PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH TROUTT,
Plaintiff-Appellee,

v.
                                                                    No. 95-2736
STAVOLA BROTHERS, INCORPORATED,
d/b/a Stavola Brothers Racing,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
William L. Osteen, Sr., District Judge.
(CA-94-417-4)

Argued: January 28, 1997

Decided: March 4, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Murnaghan and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: Paul Bradford Taylor, VAN HOY, REUTLINGER &
TAYLOR, Charlotte, North Carolina, for Appellant. J. Lynn Bishop,
Charlotte, North Carolina, for Appellee. ON BRIEF: Philip M.
Van Hoy, VAN HOY, REUTLINGER & TAYLOR, Charlotte, North
Carolina, for Appellant.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A race car body fabricator sued his employer for overtime pay
under the Fair Labor Standards Act (FLSA). The employer asserted
that the employee was exempt from the overtime provisions of FLSA
because he was a "loader" of a private motor carrier whose loading
activities affected the safety of the carrier's operation in interstate
commerce. After a bench trial, the district court entered judgment for
the employee, concluding that he was not a "loader" and so not
exempt from the overtime provisions of FLSA. Troutt v. Stavola
Brothers, Inc., 905 F. Supp. 295 (M.D.N.C. 1995). We affirm.

I.

From November 1990 to March 1994, Stavola Brothers, Incorpo-
rated employed Kenneth Troutt as a race car body fabricator. A fabri-
cator forms raw sheet metal into a race car body.

Stavola builds and races stock cars in NASCAR-sponsored races
throughout the United States. In order to compete in races, Stavola
transports two stock cars, along with other equipment, in a "trans-
porter," a custom-built tractor trailer. The transporter is assigned a
United States Department of Transportation number, which is dis-
played on its cab door.

After being rolled onto the tracks inside the transporter, Stavola's
stock cars are "chocked" and strapped into the tracks. "Chocking"
refers to the practice of "the clamping of the race car wheels into the
tracks, through the use of a metal chock that attaches to the wheels
and is then secured to the track by screws that are bolted onto the
track." Id. at 298. After being chocked, a car is secured "with nylon
straps that are placed around the wheels and the track" to maintain the
car in place. Id.

Troutt and other Stavola employees, including the transporter's
driver, testified that it was the driver's responsibility to see that the
cars and other equipment were secured when loading the transporter.

                     2
Thus, the district court expressly found that the driver was the
employee "responsible for ensuring that all equipment is secured and
stowed in a proper manner." Id. at 298-299. All Stavola employees,
however, at one time or another, assisted in some way in packing the
transporter. Troutt assisted primarily by moving equipment to the
ramp at the end of the transporter and by pushing race cars onto the
transporter. Id. at 299. Additionally, on two occasions, Troutt
"chocked down" the wheels of a stock car on the track inside the
transporter. Id. Troutt testified that other than these two instances of
"chocking," he never secured anything inside the transporter.
Although a company witness disputed this, other employees generally
confirmed Troutt's testimony and the district court found that Stavola
had not proved by a "preponderance of the evidence" that Troutt
"took part in any other securing of equipment inside the transporter."
Id.

When Stavola originally hired Troutt, management agreed that he
need not work overtime; he was paid for and worked a 40-hour work
week. However, in July 1991, a new general manager required all
employees to work significant amounts of overtime, including nights
and weekends. Troutt received no additional compensation for any of
the extra hours worked. Beginning in January 1992 Troutt contempo-
raneously recorded his overtime hours. He calculated that he worked
more than 1400 overtime hours between January 1992 and March
1994.

After a two-day trial, the district court issued a memorandum opin-
ion, including detailed findings of fact and conclusions of law. The
court concluded that Troutt's only loading activities "which could
conceivably affect safety of operation fall into th[e] `de minimus'
[sic] category" and for this reason Troutt was not exempted from the
overtime provisions of FLSA. Id. at 300. Although assessing it a
"close question," the district court further found that Troutt had failed
to establish that Stavola willfully violated FLSA and so Troutt could
only collect overtime pay for hours worked for two years prior to fil-
ing suit, i.e. not for the period prior to June 28, 1992. Id. at 302. After
examining week-by-week the overtime compensation claimed by
Troutt and making adjustments consistent with Stavola's records, the
district court entered judgment for Troutt in the amount of $53,091.36

                     3
-- comprised of unpaid overtime compensation of $26,545.68 and an
equal amount in liquidated damages. Id. at 308.

