United States District Court, District of New Jersey, D.
August 22, 2000
UNITED TRANSPORTATION UNION LOCAL 759, JOSEPH FRIERSON, GEORGE SERVICE, A. MERCEDAT, W. MILLS, M. ACEVEDO, RONALD HAMPTON, J. SHERMAN, NORMA CHANCEY, E. ACEVEDO, BLAIR OLDS, MALLEY SHAW, CALVIN BURRIS, T. RODRIGUEZ, LUIS G. LUGARDO, L. DEBREAUX, NELSON MANZANO, J. SPANN, L. GLENN, L. HINTON, KEVIN SMITH, E. ANDERSON, D. PIERRE, ELOIS ANDERSON, LEROY GLENN, GREGORY MORRISON, CHARLES SMITH, Q. DANIEL, L. CHARLES, EUGENE VICK, K. THORPE, E. RODRIGUEZ, J. BENIOT, W. HUGHES, I. CULVER, E. GLOVER, C. FRANCOIS, J. MICKENS, C. SMITH, R. WHITMORE, C. HAYES, L.A. LUGARDO, E. GLADDEN, J. LOGAN, E. FELDER, Z. SHIVERS, G. SUTTON, I. ROSA, F. CHONG, E. BOWEN, W. BLAND, L. LIGHTSEY, G. LOAIZA, D. FULLARD, A. JONES, J. GABRIEL, H. SHEPARD, F. JAMES, J. HENRY, R. JOHNSON, P. TAMBA, R. FUNNYE, J. LOPERENA, EMISLAIR ROSALVA, N. JACKSON, C. HALL, R. CAMRON, J. HENDERSON, C. SMALL, S. BAILEY, M. PEMBERTON, M. WASHINGTON, AND SIMILARLY SITUATED BUS DRIVERS, 14600 DETROIT AVENUE, CLEVELAND, OHIO 44107, PLAINTIFFS,
ORANGE NEWARK ELIZABETH BUS, INC., D/B/A ONE BUS COMPANY, 889 FRELINGHUYSEN AVENUE, NEWARK, NEW JERSEY 07114, DEFENDANT.
The opinion of the court was delivered by: Hochberg, District Judge.
Plaintiffs, United Transportation Union Local 759 and
individual employees of Defendant. Orange Newark Elizabeth Bus,
Inc., d/b/a ONE Bus Company ("ONE Bus"), filed a complaint on
July 27, 1998, alleging that ONE Bus failed to pay them overtime
wages in violation of the Fair Labor Standards Act ("FLSA"),
29 U.S.C. § 201 et seq. On May 25, 1999, this Court denied ONE
Bus' motion to dismiss without reaching the merits of the case.
The instant action comes before this court on cross motions for
summary judgment. This Court has reviewed the submissions of the
parties without oral argument, pursuant to Fed.R.Civ.P. 78. For
the reasons stated below. Defendant ONE Bus' motion for summary
judgment is granted, and Plaintiffs' summary judgement motion is
I. STATEMENT OF FACTS
Plaintiffs are current or former bus drivers for ONE Bus. ONE
Bus is a private corporation headquartered in Newark, New
Jersey. ONE Bus operates local passenger bus routes in Orange,
Newark, and Elizabeth, New Jersey. ONE Bus operates only in New
Jersey. ONE Bus transports passengers to train stations and
other bus companies' routes, which provide service outside of
New Jersey to points in New York, Pennsylvania, Washington,
D.C., and New England. ONE Bus has not paid Plaintiff bus
drivers over-time, at a rate not less than one and one-half the
regular rate at which they were employed, for time worked in
excess of forty hours in a week.
