Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 707 (1947). The
Court further explained:

      In contrast to the loading activities in the Levinson case, the mere
      handling of freight at a terminal, before or after loading, or even the
      placing of certain articles of freight on a motor carrier truck may form
      so trivial, casual or occasional a part of an employee’s activities . . . that

                                           -4-
       his activities will not come within the kind of ‘loading’ which is
       described by the [ICC] and which, in its opinion, affects safety of
       operation.

Id. at 708. The final Supreme Court decision relevant to construing the MCA
Exemption is Morris v. McComb, 332 U.S. 422, 434 (1947), where the Court held
that the ICC had jurisdiction to regulate the maximum hours of all randomly assigned
drivers and mechanics of a motor carrier whose operations were only 3-4% in
interstate commerce, and therefore the MCA Exemption applied to these employees.
As in Levinson, the Court rejected the DOL’s contrary contention.

                                            II.

       As a switcher, Williams’s duties included loading and unloading trailers,
moving trailers to and from loading docks, and repositioning freight with a forklift.
Williams testified that he loaded freight every week and nearly always worked on the
loading dock when working past the end of his shift. Williams loaded two types of
trailers -- “line-haul” and “city.” Line-haul trailers carry freight from St. Louis to
terminals around the country, whereas city trailers make deliveries in the St. Louis
region, which includes neighboring Illinois. Line-haul trailers are loaded “high and
tight,” meaning freight is packed wall-to-wall and floor-to-ceiling to prevent shifting
in transit. For city trailers, freight is spread across the floor, so the driver can access
the freight at each delivery. Though designated by Central Transport as a “city
loader,” Williams regularly loaded both types of trailers. Central Transport submitted
uncontested evidence that Williams loaded a total of 3,827 pieces of freight onto
line-haul trailers during the period in question.

       Williams lacked prior experience as a loader and knowledge of proper loading
techniques. Central Transport provided some initial training, and then, as Williams
testified, “I learned kind of as I would go.” At first, Williams would quickly place


                                           -5-
freight on the trailers and a more experienced loader would “fit it how he would want
it done.” With guidance from supervisors, Williams learned how to build a balanced
load; install a “decking system” inside the trailer to stack and secure freight; place
containers of liquid low due to their weight; position heavy freight in the nose of
small trailers; brace top-heavy freight with other freight or with load bars; and safely
load hazardous material such as corrosives, flammables, and gases. When loading
line-haul trailers, Williams picked up the freight and loaded it by himself.4
Supervisors monitored and corrected the loading work of dockworkers and checked
line-haul trailers before they left the dock. But supervisors did not follow Williams
around, constantly supervising his loading.

                                           III.

       Williams acknowledges that loaders are exempt from the FLSA but argues the
district court erred in classifying him as a loader. The Supreme Court in Levinson
held that an employee falls within this exempt class if “a substantial part of [his]
activities consisted of the doing or immediate direction of” activities that the ICC
described as directly affecting the safety of operation, such as “loading, distributing
and making secure heavy or light parcels of freight on board a truck so as to
contribute as much as possible to the safety of the trip.” But this does not include
non-safety-related activities such as “placing freight in convenient places in the


      4
          Williams testified at his deposition:

            Q: So my question to you is: These 3,827 times, almost 4,000, that
      you loaded freight onto line haul trailers, I take it you did that by
      yourself, you unloaded that freight by yourself, you loaded it by
      yourself; is that correct?

               A: Yes. That would be correct.


                                            -6-
terminal [or] checking bills of lading.” 330 U.S. at 674, 681; see Pyramid, 330 U.S.
at 708; MC-2, 28 M.C.C. at 134.

