Summary
In Savage, for example, Judge Swain found that the plaintiff's duties primarily related to the general operations of the defendant labor union's business where the plaintiff was a "staff organizer" for the defendant, her primary duty "was to represent and promote her employer" and "its goals to the community and customers," and her "day-to-day activities focused on increasing [the union's] membership and, through that, its bargaining strength."
Summary of this case from Krupinski v. Laborers E. Region Org. FundOpinion
No. 05 Civ. 10812 (LTS) (DCF).
April 17, 2008
BUDGE HEIPT PLLC, By: Edwin S. Budge, Esq., Erik J. Heipt, Esq., Seattle, WA, LAW OFFICES OF GREGORY S. LISI, P.C., By: Gregory Scot Lisi, Esq., Rockville Centre, NY, NECE ALLEN, LLP, By: James William Allen, Esq., Augusta, GA, NECE ALLEN, By: John Gerhard Nece, Esq., Seattle, WA, Attorneys for Plaintiff.
LEVY RATNER, P.C., By: Jennifer Jenkins Middleton, Esq., New York, NY, SCHWERIN CAMPBELL BARNARD LLP, By: Kathleen Phair Barnard, Esq., Seattle, WA, Attorneys for Defendants.
OPINION AND ORDER
In this collective action for overtime pay under the Fair Labor Standards Act ("FLSA" or "the Act"), Defendant UNITE HERE, ("Defendant" or "UNITE"), an international labor union, moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment against the one remaining plaintiff in the action, Trenette Savage ("Plaintiff" or "Savage"). Plaintiff, who is employed as an organizer for UNITE, has cross-moved for summary judgment on her claims. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. The Court has reviewed thoroughly and considered carefully all of the parties' submissions and, for the reasons stated below, grants Defendant's motion for summary judgment on the grounds that Plaintiff, as an exempt administrative employee under the FLSA, is not entitled to overtime pay.
BACKGROUND
Procedural Background; Nature of the Claim
This action, in which the plaintiffs allege that UNITE improperly classified its organizers as exempt under the FLSA, was originally brought in the Western District of Washington by two plaintiffs who are no longer parties to the case. (See Docket Entry No. 1.) Savage filed a consent to join the action on July 21, 2005. (Id.) Defendant successfully challenged jurisdiction in Washington and plaintiffs eventually stipulated to transfer the case to this district. The case was certified as a collective action and seven people opted in. (Docket Entry Nos. 32, 34, 36, 37, 40, 41, 43, 44.) In the months following discovery, the claims of all the other plaintiffs were withdrawn or dismissed. (Docket Entry Nos. 38, 52, 63, 64, 73, 75, 77, 82.)
Savage seeks payment for overtime hours from the period beginning two years before she filed her consent to join the action. (Savage Dep. P. 201: 5-9.); see also, Moran v. GTL Const., LLC, No. 06 Civ. 168, 2007 WL 2142343 (S.D.N.Y. July 24, 2007) ("[a]n employee normally has two years after a claim for unpaid overtime compensation accrues to commence an action"). Defendant seeks summary judgment in its favor on the grounds that Plaintiff is exempt as a "bona fide administrative employee" under the FLSA and that Plaintiff falls within the FLSA's outside salesman exemption. Plaintiff opposes Defendant's motion and cross-moves for partial summary judgment in her favor as to the non-applicability of the cited exemptions. Because the Court grants Defendant's motion for summary judgment in Defendant's favor based on Plaintiff's position as an exempt administrative employee, the Court need not reach the parties' argument regarding Plaintiff's status as an outside salesman.