ONE Bus holds a common carrier certificate, No. MC-2062227-C,
issued by the Interstate Commerce Commission ("ICC"), which it
has held since March 7, 1988.*fn1
The certificate was revoked on April 2, 1997 and was not
reinstated until August 20, 1998. ONE Bus asserts that this was
the result of a clerical error by an insurance broker, and not
an indication of a lack of ICC jurisdiction. Moreover, ONE Bus
claims that the company continued to follow all pertinent United
States Department of Transportation ("DOT") regulations even
during the revocation period. In support of this contention, ONE
Bus points out that all ONE Bus drivers receive a copy of the
Federal Motor Carrier Safety Regulations and sign an
acknowledgment of receipt. Drivers must submit an application
for employment, meet driver's license requirements, submit motor
vehicle reports, conduct road tests, receive annual driving
history reviews, submit to physical exams and controlled
substance and alcohol tests, and follow other regulations
imposed by the Federal Motor Carrier Safety Act ("MCSA").*fn2
Since 1987, ONE Bus has participated in the New Jersey Transit
Bus Card Program, which includes the Interstate Bus Pass system.
This is a ticketing arrangement by which individuals boarding
ONE Bus company buses may use the same bus pass for a ride on
another carriers' interstate bus traveling to New York. ONE Bus
also participates in the New Jersey Transit "Feeder Fare"
program, where New Jersey Transit passes may be used for both
interstate rail transportation and a discounted fare on ONE Bus.
On July 27, 1998, Plaintiffs filed suit in this Court,
alleging a violation of the overtime provisions of the FLSA,
29 U.S.C. § 207(a)(1). In response, Defendant ONE Bus contends that
it is exempt from the overtime provisions codified at
29 U.S.C. § 213(b)(1), because it is covered by DOT regulations, pursuant
to Section 204 of the MCSA.
II. STANDARD OF REVIEW
Pursuant to Rule 56(c), a motion for summary judgement will be
granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgement as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). In other words, "[s]ummary judgement may
be granted only if there exists no genuine issue of material
fact that would permit a reasonable jury to find for the
nonmoving party." Miller v. Indiana Hosp., 843 F.2d 139, 143
(3d Cir. 1988). All facts and inferences must be construed in
the light most favorable to the non-moving party. See Peters v.
Delaware River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).
Substantive law controls the inquiry into which facts are
"material." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An
issue is "genuine" if a reasonable jury could decide the issue
in the nonmovant's favor. Id. Thus, "[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment." Id.; accord Ridgewood Bd. of Educ. v. M.E.,
172 F.3d 238, 252 (3d Cir. 1999) (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986)).
The party seeking summary judgment always bears the initial
burden of production. Celotex Corp., 477 U.S. at 323, 106
S.Ct. 2548. This requires the moving party to establish either
that there is no genuine issue of fact and that the moving part
must prevail as a matter of law, or to
demonstrate that the nonmoving party has not shown the requisite
facts relating to an essential element of an issue on which it
bears the burden. See Id. at 322-23, 106 S.Ct. 2548. Once the
party seeking summary judgment has carried this initial burden,
the burden shifts to the nonmoving party. To avoid summary
judgment, the nonmoving party must demonstrate facts supporting
each element for which it bears the burden, and it must
establish the existence of "genuine issue[s] of material fact"
justifying trial. Miller, 843 F.2d at 143; see also Celotex
Corp., 477 U.S. at 324, 106 S.Ct. 2548.
At the summary judgement stage, this Court neither weighs the
evidence nor makes credibility determinations; these tasks are
the sole responsibility of the factfinder. See Anderson, 477
U.S. at 249, 106 S.Ct. 2505. Therefore, to demonstrate a genuine
issue of material fact, the summary judgement opponent need not
produce evidence so strong that a decision in its favor is
mandated. Rather, the party opposing summary judgment must
adduce "evidence on which the jury could reasonably find for the
[nonmovant]." Id. at 252, 106 S.Ct. 2505. "The mere existence
of a scintilla of existence in support of the [nonmovant's]
position will be insufficient." Id.; see also In re
Headquarters Dodge v. General Motors Corp., 13 F.3d 674, 679
(3d Cir. 1993). "Speculation and conclusory allegations do not
satisfy this duty." Ridgewood Bd. of Educ., 172 F.3d at 252
(citing Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d
It is clear that if a moving party satisfies its initial
burden of establishing a prima facie case for summary
judgment, the opposing party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Instead, "[w]here
the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no `genuine issue
for trial.'" Id. at 587, 106 S.Ct. 1348 (quoting First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253,
289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
This case turns on whether Defendant, ONE Bus, is regulated by
the provisions of the FLSA or by the provisions of the MCSA. It
is well settled that a single employer cannot be subject to both
Acts; where the DOT is empowered by the MCSA to establish the
maximum number of hours an employee can work. DOT jurisdiction
supercedes the DOL's authority under the FLSA. Morris v.
