Opinion
IP 01-0206-C-T/K
January 4, 2002
Entry On Motion for Summary Judgment and Motion to Strike
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiff, Tony Harrison, sued Defendant, Superior Carpet Installers, Inc. ("SCI"), for wages allegedly due and owing and for breach of a collective bargaining agreement. He brings claims for unpaid wages under the Fair Labor Standards Act of 1938 ("FLSA") and the Indiana Wage Payment Statute. Defendant moves for summary judgment, and Plaintiff opposes the motion. The court rules as follows.
I. Summary Judgment Standard
Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial burden of proving the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the movant discharges this burden, then the nonmovant cannot rest on bare allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a genuine issue of material fact, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Id. at 255.
The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matushita, 475 U.S. at 586. A mere scintilla of evidence is insufficient to create a genuine issue for trial; "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. Summary judgment may be granted if the evidence is merely colorable or not significantly probative. Id. at 249-50.
Affidavits must be based on personal knowledge and set forth facts that would be admissible in evidence. Fed.R.Civ.P. 56(e); e.g., Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). Conclusory statements in affidavits are insufficient to create genuine issues. DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999) ("the nonmoving party is not entitled to rely on conclusory allegations, unsupported by the record") (citation omitted)); Drake, 134 F.3d at 887 (Rule 56 requires "affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted") (quotation omitted). Inferences and opinions must be substantiated by specific facts. Drake, 134 F.3d at 887 (citing Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988) ("Because Davis substantiates his allegations of a longstanding custom or policy solely on the basis of his one conclusory sentence in his affidavit, we cannot reasonably infer that such a custom did indeed exist without more.")).
These facts are not disputed. Additional facts may be set forth in the Discussion section as necessary. That section also will address various disputes about factual submissions proffered by Mr. Harrison.
SCI is an Indiana corporation located in Indianapolis, Indiana, and is in the business of installing carpet and other floor coverings for commercial clients throughout the State of Indiana. SCI currently employs twenty-eight bargaining-unit employees and seven non-union employees. The former are represented by the Indiana Regional Council of Carpenters, Central Region Area ("the Union"). At all relevant times, the terms and conditions of employment of the bargaining-unit employees were governed by a collective bargaining agreement between the Union and SCI, entitled "Floor Covering Agreement," in effect from October 1, 1998, through September 30, 2001.
Plaintiff, Tony Harrison, worked for SCI as a carpet layer, which is a bargaining-unit position. On August 1, 2000, Mr. Harrison filed a grievance with the Union alleging that SCI was violating certain provisions of the Floor Covering Agreement regarding payment of wages. His grievance alleges SCI violated Article III, Section I of the Agreement (no pay after leaving job site); Article III, Section II(c) and Section IV(b) (work outside of the established work day); Article VII, Section VIII (tools); Article VI, Section A, Section B, Section 2 (travel pay); Article V (high pay); and Article VII, Section II (reporting to the shop or work site). The Union met with Mr. Harrison to discuss the allegations in the grievance and then conducted an investigation into his grievance. Tim Thieme, the Union Business Agent who participated in that investigation, met with Thomas Ziegelbauer, SCI's president, and resolved the grievance to the satisfaction of both the Union and SCI. The resolution did not require SCI to pay any wages to Mr. Harrison.
Article III, Section 1 of the Floor Covering Agreement states that the normal work day for SCI employees shall be an eight hour day, and that "[e]mployees who are required to report to [SCI's] shop shall have an established starting time at the shop and their time shall continue until they pick up their tools at the job site." SCI employees keep track of their working time for purposes of being paid wages by writing their time on a time sheet kept at the shop on a daily basis, and employees are paid wages based upon the number of hours shown on their weekly time sheet. If they are not traveling to a work site thirty or more miles from the shop, SCI employees record their starting time each day on their time sheet as the designated time they are required to report to the shop. After reporting to the shop, SCI employees typically receive their work assignments for the day, load any necessary tools and materials into a company-provided van, and travel to the designated work site. SCI employees record their ending time each day on their time sheet as the time when they have stopped installing floor coverings and are prepared to leave the work site.
If they are traveling more than thirty miles from the shop, the employees record their starting time for the day as the time they arrive at the work site and they are compensated for travel time to the work site.