Undisputed Material Facts
The undisputed facts as stated in the Defendant's 56.1 statement and admitted by the Plaintiff for the purposes of this motion in her response to Defendant's 56.1 statement include the following. UNITE is an international labor union representing over 450,000 members working in the hotel, laundry, needletrades, food distribution and other low-wage industries in the United States and Canada. (Def.'s 56.1 ¶ 1; Pl.'s Res. to D's 56.1 (admitting ¶¶ 1-5 of Def.'s 56.1).) UNITE's mission is to obtain improvements in employment conditions and in social, political and human rights for union members and for all workers. (Def.'s 56.1 ¶ 2; Pl.'s Res. to D's 56.1 (admitting ¶¶ 1-5 of Def.'s 56.1).) UNITE attempts to obtain improvements by negotiating and enforcing collective bargaining agreements for its members, and by organizing unrepresented workers and obtaining recognition of UNITE as the employees' representative. (Def.'s 56.1 ¶¶ 3-4; Pl.'s Res. to D's 56.1 (admitting ¶¶ 1-5 of Def.'s 56.1).) By organizing unrepresented workers and establishing itself as the union for those previously unrepresented workers, UNITE increases its overall bargaining strength. (Def.'s 56.1 ¶ 4; Pl.'s Res. to D's 56.1 (admitting ¶¶ 1-5 of Def.'s 56.1).) UNITE employs organizers to reach out to unrepresented workers and lead those workers through the process of organizing, becoming UNITE members and winning collective bargaining rights. (Def.'s 56.1 ¶ 5; Pl.'s Res. to D's 56.1 (admitting ¶¶ 1-5 of Def.'s 56.1).)
Plaintiff was hired by Defendant as an organizer in April 2000, and, although she is currently on leave, has remained on staff since that time. (Def.'s 56.1 ¶ 6; Pl.'s Res. to D's 56.1 (admitting ¶¶ 6-11 of Def.'s 56.1).) Plaintiff was hired at a weekly salary of $550, which has risen over the period of her employment to its current rate of $882.74. (Def.'s 56.1 ¶¶ 8-9; Pl.'s Res. to D's 56.1 (admitting ¶¶ 6-11 of Def.'s 56.1).) Plaintiff has always been paid a fixed, weekly salary that does not vary according to the amount of work performed in any given week. (Def.'s 56.1 ¶ 10; Pl.'s Res. to D's 56.1 (admitting ¶¶ 6-11 of Def.'s 56.1).) Under the collective bargaining agreement between Defendant and the Plaintiff's union, UNITE provides compensatory time off when organizers work weekends and holidays, but does not pay organizers overtime. (Def.'s 56.1 ¶¶ 11-12; Pl.'s Res. to D's 56.1 (admitting ¶¶ 6-11 of Def.'s 56.1 and admitting ¶ 12 with respect to the terms of the collective bargaining agreement).)
The UNITE job description identifies the duties of a union organizer as building one-on-one relationships with workers, motivating workers to take action, identifying and developing leaders, assessing workers' support and planning accordingly, gathering information and doing local research to evaluate possible campaigns, managing information and maintaining records, developing campaign messages and writing literature, conducting NLRB proceedings, working on a team and possibly directing the work of volunteer organizers, apprentices or staff and possibly having responsibility for many or all aspects of running a campaign, with supervision. (Def.'s 56.1 ¶ 14; Pl.'s Res. to D's 56.1 (admitting ¶ 14 of Def.'s 56.1).)
Plaintiff's own deposition testimony provides the following undisputed facts regarding her role as a union organizer. The UNITE job description accurately describes the job responsibilities of a union organizer. (Savage Dep. 131:22-132:2.) Staff organizers, as opposed to volunteer organizers, are "responsible for the campaign in general, getting the meetings together, making statements for the workers, making sure that they're following through with some of the tasks that you put before them, . . . stuff like that." (Savage Dep. 47:20-24.) Part of Plaintiff's job was to plan how to develop union support in her assigned plant. (Savage Dep. 149:16-19.) Plaintiff also monitored the overall progress of the campaign (Savage Dep. 48:4-7), and motivated workers when the employers launched anti-union campaigns (Savage Dep. 51:11 53:10). Plaintiff would identify potential legal and safety violations in conversations with workers, write up a statement of the possible violations, and refer the incidents to union lawyers. (Savage Dep. 35:8-12; 36:11-19; 37:9-20; 73:3-15.) Plaintiff also collected signatures on union membership cards (Savage Dep. 80:3-81:25) and did some leafleting (Savage Dep. 58:5-12).
Although Plaintiff's deposition testimony focused on her work at the Detroit and Rochester plants, she testified that she would "basically do the same thing if I was on another campaign," specifying that only the number of hours spent working on the different campaigns varied. (Savage Dep. 201:10-22.)