McComb, 332 U.S. 422, 437-38, 68 S.Ct. 131, 92 L.Ed. 44 (1947);
Levinson v. Spector Motor Service, 330 U.S. 649, 661-62, 677,
67 S.Ct. 931, 91 L.Ed. 1158 (1947); Friedrich v. U.S. Computer
Services, 974 F.2d 409 (3d Cir. 1992). Where motor carriers
operate interstate, the DOT is responsible for promulgating the
maximum number of hours in an employee workday. In this case,
the sole question before this Court is whether Defendant is
exempt from the overtime pay provision of the FLSA because it is
covered by the DOT. Plaintiffs contend that they are entitled to
overtime pay under the FLSA. Defendant responds that it is
exempted from the overtime pay provisions of the FLSA.
The FLSA provides, in relevant part, that "[t]he provisions of
section 207 of this title shall not apply with respect to — (1)
any employee with respect to whom the Secretary of
Transportation has power to establish qualification and maximum
hours of service pursuant to the provision of section 31502 of
Title 49;". 29 U.S.C. § 213(b)(1). 49 U.S.C. § 31502 indicates
that it applies to "transportation described in sections 13501
and 13502 of this title;" and 49 U.S.C. § 13501 provides, in
"The Secretary [of Transportation] and the Board have
jurisdiction  over transportation by motor carrier
and the procurement of that transportation, to the
extent that passengers, property, or both, are
transported by motor carrier —
(1) between a place in — (A) a State and a place in
another State; (B) a State and another place in the
same State through another State . . .".
The Department of Labor has attempted to clarify which
employers are exempt from the overtime pay provisions of the
FLSA by virtue of their status as motor carriers under the
jurisdiction of the Department of Transportation. The DOL
guidelines indicate that employees who
"(1) are employed by carriers whose transportation of
passengers or property by motor vehicle is subject to
[DOT] jurisdiction under section 204 of the [MCSA]
and (2) engage in activities of a character directly
affecting the safety of operation of motor vehicles
in the transportation on the pubic highways of
passengers or property in interstate or foreign
commerce within the meaning of the [MCSA],"
are not entitled to overtime pay under the FLSA.
29 C.F.R. § 782.2 (internal citations omitted); see also Levinson, 330
U.S. at 661, 665-66, 673, 67 S.Ct. 931.
Reading the above provisions together, ONE BUS is exempt from
the overtime pay provisions of the FLSA if it can show that the
Plaintiff drivers; (1) engage in activities affecting the safe
operation of a motor carrier; (2) operate a motor carrier in
interstate commerce; and (3) are therefore subject to DOT
jurisdiction by virtue of 49 U.S.C. § 13501.
Plaintiff drivers concede that they are engaged in activities
which affect the safe operation of a motor carrier. Therefore,
prong one of the above test has been satisfied.
Defendant admits that its drivers operate vehicles only in the
state of New Jersey. However, Defendant asserts that its
participation in through-ticketing arrangements qualifies it as
a motor carrier operating in interstate transportation.