II.

On appeal, Stavola's sole claim is that the district court erred in
concluding that Troutt was not exempt from FLSA. Resolution of this
question rests on the interaction of two federal statutes -- the Motor
Carrier Act and FLSA.

In 1935, Congress passed the Motor Carrier Act, ch. 498, 49 Stat.
543 (1935) (codified as amended at 49 U.S.C.A. §§ 502-507, 522-
523, 525-526, 31502-31504 (West 1997)), authorizing the Interstate
Commerce Commission (I.C.C.) to establish requirements with
respect to qualification and maximum hours for employees of a com-
mon carrier, whose work affects the safety of the carrier. Although
Congress later transferred these functions to the Secretary of Trans-
portation, and revised some of the language in the statute, the statu-
tory charge itself remains intact. See 49 U.S.C.A. § 31502(b)(2)
(West 1997) (Secretary of Transportation may prescribe requirements
for "qualifications and maximum hours of service of employees of . . .
a motor private carrier, when needed to promote safety of operation").
A "motor private carrier" subject to regulation by the Secretary of
Transportation is one that provides transportation on public highways
between two states. See 49 U.S.C.A. § 13102(13) and § 13501 (West
1997). Thus, under the Motor Carrier Act the Secretary of Transporta-
tion has the authority to regulate the hours of an employee (1) who
works for a private motor carrier that provides transportation in inter-
state commerce and (2) whose work activities affect the "safety of
operation" of that motor carrier.

Three years after the passage of the Motor Carrier Act, FLSA was
enacted. See ch. 676, 52 Stat. 1060 (1938) (codified as amended at 29
U.S.C.A. §§ 201-219 (West, WESTLAW through Nov. 12, 1996)).
FLSA generally empowers the Secretary of Labor to regulate the
hours of certain employees. However, Congress expressly exempted
from the overtime provisions of FLSA any motor carrier employee
over whom the I.C.C. (now the Secretary of Transportation) had the
"power to establish qualifications and maximum hours of service"
under the Motor Carrier Act. See ch. 676,§ 13, 52 Stat. 1067 (1938)

                    4
(codified as amended at 49 U.S.C.A. § 31502(b)(2) (West 1997)).
This motor carrier exemption from FLSA, like the authority granted
under the Motor Carrier Act itself, has never been limited, and so sur-
vives in all material respects in current law. See 29 U.S.C.A.
§ 213(b)(1) (West, WESTLAW through Nov. 12, 1996).

The Supreme Court has examined the interaction between FLSA
and the Motor Carrier Act on several occasions. The Court has man-
dated that the critical consideration in determining whether the Motor
Carrier Act governs a motor carrier employee and so exempts him
from FLSA is whether that employee's activities"affect safety of
operation." United States v. American Trucking Assn's, 310 U.S. 534,
553 (1940). The jurisdiction of the Secretary of Transportation under
the Motor Carrier Act is "limited to those [motor carrier] employees
whose activities affect the safety of operation. The[Secretary] has no
jurisdiction to regulate the qualifications or hours of service of any
others." Id. See also Levinson v. Spector Motor Service, 330 U.S. 649,
671 (1947) ("The fundamental test is simply that the employee's
activities affect safety of operation."). Motor carrier employees whose
activities affect the safety of operation of the motor carrier are cov-
ered by the Motor Carrier Act and exempt from regulation under
FLSA; but those whose activities do not affect the safety of operation
are not governed by the Motor Carrier Act, and not exempt from the
wage and hour provisions of FLSA.

The Court has held that, in view of Congress's determination that
safety is paramount, it is the agency's power under the Motor Carrier
Act to regulate "qualifications and maximum hours" that determines
whether that statute applies, not whether the agency has exercised its
power. Id. at 673; Morris v. McComb, 332 U.S. 422, 434 (1947).
Accordingly, although the Department of Transportation only regu-
lates the activities of truck drivers, 49 C.F.R.§ 395.3 (1995), because
the agency has asserted the power to regulate the activities of certain
other employees, i.e., loaders, mechanics, and helpers, those employ-
ees are also exempt from FLSA. Levinson, 330 U.S. at 673.