Plaintiff informed her supervisor when she thought house calls were necessary because union members were not attending meetings. (Savage Dep. 18:1-4.) Plaintiff was responsible for deciding when to visit workers (Savage Dep. 105:17-106:7), and she usually conducted these calls on her own (Savage Dep. 18:20-12). During house calls, Plaintiff would rate the worker's strength of union support and try to discover what was happening in the plant. (Savage Dep. 96: 3-9.) Plaintiff admitted that she tailored her approach in evaluating and recruiting workers to each individual worker, (Savage Dep. 96:11-97:24), and that she does not use any manuals in her work, (Savage Dep. 110:4-5). According to Plaintiff, getting "in the door" on a house call requires "think[ing] fast on your feet" because once a worker closes a door on an organizer the worker may not open it again. (Savage Dep. 142:10-23.) Being successful at house calling turns on "people skills." (Savage Dep. 143:1-15.) Plaintiff identified her ability to develop a workers' support for the union as one of her strengths. (Savage Dep. 194:15-19.) Plaintiff makes her own decisions about who to visit and recruit to help in the campaign: "[t]hat's why I don't listen to what other people say about other people. Usually I find out for myself and make my own judgment as to what I think." (Savage Dep. 62:10-13.) At some locations, Plaintiff had to attempt to contact workers without alerting the company to her presence. (Savage Dep. 75:19-76:10 (At the Rochester plant, Plaintiff tried to determine, without alerting the company, the number of workers on each shift, the number of shifts and the timing of the shifts).)
Plaintiff also testified that she identified possible leaders and determined whether identified individuals had the capacity to be leaders. According to Plaintiff, she would recognize potential leaders by their actions at the plant and give them small tasks to test whether potential leaders could follow through. (Savage Dep. 19:8-13.) If they could, Plaintiff would give them more substantial tasks as the project continued. (Savage Dep. 19:8-13.) After identifying one potential leader based on his written statements, which she passed along to her supervisor, Plaintiff encouraged and helped to prepare that worker to speak about the Cintas campaign at a Chicago convention. (Savage Dep. 128:3-129:16.) During the Detroit campaign, Plaintiff formed a "justice committee" to allow more workers the opportunity to assist in the process of obtaining a successful contract. (Savage Dep. 61:19-62:23.) If Plaintiff's supervisor was on location and wanted a different person as a leader, Plaintiff and her supervisor would determine which role each person would play. (Savage Dep. 49:18-50: 3.)
Organizers get the community, as well as the workers, involved in the campaign. (Savage Dep. 200:6-13.) Plaintiff spoke at community functions as a UNITE representative. (Savage Dep. 66:17-25.) She used her community contacts to gain access to a local church for campaign meetings. (Savage Dep. 67:23-68:14.) On the Detroit campaign, Plaintiff contacted customers of the workers' employer to alert them to the organizing attempts. (Savage Dep. 106:8-25.)
The frequency with which a union organizer contacts her supervisor depends on the specific supervisor with whom the organizer is working. (Savage Dep. 41:33-34.) Supervisors were not consistently physically present at Plaintiff's location. (Savage Dep. 104:3-5.) Supervisors usually provided organizers with a message to convey to workers, which changed depending on the stage of the campaign. (Savage Dep. 102:10-16.) When the message did not appear to be working, Plaintiff would "[c]all [her] supervisor, talk with her, let her know exactly what's going on, what happened and the reason [Plaintiff] thinks it's not working and then [Plaintiff and her supervisor] try to see if [they] can come up with a different strategy or a different message to give them." (Savage Dep. 102:10-16.)
Plaintiff made recommendations to, and worked with, her supervisors regarding the future of the UNITE campaigns. For example, upon returning to the Rochester plant after an entire shift of workers had been fired, Plaintiff and her supervisor worked together to determine that the campaign could not move forward at the Rochester plant. (Savage Dep. 90:15-25, 95:3-21;see also Pl.'s Res. to Def.'s 56.1 (agreeing that union organizers are part of the decision making process as to whether there is enough interest among workers at a particular plant to make a campaign viable).) Additionally, although Plaintiff did not choose the specific date for a blitz — a three-day event during which UNITE tries to reach as many workers as possible before the workers return to work — she was responsible for telling her supervisors when the campaign was ready for a blitz. (Savage Dep. 77:17-78:3; 78:24-79:16.) Plaintiff worked with her supervisors to create agendas for worker meetings, but ran the meetings herself. (Savage Dep. 110:6-111:7.) Plaintiff also testified that she usually decided when to call the meetings. (Savage Dep. 48:12-14.)