ONE Bus participates in two programs which result in the
convergence of interstate and intrastate transportation. The New
Jersey Transit Interstate Bus Pass entitles the passenger who
purchases the pass to transportation within the state of New
Jersey by ONE Bus. The same pass also entitles the passenger to
prior or subsequent transportation between the states of New
Jersey and New York on a bus owned by another carrier. The
"Feeder Fare" program entitles passengers who hold a ONE Bus
ticket to reduced rates on buses or trains providing
transportation between Newark International Airport in New
Jersey and the Port Authority Terminal in New York. Passengers
who participate in the Feeder Fare program are also entitled to
discount tickets on Amtrak trains traveling throughout the
This Court must determine whether the aforementioned ticketing
arrangements are activities which, "relate directly to the
transportation of materials moving in interstate or foreign
commerce within the meaning of the [MCSA]."
29 C.F.R. § 782.7(a). Under the MCSA, motor vehicle transportation is
interstate, "if what is being transported is actually moving in
interstate commerce . . ." 29 C.F.R. § 782.7(b)(1). These
regulations reveal that transportation by motor vehicle may be
interstate even where the vehicle does not cross state lines, so
long as the passengers or cargo is in the process of interstate
travel. Essentially, interstate transportation occurs whenever
the transportation is part of a "practical continuity of
movement," across State lines. Id. "[W]here it appears that a
motor carrier employee is engaged as a driver . . . in
transportation by motor vehicle which, although confined to a
single State, is a part of an interstate movement of the goods
or persons being thus transported so as to constitute interstate
commerce within the meaning of the [FLSA]," that employee is not
covered by the overtime pay provision of the FLSA. Id.
Case law establishes that "[t]he fact that several different
and independent agencies are employed in transporting the
commodity, some acting entirely in one state, and some acting
through two or more States, does in no respect affect the
character of the transaction." The Daniel Ball, 10 Wall. 557,
77 U.S. 557, 565, 19 L.Ed. 999 (1870). Indeed, "[i]t is
elemental that a carrier is engaged in interstate commerce . . .
even though the route of the particular carrier is wholly within
one state . . . `Through' is not to be confused with purely
`local' traffic not destined for points outside the state of
origin." Merchants Fast Motor Lines, Inc. v. I.C.C.,
528 F.2d 1042, 1044 (5th Cir. 1976); see also Earle v. Brink's, Inc.,
54 F. Supp. 676, 678 (S.D.N.Y. 1943) ("[I]t is not necessary
under the [MCSA] that the motor vehicles operated by the
plaintiffs must actually cross State lines in order to confer
jurisdiction on the [DOT].").
The Supreme Court crystallized the common law definition of
interstate transportation in United States v. Capital Transit
Co. 325 U.S. 357, 65 S.Ct. 1176, 89 L.Ed. 1663 (1945). Capital
Transit involved the transportation of military personnel from
their homes in one state to their place of work in a neighboring
state. The Supreme Court explained:
"Their interstate journey to work actually began at
the time they boarded a Transit but or streetcar near
their home, and actually ended when they alighted
from the Virginia going bus at their place of work.
On returning from work their interstate journey
actually began when they boarded a bus near their
work and actually ended when they alighted from a
Transit streetcar or bus near their home. True, their
interstate trip was broken at the District termini of
the Virginia buses. . . . But in the commonly
accepted sense of the transportation concept, their
entire trip was interstate."
Id. at 363, 65 S.Ct. 1176 (citing, Baltimore & O.S.W.R.R. Co.
v. Settle, 260 U.S. 166, 43 S.Ct. 28, 67 L.Ed. 189); see also
Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct.
332, 87 L.Ed. 460 (1943) (a "temporary pause in their transit
does not mean that they are no longer `in commerce.'");
Southerland Tours v. St. Croix Taxicab Ass'n, 315 F.2d 364,
368-69 (3d Cir. 1963) (Where passengers pre-arrange their
complete travel, including intrastate transportation to the
airport via taxi, as part of a pre-paid vacation package, those
passengers "[are] in the stream of commerce from the time they
[leave] their homes until they return home again."). Under
this analysis, ONE Bus's intrastate transportation of passengers
using a single ticket for inter and intra state travel is
sufficient to place ONE Bus in interstate transportation and
exempt it from the overtime pay provisions of the FLSA.