Such employees need not devote all or even the majority of their
time to safety-affecting activities in order to be covered by the Motor
Carrier Act. Id. at 674. Thus it is enough that a "loader" devote "a
`substantial part' of his time to activities affecting safety of opera-

                    5
tion." Id. at 681. On the other hand,"the mere handling of freight at
a terminal, before or after loading, or even the placing of certain arti-
cles of freight on a motor carrier truck may form so trivial, casual or
occasional a part of an employee's activities, or his activities may
relate only to such articles or to such limited handling of them, that
his activities will not come within the kind of`loading' which is
described by the Commission and which, in its opinion, affects safety
of operation." Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695,
708 (1947).

III.

Stavola's principal argument on appeal is that a court must find an
employee is covered by the Motor Carrier Act, and so exempt from
the FLSA, if he is "a member of a class of employees that regularly
engaged in activities that affected the safety of interstate transporta-
tion." Brief for Appellant at 8 (emphasis added). Stavola maintains
that the district court erred in focusing on Troutt's actual activities --
that he, in fact, only secured items in the transporter twice during
more than three years. Stavola asserts that no matter how minor or
peripheral Troutt's actual loading activities were, he was a member
of the class of "loaders" and so automatically covered by the Motor
Carrier Act.

Stavola's argument fails because its analysis is incomplete. Stavola
is correct that an employee's class of work plays an important role in
the determination. This is so because the Secretary of Transporta-
tion's -- and prior to the Secretary, the I.C.C.'s-- jurisdiction com-
prises only certain classes of motor carrier employees -- truck
drivers, loaders, mechanics, and helpers; only if an employee falls
within one of these classes does the Motor Carrier Act govern him.
Pyramid, 330 U.S. at 706-07 ("The Commission has defined its juris-
diction, both affirmatively and negatively, as follows . . . . `we have
power . . . to establish qualifications and maximum hours of service
for . . . mechanics, loaders and helpers . . . and .. . we have no such
power over any other classes of employees, except drivers.'") (quot-
ing Ex Parte No. MC-2, 28 M.C.C. 125, 139 (1941)). Recognizing the
agency's authority to determine what classifications of work affect
safety of operation of motor carriers, the Supreme Court has clearly

                     6
accepted these classifications. See Levinson, 330 U.S. at 669;
Pyramid, 330 U.S. at 707.1

But what Stavola ignores is that the Supreme Court has been
equally clear that when there is a factual question as to whether a par-
ticular employee is within one of these covered classifications that
question is decided in the judicial process and on an individual basis.
Thus, in Pyramid, after noting that the I.C.C. had "done its work" by
"defin[ing] its jurisdiction" in establishing the above classifications,
the Supreme Court remanded the case for the district court to deter-
mine whether "the activities of each respondent, either as a whole or
in substantial part, come within the Commission's definition of the
work of a `loader.'" 330 U.S. at 706-07 (emphasis added).

The Supreme Court further instructed that "the District Court shall
_________________________________________________________________
1 In defining its jurisdiction the I.C.C. briefly described the work of
loaders as those "whose sole duties are to load and unload motor vehicles
and transfer freight between motor vehicles and between the vehicles and
the warehouse." MC-2, 28 M.C.C. at 134. In Levinson and Pyramid, the
Supreme Court elaborated on this description. Levinson, 330 U.S. at 652
n.2, 674-75; Pyramid, 330 U.S. at 698-708. Apparently, this description,
as explained by the Court in Levinson and Pyramid, is the only definition
of the work of loaders ever adopted by the I.C.C. or Secretary of Trans-
portation. However, the Wage and Hour Division of the Department of
Labor has issued an interpretative bulletin, defining the work of a
"loader," which incorporates and expands on this definition. See 29
C.F.R. 782.5 (1995). Both parties seek to rely on this interpretative bulle-
tin. However, in Levinson the Supreme Court specifically noted that the
"unique provisions" of the motor carrier exemption to the FLSA meant
that the court was: "not dealing with an exception to that Act 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 Interstate Commerce Commis-
sion, under § 204 of the Motor Carrier Act, which in turn is to be inter-
preted in the light of the regulations made by the Interstate Commerce
Commission pursuant to that Act." Levinson , 330 U.S. at 676-77 (empha-
sis in original) (footnote omitted). Accordingly, although we note that the
Wage and Hour Division's interpretative bulletin supports the district
court's analysis and holding, we give no weight to the bulletin.