The Amended Complaint alleges that SCI failed to pay Mr. Harrison wages due and owing under the same articles and sections of the Floor Covering Agreement cited in his grievance. It alleges that SCI unlawfully breached its agreement to pay Mr. Harrison wages alleged under these various articles and sections. The Amended Complaint also alleges that Mr. Harrison was not paid overtime for the hours worked. It seeks unpaid wages, overtime pay, liquidated damages, costs, and attorney's fees for the SCI's alleged willful violation. The claims are brought under the Indiana Wage Payment Statute, Ind. Code §§ 22-2-5-1 to -5-3 and the FLSA, 29 U.S.C. § 201-219. SCI denies the claims.
The Amended Complaint also alleges that Mr. Harrison was wrongfully terminated, but he has withdrawn this claim. (See Pl.'s Resp. Def. Superior Carpet Installers Inc.'s Statement Material Facts No. 59; Pl.'s Resp. Def.'s Mot. Summ. J. at 10.)
III. Discussion
SCI contends that it should be granted summary judgment because Mr. Harrison's claims for unpaid wages are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), the claims are not properly before the court, and Mr. Harrison cannot prove a violation of the FLSA. Mr. Harrison opposes the motion.
A. Section 301 Preemption
SCI contends that Mr. Harrison's state law breach of contract claim, alleging violations of a collective bargaining agreement, is preempted by Section 301 of the LMRA, 29 U.S.C. § 185. Section 301 of the LMRA "authorizes federal courts to develop federal common law for the interpretation of collective bargaining agreements." In re Bluffton Casting Corp., 186 F.3d 857, 862 (7th Cir. 1999), overruled on other grounds by In re Bentz Metal Prods., 253 F.3d 283 (7th Cir. 2001) (en banc); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403-4 (1988). To ensure uniform interpretation, Section 301 requires the application of federal law to interpretation of such agreements. See, e.g., Lingle, 486 U.S. at 404. Thus, a claim for a breach of a collective bargaining agreement is preempted by Section 301, Bentz Metal Prods., 253 F.3d at 286, and a state law claim is preempted by Section 301 "if such application requires the interpretation of a collective-bargaining agreement." Lingle, 486 U.S. 413; Bentz Metal Prods., 253 F.3d at 285 ("We now hold, consistent with Lingle . . . that a state law claim is not preempted if it does not require interpretation of the CBA [collective bargaining agreement] even if it may require reference to the CBA.").
Section 301 provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a).
In Bentz Metal Products, the employee plaintiffs filed mechanics liens under Indiana state law seeking unpaid vacation pay owed under an applicable collective bargaining agreement. The parties agreed to the amount owed. The employee plaintiffs filed an adversary proceeding to determine the validity and priority of their liens. 253 F.3d at 285.
The Seventh Circuit concluded that a state law claim is not preempted as long as the state law does not interfere or conflict with federal law. Id. at 286. The court held that a claim based on the Indiana employees' wage lien statute is not preempted by Section 301. Id. at 286-88. The court explained: "If the entitlement to wages (or other employee pay) or the amount due were at issue, the CBA would control; almost certainly, interpretation of the agreement would be necessary and would be subject to the arbitration procedures in the contract. So as to that determination, preemption would apply." Id. at 289. Because the mechanic's lien was "a benefit provided to workers based on a state policy protecting workers," id., the court determined that it was "a separate claim, not dependent on interpretation of the agreement for its existence even though the amount of the pay is dependent on the CBA." Id.
Mr. Harrison argues that the Master Agreement, which he acknowledges contains a grievance/arbitration clause, does not apply to him. For support, he relies on Article IV of the Master Agreement, "Scope of the Agreement," which states: "This Agreement shall apply to all carpentry work as defined under Trade Autonomy except when covered by another Collective Bargaining Agreement . . . between this Council and individual employer or groups of employer's (sic)." Mr. Harrison contends that because he is covered by another collective bargaining agreement between the Union and SCI, namely the Floor Covering Agreement, the Master Agreement is inapplicable. He also relies on a statement in Mr. Thieme's affidavit that the Floor Covering Agreement was the only contract covering Mr. Harrison while employed with SCI.
Mr. Thieme's opinion about what collective bargaining agreements covered Mr. Harrison is a legal opinion and not controlling on this court. Further, Mr. Harrison offers a tortured interpretation of the Scope of Agreement provision of the Master Agreement. As SCI maintains, this provision is properly interpreted as meaning that all of the provisions of the Master Agreement apply unless the subject of a particular provision is covered by another collective bargaining agreement. For example, Articles XI and XII of the Master Agreement contain provisions regarding hours of work and payment of premium compensation for hours worked in excess of the standard work day, and Article III of the Floor Covering Agreement contains similar provisions. Article XV of the Master Agreement contains a provision regarding reporting pay, as does Article VII, Section 2 of the Floor Covering Agreement. Thus, pursuant to the Scope of the Agreement provision of the Master Agreement, the provisions in Article III and Article VII of the Floor Covering Agreement are applicable rather than those in the Master Agreement.