An opinion letter from the Wage and Hour Division of the DOL,
which is based on a DOT ruling issued July 8, 1974, specifies
the type of intrastate transportation the agencies view as
sufficient to bring an employer within the interstate
"Section 204 does not apply merely because the
operator makes stops at airports, railroad stations
or bus depots and picks up passengers who have had or
will have a prior or subsequent interstate journey.
The only case in which section 204 would apply to a
local bus operation transporting passengers who have
made or will make a prior or subsequent journey
across a State line is one in which there is a
through ticketing arrangement under which the
passengers purchase a single ticket which is good for
both the local bus ride and the prior or subsequent
interstate journey by air, rail, or bus."
1999 WL 1002358 (DOL WAGE-HOUR) (January 22, 1999). Both the DOL
and the DOT agree that when a passenger is able to use a single
ticket for interstate and intrastate travel, the passenger
intends to travel interstate. The carriers, regardless of
whether they operate
exclusively intrastate, are an integral part of the "practical
continuity of movement" of the passengers across state lines. As
such, the carriers who participate in through-ticketing
arrangements are involved in interstate transportation.
In this case, ONE Bus participates in a typical through
ticketing arrangement because it accepts the New Jersey Transit
Interstate Bus Pass, which entitles to the passenger to bus
transportation in New Jersey and between New Jersey and New
York. The percentage of ONE Bus passengers who are using the New
Jersey Transit Interstate Bus Pass is irrelevant. "It is the
character of the activities rather than the proportion of either
the employee's time or of his activities that determines the
actual need for the [DOT's] power to establish reasonable
requirements with respect to qualifications, maximum hours of
service, safety of operation and equipment." Levinson, 330
U.S. at 674-75, 67 S.Ct. 931; accord Morris, 332 U.S. 422,
431-32, 68 S.Ct. 131, 92 L.Ed. 44 (1947); see also Thomas v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025-26 (10th
Cir. 1992). Therefore, even if ONE Bus drivers only transport a
very small number of passengers engaging in interstate
transportation. Morris, Levinson, and Capital Transit all
require the conclusion that those drivers are engaged in
Where the DOT and the DOL are in agreement on the
interpretation of the FLSA or the MCSA, the agencies'
interpretations are entitled to great deference. Here, the DOT,
the DOL, and the common law all indicate that where an employer
participates in a through-ticketing arrangement resulting in
interstate travel, that employer is engaged in interstate
transportation within the meaning of the FLSA and the MCSA.
Because the New Jersey Transit Interstate Bus Pass is a
through-ticketing arrangement resulting in interstate travel.
ONE Bus meets prong two of the exemption test.
The Secretary of Transportation has pre-emptive jurisdiction
over common carriers not only where it actually exercises its
authority, but also in cases where it has the potential to
exercises authority. "It is not necessary, as a condition
precedent, to find that the Commission has exercised, or should
exercise, such power by actually establishing qualification and
maximum hours of service with respect to loaders in general
. . . The existence of the power is enough." Levinson v.
Spector Motor Service, 330 U.S. at 678, 67 S.Ct. 931. ". . .
[I]t is the existence of that power  that Congress has made
the test as to whether or not s 7 of the [FLSA] is applicable to
these employees." Morris, 332 U.S. at 434, 68 S.Ct. 131; see
also Friedrich, 974 F.2d 409, 416 (3d Cir. 1992).
49 U.S.C. § 13501 provides that passenger motor carriers
operating in interstate commerce are covered by the DOT. It is
undisputed that ONE Bus is a motor carrier, and its acceptance
of the New Jersey Interstate Bus Pass is a sufficient basis for
this Court to find that ONE Bus operates in interstate
transportation and, therefore, under the jurisdiction of the
DOT. The third and final prong of the exemption test is
For the foregoing reasons Defendant's motion for summary
judgment is granted and Plaintiffs' motion for summary judgment
is denied. An appropriate Order will issue.