                    7
not be concluded by the name which may have been given to [an
employee's] position," but "shall give particular attention to whether
or not the activities of the respective respondents included that kind
of `loading' which is held by the Commission to affect safety of oper-
ation." Id. at 707-08. The Pyramid Court then cautioned that some
loading activities are so "limited" or may form so "trivial, casual or
occasional a part of an employee's activities" that they "will not come
within the kind of `loading' which is described by the Commission
and which, in its opinion, affects safety of operation." Id. at 708.
Finally, the Court concluded that if the district court should determine
that the "alleged `loading' activities of the respective respondents" do
not fall within the kind of work the Commission has determined
affect safety of operation, then "those respondents . . . are entitled to
the benefits of § 7 of the Fair Labor Standards Act." Id. Thus, rather
than error as Stavola suggests, the district court's focus on Troutt's
individual activities to determine if they were the"kind of `loading'
which is held by [the Secretary of Transportation] to affect safety of
operation" is the precise inquiry mandated by the Supreme Court in
Pyramid. 330 U.S. at 708.

Morris v. McComb, 332 U.S. at 434, is not to the contrary. Unlike
Pyramid, Levinson, American Trucking , and the case at hand, the
principal issue in Morris was not whether an employee's activities
affected safety of operation, but the very different question of whether
the motor carrier provided transportation in interstate commerce.2
Morris held that a motor carrier, which conducted only 4% of its busi-
ness in interstate commerce but which was required, by "virtue of that
status" as a licensed carrier to accept interstate business, was covered
by the Motor Carrier Act. Morris, 332 U.S. at 434. All of the carrier's
"drivers and these `mechanics' whose work affect[ed] the safety of
transportation," who were concededly employed full time as such and
who "shared indiscriminately" interstate assignments, were held cov-
ered by the Motor Carrier Act, even though two of the drivers in a
given year performed all of their work in intrastate commerce. Id. at
431, 433. Accord Griffin v. Consolidated Foods Corp., 771 F.2d 826
_________________________________________________________________
2 It is undisputed that Stavola is a "motor private carrier" that provides
transportation on public highways between two states. 49 U.S.C.A.
§ 13102(13) and § 13501 (West 1997).

                     8
(4th Cir. 1985); Brennan v. Schwerman Trucking Co., 540 F.2d 1200
(4th Cir. 1976).

Contrary to Stavola's suggestion, Morris did not thereby overrule
Pyramid's command (issued only a few months earlier), that in deter-
mining if an employee's work affected the "safety of operation" a
court is to examine the work of the individual employee or Pyramid's
directive that an individual employee's loading activities may be so
"limited," "trivial," "casual," or"occasional" as to be de minimis and
so not affect "safety of operation." 330 U.S. at 708.3 In Morris, it was
conceded that the work of those held covered by the Motor Carrier
Act and exempt from FLSA -- truck drivers and certain mechanics
who worked full time as such -- affected "the safety of transporta-
tion." 332 U.S. at 431.

Indeed, to the extent Morris considered the safety issue, it followed
the same approach articulated in Pyramid. Noting that "nothing in the
record [showed] the extent to which the respective garagemen and
laborers devoted themselves to" the kinds of work which affected
safety, the Morris court observed that if this were a case "to recover
overtime for individual employees, it would be necessary to deter-
mine that fact." 332 U.S. at 430. In other words, when an individual
employee claims overtime pay, as in the case at hand, the Morris
_________________________________________________________________
3 In the fifty years since Morris and Pyramid were issued, no court has
held Morris overruled Pyramid. Rather, we and several of our sister cir-
cuits have expressly recognized that Pyramid remains good law. See,
e.g., Blankenship v. Thurston Motor Lines, Inc., 415 F.2d 1193, 1196
(4th Cir. 1969) (Pyramid "demonstrate[s] the application of the de
minimis rule, that is, that I.C.C. jurisdiction would not attach if an
employee's activities directly related to the safety of interstate vehicles
were trivial in relation to his overall duties."); Friedrich v. U.S. Com-
puter Services, 974 F.2d 409, 416 (3rd Cir. 1992) (citing Pyramid in
observing that "[t]he Supreme Court has recognized a de minimis excep-
tion to the application of the MCA"); Crooker v. Sexton Motors, Inc.,
469 F.2d 206, 209 (1st Cir. 1972) (adopting a construction of the Motor
Carrier exemption which "is not contrary to Pyramid"); Yellow Transit
Freight Lines, Inc. v. Balven, 320 F.2d 495, 498 (8th Cir. 1963) (quoting
Pyramid's language that the district court should focus on whether an
employee's activities "included that kind of`loading' which is held by
the Commission to affect safety of operation.").