In addition, it is apparent that the parties intended that the Master Agreement cover SCI employees. At that time SCI and the Union entered into the Memorandum of Agreement, on June 28, 2000, whereby they adopted the Master Agreement, the Floor Covering Agreement applicable to SCI's bargaining-unit employees was in effect. If the Scope of the Agreement provision had the meaning urged by Mr. Harrison, then the Master Agreement would have been inapplicable to SCI employees from its inception, which would be an absurd result. Moreover, Mr. Harrison's interpretation of the Scope of the Agreement provision is contradicted by his own actions in filing with the Union a grievance alleging SCI failed to pay him wages. Therefore, the court finds that the Master Agreement applies to Mr. Harrison.
Mr. Harrison argues that even if the Master Agreement applies to him, the grievance/arbitration provision is inapplicable. Article XXIX of the Master Agreement containing a mandatory grievance and arbitration provision states in pertinent part:
"It is agreed that in the event of any disputes arising out of the interpretation or application of this Agreement, excluding questions of jurisdiction of work, the same shall be settled by means of the procedure set out herein." He maintains that his claims have no connection to the Master Agreement, but rather, arise under the FLSA's overtime protections. But some of his claims for wages do fall under the Master Agreement. The Amended Complaint specifically alleges that Mr. Harrison was covered by a collective bargaining agreement and that SCI failed to pay him wages pursuant to the collective bargaining agreement and breached its agreement to pay him wages under that agreement. The Master Agreement expressly provides that it applies to "all carpentry work," and Mr. Harrison performed "carpentry work" for SCI. The court finds that the grievance and arbitration provision of the Master Agreement is applicable to Mr. Harrison.
The provision establishes a three-step grievance procedure followed in the fourth step by referral to arbitration to a Board of Arbitration whose decision "shall be final and binding" upon SCI, the Union, and the grieving employee.
The court therefore concludes that Section 301 of the LMRA preempts Mr. Harrison's claim for wages arising from an alleged breach of the applicable collective bargaining agreement. In addition, the court finds that interpretation of the Floor Covering Agreement is necessary to determine both Mr. Harrison's entitlement to the wages he claims and the amount due him, if any. Therefore, the court concludes that his state law claim for unpaid wages made under the Indiana Wage Payment Statute should be treated as a Section 301 claim, or dismissed as pre-empted by Section 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985); Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495, 500-02 (7th Cir. 1996) (holding that claims for unpaid wages under Indiana Wage Payment Statute requiring interpretation of collective bargaining agreement were preempted by Section 301).
If treated as Section 301 claims, the claims are subject to exhaustion of remedies under the applicable collective bargaining agreement. See DelCostello v. Teamsters, 462 U.S. 151, 163 (1983); Clayton v. Int'l Union, 451 U.S. 679, 681 (1981); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). Before an employee may obtain judicial review of the grievance process, he must show that the union has breached its duty of fair representation. See DelCostello, 462 U.S. at 164-65; Vaca v. Sipes, 386 U.S. 171, 186 (1967); Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1178 (7th Cir. 1987).
The Master Agreement contains a mandatory grievance and arbitration procedure for resolution of disputes under the agreement. Mr. Harrison followed that procedure and his grievance was resolved. In order to challenge the conclusion of the grievance proceedings in this court, Mr. Harrison must establish a breach of the Union's duty of fair representation.
The Amended Complaint neither names the Union as a party nor alleges a breach of its duty of fair representation. Therefore, Mr. Harrison cannot maintain his claim for a breach of the collective bargaining agreement and state law claim for wages, and SCI is entitled to summary judgment on those claims.
Mr. Harrison maintains that even if the grievance and arbitration provisions of the Master Agreement are applicable, his claims arise under the FLSA's overtime protections which cannot be contracted away. He is correct that his claim for overtime pay under the FLSA is not subject to grievance and arbitration.
Barrentine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 736-37, 745 (1981), holds that an employee may bring a federal action for payment of wages due under the FLSA independent of any rights under an applicable collective bargaining agreement.