DISCUSSION
Summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure is to be granted in favor of the moving party when "the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issue of material fact exists.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). As the Second Circuit has explained, it is not enough for the party opposing summary judgment to show that "`some metaphysical doubt as to the material facts'" exists. Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party must proffer specific facts showing the existence of a genuine issue for trial. Id. "[M]ere conclusory allegations, speculation or conjecture," will not provide a sufficient basis for a non-moving party to resist summary judgment. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
When cross-motions for summary judgment are filed, "the standard is the same as that for individual motions for summary judgment." Natural Res. Def. Council v. Evans, 254 F. Supp. 2d 434, 438 (S.D.N.Y. 2003). "The court must consider each motion independently of the other and, when evaluating each, the court must consider the facts in the light most favorable to the non-moving party." Id. (citing Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001)).
The Court also recognizes that "exemptions to the FLSA are narrowly construed against the employers seeking to assert them" and that the employer has the burden of showing that an employee is exempt. Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 222 (2d Cir. 2006) (internal quotations and citation omitted); Bowrin v. Catholic Guardian Soc., 417 F. Supp. 2d 449, 457 (S.D.N.Y. 2006) ("an employer who claims an exemption under the Act has the burden of showing that it applies"). Defendant has satisfied its burden in this case.
The Administrative Employee Exemption
An employee who works in a "bona fide executive, administrative or professional capacity" is exempt from the overtime requirements of the FLSA. 29 U.S.C. § 213(a)(1). The FLSA grants the Secretary of Labor "broad authority to `defin[e] and delimi[t]' the scope of the exemption for executive, administrative, and professional employees," Auer v. Robbins, 519 U.S. 452, 456 (1997), and "the Secretary's regulations have the force of law," Freeman v. National Broadcasting Co., 80 F.3d 78, 82 (2d Cir. 1996). According to the regulations promulgated by the Secretary, an "employee employed in a bona fide administrative capacity" is defined as an employee who is "(1) [c]ompensated on a salary or fee basis at a rate of not less than $455 per week . . . exclusive of board, lodging or other facilities; (2) [w]hose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) [w]hose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200. The parties do not dispute that Plaintiff meets the salary basis requirement. Plaintiff argues, however, that her primary duty was not "office or non-manual work," that the work she performed was not "directly related" to management or general business operations and that she did not exercise discretion and independent judgment as to matters of significance.
Although the regulations were revised effective August 1, 2004, during the period for which Plaintiff claims unpaid overtime, the parties do not argue that the revision was intended to make a substantive change to the regulations or that the Court should apply the pre-revision regulations. (See Pl.'s Opp. at n. 2; Def.'s Mem. at n. 1.); see also Roe-Midgett v. CC Services, Inc., 512 F.3d 865, 870 (7th Cir. 2008) ("[T]he 2004 regulations did not substantively alter the old short test.") Thus, the Court will apply the post-2004 regulations in its analysis.
Office or Non-Manual Work
Plaintiff argues that her primary duty did not involve "office or non-manual work" and, thus, she cannot fall within the "administrative employee exemption." (Pl.'s Opp. at 9.) "`[P]rimary duty' means the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a). The Court's evaluation of the primary duty must be "based on an examination of the totality of the facts involved in the employment situation." Moran v. GTL Const., LLC, 2007 WL 2142343 (S.D.N.Y. July 24, 2007).
Plaintiff's testimony clearly establishes that her primary duty for UNITE entailed fieldwork for the union and Defendant concedes that Plaintiff's work was not "office" work. (Def. Reply at 17.) However, fieldwork is not necessarily "manual" work. According to the regulations, the exemption is not intended to apply to those "who perform work involving repetitive operations with their hands, physical skill and energy." 29 C.F.R. § 541.3(a). Examples of employees who are not exempt based on the manual nature of their labor include "non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers." Id. Plaintiff's work is of a very different type than the work that the regulations characterize as "manual" in nature.