        The summary judgment record conclusively establishes that a substantial part
of Williams’s work consisted of loading activities the ICC described as directly
affecting the safety of motor carrier operation. He not only participated in the loading
of trailers destined for interstate line-haul operation, he frequently performed the
loading operation by himself, including safety-related tasks such as balancing trailer
loads, installing decks to safely stack freight “high and tight,” bracing top-heavy
freight, loading hazardous materials, and so forth. Over his relatively brief tenure at
Central Transport, Williams loaded thousands of parcels onto line-haul trailers and
presumably thousands more onto city trailers, which delivered freight into
neighboring Illinois. This was not the sort of “trivial, casual or occasional” activity
that triggers Pyramid’s de minimis exception to the MCA Exemption. Cf. Opelika
Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 42-43 (5th Cir. 1962)
(warehouseman who “on infrequent occasions” helped with loading not exempt).

       Despite this undisputed evidence of his actual duties in loading freight onto
Central Transport trailers, Williams argues the MCA Exemption does not apply
because he did not have responsibility “for exercising judgment and discretion in
planning and building a balanced load or in placing, distributing, or securing the
pieces of freight in such a manner that the safe operation of the vehicles on the
highways . . . will not be jeopardized,” as DOL regulations require. 29 C.F.R.
§ 782.5(a). The district court carefully considered the extensive summary judgment
record and concluded that undisputed evidence established that Williams did exercise
the requisite judgment and discretion. We agree.

      In addition, we conclude that “exercising judgment and discretion” is not the
governing standard. As the Supreme Court held in Levinson, 330 U.S. at 676-77, the
DOL has no authority to define what employees are subject to the Secretary of

                                          -7-
Transportation’s jurisdiction and therefore fall within the MCA Exemption, a ruling
acknowledged in the DOL’s regulations. See 29 C.F.R. § 782.1(a). Accordingly, we
give no weight or deference to the DOL’s regulation purporting to define who is an
exempt loader. Accord Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 251 n.5,
252-53 (3d Cir. 2005), cert. denied, 547 U.S. 1093 (2006); Troutt v. Stavola Bros.,
107 F.3d 1104, 1109 n.1 (4th Cir. 1997); Benson v. Universal Ambulance Serv., Inc.,
675 F.2d 783, 785 (6th Cir. 1982); Khan v. IBI Armored Servs., Inc., 474 F. Supp.
2d 448, 456 n.8 (E.D.N.Y. 2007).

       Moreover, the DOL regulation, 29 C.F.R. § 782.5(a), is contrary to the
Supreme Court’s governing standard. The ICC asserted jurisdiction over loaders
because “a motor vehicle must be properly loaded to be safely operated on the
highways.” MC-2, 28 M.C.C. at 134. “What the [ICC] intended to cover was the
physical act of loading freight in a safe manner.” Blankenship v. Thurston Motor
Lines, Inc., 415 F.2d 1193, 1195 n.3 (4th Cir. 1969) (quotation omitted). “[L]oaders,
even if closely supervised, remain within I.C.C. jurisdiction.” Id. at 1195-96
(collecting cases). Thus, Pyramid’s de minimis exception “is not based upon whether
the worker was supervised in activities that have an undeniable, direct effect on
safety,” such as loading a trailer bound for interstate travel. Vaughn v. Watkins
Motor Lines, Inc., 291 F.3d 900, 905 (6th Cir. 2002).

       Based on the Supreme Court’s controlling precedents, we conclude that, if an
employee spends a substantial part of his time (as defined in Levinson, Pyramid, and
Morris) participating in or directing the actual loading of a motor vehicle common
carrier’s trailers operating in interstate or foreign commerce, the Secretary of
Transportation has the authority to regulate that employee’s hours of service and the
MCA Exemption applies, regardless of the employee’s precise role in the loading
process. As the summary judgment record conclusively establishes that a substantial
part of Williams’s time during the relevant period was spent loading Central



                                         -8-
Transport trailers for interstate transportation, the MCA Exemption applies, and the
district court properly granted summary judgment dismissing his FLSA claims.5

      The judgment of the district court is affirmed.
                     ______________________________




      5
       This conclusion makes irrelevant and/or moot Williams’s additional
contention that the district court abused its discretion in excluding his declaration that
he “did not exercise [his] own direction or judgment in placing freight” on Central
Transport’s line-haul trailers on the ground that the declaration conflicted with his
prior deposition testimony.

                                           -9-