The Supreme Court said: "the FLSA rights petitioners seek to assert in this action are independent of the collective-bargaining process. They devolve on petitioners as individual workers, not as members of a collective organization. . . . Congress intended to give individual employees the right to bring their . . . claims under the FLSA in court. . . ." Id. at 745; see also Howard v. City of Springfield, Ill., No. 00-1834, 2001 WL 1579905, at *1 (7th Cir. Dec. 12, 2001) (recognizing distinction between claims under collective bargaining agreement and claims under FLSA). Thus, if a claim arises from statutory rights such as those protected by the FLSA, the employee need not exhaust remedies under a collective bargaining agreement. Barrentine, 450 U.S. at 737. And, as the Ninth Circuit clearly said: "exhaustion of remedies provided for in a collective bargaining agreement is not required even where a claim based on statutory rights also presents a claim under the agreement. Collins v. Lobdell, 188 F.3d 1124, 1127 (9th Cir. 1999), cert. denied sub nom. Collins v. Spokane Valley Fire Prot. Dist. No. 1, 529 U.S. 1107 (2000).
SCI argues that Barrentine is inapplicable because Mr. Harrison asserts rights under the collective bargaining agreement. The Amended Complaint not only asserts rights under the collective bargaining agreement but also asserts Mr. Harrison's rights protected by the FLSA. Thus, contrary to SCI's limited reading of the Amended Complaint, the Amended Complaint does make a claim under the FLSA, and Barrentine applies. Consequently, exhaustion of the claim for overtime pay under the FLSA is not required. So the court must decide whether there is a genuine issue of material fact necessitating trial of the claim under the FLSA.
B. The FLSA Claim for Overtime Pay
Mr. Harrison brings a claim for overtime pay under the FLSA. (Pl.'s Resp. Def.'s Mot. Summ. J. at 5 ("[Plaintiff's] claims arise under the FLSA's overtime protections."))
Plaintiff does not appear to assert claims for "night pay," "tools," "travel pay," and "reporting pay" under the FLSA, and if he does, he has advanced no authority which would support a claim under the FLSA for these things. (See Pl.'s Resp. at 10-11.) It is also noted that Plaintiff states he withdraws his claim for "high pay". (Id.)
He claims SCI violated the FLSA by requiring its employees to report back to the shop at the end of the work day. SCI contends that it is entitled to summary judgment on the FLSA claim because Mr. Harrison cannot prove a violation of the FLSA.
SCI contends that it did not violate the FLSA because it did not require its employees to report back to the shop at the work day's end. Mr. Harrison, however, maintains that SCI had an unwritten policy as well as written requirements that required employees to return to the shop at the end of the work day. Having considered the parties' evidentiary submissions, the court finds that Mr. Harrison has not raised a triable issue of fact.
Mr. Harrison offers his own deposition testimony as well as the affidavits of Carl Nicholson, Bruce Pillar, Lenny Collins, John Carter, and Richard Browder, all former SCI employees, to establish that SCI had a policy requiring employees to return to the shop at the end of the day. Mr. Harrison also argues that this testimony is consistent with the written shop rules, namely the Floor Covering Agreement, Article VII, Section 1 which states that "No Employee shall be required or permitted to use a personally owned automobile for the purpose of moving, transporting, or delivering material, merchandise or equipment for the Employer."
The court takes judicial notice that Mr. Browder has his own case against SCI in this court, Cause Number IP01-C-1164-T/K, raising some of the same claims asserted by Mr. Harrison.
Mr. Harrison's evidence fails to create a triable issue as to whether SCI had a policy requiring employees to return to the shop at the day's end. The portion of Mr. Harrison's deposition which is cited establishes only that he raised concerns with Mr. Ziegelbauer and Wayne Fullen, SCI's President until 1999, over how wages were paid (or not paid) for travel from job sites within thirty miles of the shop back to the shop at the end of the work day, and Mr. Ziegelbauer responded that there would be no change. (Harrison Dep. at 150-52, 157.) The cited portions of the former employees' affidavits contain conclusory assertions unsubstantiated by any facts and lacking in foundation. (Pillar Aff. ¶¶ 4-6 (stating that employees were to drive to the work sites in the company vehicle and return to the shop after clocking out); Browder Aff. ¶ 10 (stating it was SCI's policy for employees to return to the shop at the end of the work day); Collins Aff. ¶ 10 (same); Nicholson Aff. ¶ 10 (same); Carter Aff. ¶ 6 (stating that he was required to clock out at the job site and travel back to the shop), ¶ 9 (stating that he was not allowed to drive his own vehicle from the work site to his home)). The former employees do not state how they became aware of the alleged policy or requirement or how long it had been in place, and they do not identify who or what specific written policy required them to return to the shop at the end of the day. They do not give any examples of instances in which the failure to follow the alleged policy resulted in discipline or reprimand. Their bare, unsubstantiated assertions do not create genuine issues for trial. See, e.g., Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (Rule 56 requires "affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted") (quotation omitted); Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter").