Plaintiff's deposition testimony establishes that her day-to-day activities as an organizer centered on her ability to communicate with, recruit and motivate workers. She conducted house calls and spoke to workers at the plant gate. Plaintiff convinced workers to organize and choose UNITE as their representative. Plaintiff motivated already-organized workers in anticipation of contract negotiations. Plaintiff recognized and helped nurture leaders among the workers. Plaintiff motivated workers in the face of anti-union campaigns, conducted meetings and solicited community support for the workers and the organizing campaign. Plaintiff identified possible legal and health violations and referred them to the relevant union personnel. Plaintiff's success depended not on her manual dexterity or physical talents, but on her interpersonal skills, organizational abilities and strategic decision making ability.
Although Plaintiff did do limited leafleting work at the Westland and Macomb plants (Savage Dep. 58:5-18), she only assisted at those plants as needed, and her main role remained the Detroit plant organizing campaign. (Savage Dep. 58:17-18.) Neither the limited leafleting Plaintiff performed, nor Plaintiff's responsibility for collecting union cards render her ineligible under the exemption, as both tasks were related to her primary duty of organizing workers. "[A]n exempt employee can perform some manual work without losing exempt status." Schaefer v. Indiana Michigan Power Co., 358 F.3d 394, 401 (6th Cir. 2004). Consistent with an interpretation of "non-manual work" that includes work performed outside the office, courts have found that employees working outside of an office or in the field can be exempt "administrative" employees. See, e.g., Ferrell v. Gwinnett County Bd. of Ed., 481 F. Supp. 2d 1338 (school police officers' work was primarily "non-manual" even though a substantial portion of their work was performed outside the office — their work consisted mostly of interacting with school personnel, answering questions, writing reports, testifying at hearings, conducting investigations, surveying school ground and patrolling hallways); see also Roe-Midgett v. CC Services, Inc., 512 F.3d 865 (7th Cir. 2008) (claims adjusters working in the field are exempt administrative employees); Webster v. Public School Employees of Washington, Inc., 247 F.3d 910 (9th Cir. 2001) (labor union field representative who negotiated collective bargaining agreements and handled grievances was an exempt administrative employee); Cote v. Burroughs Wellcome Co., 558 F. Supp. 883 (E.D. Pa. 1982) (employee employed by a manufacturer of pharmaceutical products as a professional representative or detail person was an exempt administrative employee).
Defendant has successfully established, through Plaintiff's own testimony, that there is no genuine issue of fact as to whether Plaintiff's primary duty involved non-manual work.
Work "Directly Related" to Management or General Business Operations
To satisfy the requirement that an employee's work is directly related to the employer's management or general business operations, "an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment." 29 C.F.R. § 541.201 (emphasis added). However, courts have recognized that the administration/production dichotomy is merely illustrative — unless the work falls squarely on the production side — and may be of limited assistance outside the manufacturing context. See, e.g., Edwards v. Audubon Insurance Group. Inc., No. 3:02-CV-1618, 2004 WL 3119911 (S.D. Miss. Aug. 31 2004) ("The administrative-production dichotomy is not a rule of law."); Robinson-Smith v. Government Employees Ins. Co., 323 F. Supp. 2d 12, 19 (D.D.C. 2004) (declining to "analyze the current situation under an outmoded line of reasoning"); Roe-Midgett v. CC Services, Inc., 512 F.3d 865, 872 (7th Cir. 2008) (dichotomy is "only useful by analogy in the modern service-industry context"); see also Final Rule Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Federal Register 22122, 22141 (Apr. 23, 2004), available at 2004 WL 865626 ("The Department's view that the `production versus staff dichotomy has always been illustrative — but not dispositive — of exempt status is supported by federal case law.").
In a case involving a labor union field representative who negotiated collective bargaining agreements and handled grievances, the Ninth Circuit explained that the "purpose of the dichotomy is to clarify the meaning of `work directly related to the management policies or general business operations,' not to frustrate the purpose and spirit of the entire exemption." See Webster v. Public School Employees of Washington, Inc., 247 F.3d 910, 916 (9th Cir. 2001). The Ninth Circuit recognized in Webster that, under a rigid application of the dichotomy that would characterize the negotiation of the agreements as the bargaining units' "production," any work "including that of a president or CEO — for a legal entity that addresses primarily management or administrative concerns, such as a corporate holding company, would be production. This would defeat the purpose of the administrative exemption." Id.