                    9
Court recognized that it was "necessary to determine" the facts as to
the employee's duties in order to decide if they fall within one of the
classifications of work covered by the Motor Carrier Act. Not only
did Morris thus follow the Pyramid approach, it also reaffirmed the
Pyramid holding that if an employee's individual duties are found not
to be within a defined Motor Carrier Act classification, the employee
is entitled to the benefits of FLSA. Thus, Morris expressly approved
the issuance of an injunction "against violation of § 7 of the Fair
Labor Standards Act . . . to those garagemen and laborers who are not
`mechanics' as defined by the Interstate Commerce Commission."
332 U.S. at 430.

In sum, the district court did not commit any legal error in focusing
upon Troutt's actual loading activities.

IV.

Stavola's only remaining challenge is to two portions of the district
court's factual findings with respect to the nature of Troutt's actual
loading activities.

The district court found:

          [T]he only activity involving the securing of equipment by
          Plaintiff proven by a preponderance of the evidence is that
          Plaintiff on two occasions chocked down the wheels of race
          cars inside the transporter. This activity falls within the "de
          minimus" [sic] exception discussed by the Supreme Court in
          Pyramid Motor Freight. The evidence established that the
          chocks are only a preliminary securing device, to be used in
          conjunction with the nylon straps to secure the car inside the
          transporter. No evidence establishes that Plaintiff ever
          secured the nylon straps around the wheels of the cars, or in
          any other way secured any other item inside the transporter.
          Furthermore, Plaintiff secured chocks only two times during
          the approximate three year span he was employed by Defen-
          dant.

Troutt, 905 F. Supp. at 300.

Stavola does not assert that the district court's critical finding that
Troutt only chocked down the wheels twice in a three year span is

                     10
clearly erroneous. The company does claim that the district court
erred with regard to its finding as to the evidence as to Troutt's secur-
ing of "any other item inside the transporter." Brief for Appellant at
22. Stavola asserts that because a company witness testified that
Troutt did secure other items, it was error to conclude that there was
"no evidence" of this. Stavola misreads the district court's finding.
The court did not find that no evidence "exists" as to whether Troutt
secured other items but rather, that no evidence"establishes" this fact;
the district court had twice expressly explained that the company had
not established this fact "by a preponderance of the evidence." Troutt,
905 F. Supp. at 299, 300. The record supports this finding.

Stavola's remaining attack on the district court's factual findings
concerns the nature of the chocks. The company maintains that no
evidence supports the district court's finding that the chocks are "a
preliminary securing device." In this instance, Stavola misreads the
record. The truck driver himself testified:

          [Y]ou had wheel chocks that went under the wheels that you
          placed in a certain spot. . . . -- the ones we used were metal,
          and they were bolted down. Once you placed them where
          they went, a bolt held them to the floor. Then, there is what
          we call ratchet straps. It's something like a cargo strap. You
          take four straps per car and strap the car to the floor also,
          so it can't move in case the chock moves.

From this testimony, a factfinder could conclude that chocks were,
indeed, a "preliminary securing device." Thus, there was no error.
Moreover, even if the evidence did demonstrate that the chocks con-
stituted more than a "preliminary securing device," our holding would
remain unchanged; Troutt's use of the chocks on two occasions in
more than three years of employment clearly falls within Pyramid's
"de minimis" exception.

V.

The district court neither employed an improper legal analysis nor
made erroneous factual findings in concluding that Troutt was cov-
ered by FLSA. Accordingly, the judgment of the district court is

AFFIRMED.

                     11