Mr. Collins does state that when he left a work site and did not return to the shop, he was told by Wayne Fullen that he was to return to the shop. (Collins Aff. ¶ 14.) Even if this is considered a reprimand, Mr. Collins fails to indicate when this occurred and Mr. Fullen was SCI's President only until 1999 when he retired (Ziegelbauer Aff. ¶ 10), so there is no basis for determining that it happened within the limitations period, which is two years unless the violation was willful. 29 U.S.C. § 255(a); see also Howard v. City of Springfield, Ill., No. 00-1834, ___ F.3d ___, 2001 WL 1579905, at *1 (7th Cir. Dec. 12, 2001). Mr. Harrison has not presented any evidence sufficient to raise an inference that the alleged FLSA violations were willful, so the two-year limitations period applies.
Furthermore, both Mr. Nicholson and Mr. Carter worked for SCI only before the limitations period, even assuming a three-year limitations period (Nicholson Aff. ¶ 3 (employed between 1994 and 1997); Carter Aff. ¶ 3 (employed between 1977 and 1980)), and their affidavits do not demonstrate how they would have personal knowledge of SCI's policies and practices during the relevant time.
SCI, in contrast, offers the affidavit of its President, Mr. Ziegelbauer, stating that all SCI employees may travel directly from a work site to their home, or elsewhere, at the end of a work shift (Ziegelbauer Aff. ¶ 29) and that no SCI employee has ever been disciplined or reprimanded in any way for traveling directly home at the end of a shift. (Id. ¶ 32.) SCI also offers affidavits from twenty-six of its current bargaining-unit employees stating that SCI has no policy, work rule, or practice requiring employees to return to SCI's shop at the end of a work shift. (See, e.g., Chuck Austin Aff. ¶ 6; Matt Austin Aff. ¶ 6; Gary Golay Aff. ¶ 7.) Twenty-five of the twenty-six further state that they have, on occasion, traveled directly to their homes from a work site without returning to SCI at the end of the shift and were never disciplined or reprimanded. (See, e.g., Chuck Austin Aff. ¶¶ 8-9; Matt Austin Aff. ¶¶ 8-9; Gary Golay Aff. ¶¶ 9-10.) SCI has also presented the affidavit of Timothy Thieme, a former SCI bargaining-unit employee and the Union Business Agent who investigated Mr. Harrison's grievance, stating that SCI employees are not required to return to SCI's office and warehouse but may travel directly elsewhere at the end of a work shift. (Thieme Aff. ¶ 14.) Moreover, Mr. Harrison himself testified that he on occasion has left the work site at the end of a shift and not returned to the shop and was not disciplined for doing so. (Harrison Dep. at 84-85.) This evidence establishes that SCI did not have a policy or practice requiring employees to return to the shop at the day's end.
The remaining employee has stated that he is aware of other employees traveling directly home from the work site. (Jeffery Bohannon Aff. ¶ 8.)
He did add that he "probably" asked for permission to travel to somewhere other than back to the shop at the end of a shift, but he could not recall asking either Mr. Ziegelbauer or Mr. Fullen for such permission. (Id. at 86.)
As for the cited provision of the Floor Covering Agreement, that provision covers materials, merchandise, and equipment. The provision says nothing about using a personally-owned vehicle for transporting employees. In addition, Mr. Ziegelbauer's testimony that he never told an employee that the company van had to be returned to the shop at the end of the day and that he was never present when Wayne Fullen, SCI's former President, gave an employee such a directive (Ziegelbauer Dep. at 41) remains uncontradicted. Thus, there is no evidence which would create a reasonable inference that the employees had to return to the shop at day's end in order to return the company vehicles that were used to transport SCI's materials and equipment. Therefore, the cited provision of the Floor Covering Agreement does not support Mr. Harrison's claim that SCI had a written rule or practice requiring employees to return to the shop at the end of the work day.
SCI maintains that Tom Ziegelbauer, SCI's President, testified that SCI does not enforce any policy prohibiting employees from using personal vehicles to transport materials to the work site, citing page 18 of Mr. Ziegelbauer's deposition testimony. That page, however, was not included in the submissions and the testimony is therefore not properly before the court for consideration.
Certain of the affidavits submitted by Mr. Harrison contain statements that the affiants were required to dump or unload the truck at the shop at the end of the work day (Browder Aff. ¶¶ 7, 13; Collins Aff. ¶¶ 7, 13; Nicholson Aff. ¶¶ 7, 13; Carter Aff. ¶ 7), but these statements, like the statements that SCI had a policy requiring employees to return to the shop at the end of the work day, are conclusory and lacking of any substantiating facts. They therefore fail to raise a triable issue as to whether SCI employees were required to return the company-provided vehicle to the shop at the end of the work day. See, e.g., Drake, 134 F.3d at 887.
Mr. Harrison claims that since employees had to report to the shop at the beginning of the day, they had to travel back to the shop from the work site at the end of the day, presumably to pick up their own vehicles. The evidence establishes that SCI has no company policy, rule or practice requiring employees to ride in the company-provided vehicles to or from any job site, and company vehicles are provided to employees as a convenience so they are not required to use their own personal vehicles for transportation to and from job sites. Thus, the mere fact that the employees had to report to the shop at the start of the day does not compel the conclusion that they had to travel back to the shop at the end of the day.
Mr. Pillar states that SCI's installers were to clock in and "were then to drive to the work site in the company vehicle" (Pillar Aff. ¶¶ 3, 4), and were to clock out at the job site and "then drive back to the shop in the company vehicle. . . ." (Id. at 6.) As with the other assertions in his affidavit, these assertions are conclusory and lacking in foundation. They therefore do not raise a genuine issue as to whether employees were required to travel to and from work sites in company owned vehicles. See, e.g., Drake, 134 F.3d at 887.
Mr. Harrison also argues that employees had to return to the shop to fill out their time cards and work reports which were kept at the shop, but he fails to present sufficient evidence to create a triable issue as to whether they were required to do so at the end of each work day. He cites to statements in the affidavits of Richard Browder, Lenny Collins and Carl Nicholson to support his assertion that work reports were required to be filled out daily (Browder Aff. ¶ 12; Collins Aff. ¶ 12; Nicholson Aff. ¶ 12), but these statements are conclusory and lacking in foundation. The affiants do not state how they became aware of such a requirement, how long it had been in place, and they do not identify who or what written policy required them to fill out work reports daily. They do not give any examples of instances in which the alleged requirement was enforced. These same deficiencies apply to the statements in the affidavits of Browder, Collins and Nicholson that they were required to fill out their time cards daily at the shop at the work day's end (Browder Aff. ¶¶ 9, 11; Collins Aff. ¶¶ 9, 11; Nicholson ¶¶ 9, 11.) In contrast, Mr. Ziegelbauer has testified, without contradiction, that he never told any employee that work reports or time sheets had to be submitted at the end of the work day and that he was never present when Mr. Fullen so instructed any employee. (Ziegelbauer Dep. at 40-41.) In the absence of any substantiating facts, the conclusory assertions in the affidavits relied upon by Mr. Harrison fail to raise a genuine issue for trial. See, e.g., Davis v. City of Chicago, Ill., 841 F.2d 186, 189 (7th Cir. 1988) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.").
In addition, as previously noted, Nicholson did not work for SCI within the relevant time period and Mr. Harrison has not shown that Nicholson has personal knowledge of SCI's policies during the limitations period. Even assuming that work reports had to be filled out at the shop at the end of the work day, Mr. Harrison has offered no evidence that he ever was required to fill out a work report at the shop at the end of the work day. Both Browder and Collins state that if they were the lead man on a job, they were required to fill out a work report at the shop at the end of the work day. (Browder Aff. ¶ 12; Collins Aff. ¶ 12.) Mr. Harrison does not assert that he was ever the lead man on a job, nor does he point to any evidence to establish that fact, and it is noted that SCI employees typically worked in crews of two to five employees at a job site. (Ziegelbauer Aff. ¶ 27.)
The court finds that Mr. Harrison has not presented sufficient evidence to create a jury question as to whether SCI had a policy or practice requiring its employees to return to the shop at the end of the work day. Therefore, SCI should be granted summary judgment on the FLSA claim.
IV. Conclusion
Defendant's motion for summary judgment is GRANTED as follows: Plaintiff's claims arising from an alleged breach of the collective bargaining agreement and his claims under the Indiana Wage Payment Statute should be DISMISSED and summary judgment should be GRANTED Defendant on Plaintiff's claims under the Fair Labor Standards Act. Defendant's motion to strike is DENIED AS MOOT. Judgment shall be entered accordingly.