The Second Circuit has stated that district courts may continue to use the production worker analogy if courts find application of the administrative/production dichotomy useful. Reich v. New York, 3 F.3d 581 (2d Cir. 1993), overruled by implication on other grounds by Seminole Tribe v. Florida, 517 U.S. 44 (1996). The Court does not find the dichotomy useful in this case, and will not strain its application to fit it to this set of facts. Instead, the Court focuses on whether Plaintiff "perform[ed] work directly related to assisting with the running or servicing" of UNITE's business. Plaintiff's deposition testimony sufficiently establishes that she did such work and the Court need not rely on the administration/production dichotomy to determine the nature of Plaintiff's duties.
Plaintiff makes much of her "bottom of the ladder" position as a mere "rank-and-file" UNITE employee. In contrast, Defendant focuses on Plaintiff's role as a "lead" organizer on the Detroit and Rochester campaigns. It is neither Plaintiff's position as one of many UNITE organizers working in the field, nor Plaintiff's job title, but the nature of her day-to-day activities that is determinative. See Miller v. Farmers' Insurance Exchange, 481 F.3d 1119, 1125 (9th Cir. 2007) (holding that insurance adjusters were exempt administrative employees, despite the fact that they comprised approximately fifty percent of their employer's workforce and did not supervise other employees); see also 29 C.F.R. § 541.2 ("A job title alone is insufficient to establish the exempt status of an employee."); Robinson-Smith v. Government Employees Ins. Co., 323 F. Supp. 2d 12, 19 (D.D.C. 2004) ("Because the title of a job is not dispositive, it is necessary to go through the analysis provided in the Code of Federal Regulations.").
The deposition testimony submitted fails to define clearly the role of a "lead" organizer. According to Plaintiff, the substance of the work that she did on different campaigns remained the same, and it was the hours that she worked that varied. (Savage Dep. 201:10-22.) Elizabeth Gres, a UNITE organizing director who supervised Plaintiff on several campaigns between 2002 and 2005, testified that the term "lead organizer" is neither a term of art nor a classification. (Gres Dep. 42:19-43:13; see also Pl.'s 56.1 ¶ 7 and Def.'s Res. to Pl.'s 56.1 ¶ 7.) Instead, it indicates a level of responsibility that all organizers should be able to undertake once they have a certain amount of experience. (Gres Dep. 42:19-24. However, Ms. Gres also stated that, as lead organizer at the Rochester campaign, Plaintiff had "full responsibility for the organizing campaign." (Gres Dep. 46:11-12.) As the Court finds that Plaintiff did exempt administrative tasks based on an evaluation of her day-to-day activities, the Court need not determine the meaning of "lead organizer" in the UNITE organizing structure.
As the Department of Labor has explained, work related to "servicing" the business includes "advising the management, planning, negotiating, representing the company, purchasing, promoting sales, and business research and control." Final Rule Defining and Delimiting the Exemptions for Executive. Administrative, Professional. Outside Sales and Computer Employees, 69 Federal Register 22122, 22138 (Apr. 23, 2004), available at 2004 WL 865626. Plaintiff, herself, admits that she played a supporting role to the union's primary function: representing dues-paying members. (Savage Dep. 11:14-17; 12:4-7.) Plaintiff's primary duty as a UNITE staff organizer was to represent and promote her employer. Plaintiff's day-to-day activities focused on increasing UNITE's membership and, through that, its bargaining strength. See United Food and Commercial Workers Union, Local 1036 v. N.L.R.B., 307 F.3d 760 (9th Cir. 2002) (union bargaining strength significantly weakened by presence of non-unionized employees in an industry). Plaintiff recruited members by helping to organize unorganized workers and strengthened UNITE's bargaining ability by motivating UNITE members in the face of upcoming contract negotiations. Plaintiff was the face of the union for numerous UNITE members and unorganized workers. Plaintiff also represented UNITE and its goals to the community and customers.
As a representative of UNITE who promoted her employer and increased UNITE's membership base, Plaintiff's duties related to the running and servicing of UNITE's business. See e.g.,Roe-Midgett v. CC Services. Inc., 512 F.3d 865, 871 (7th Cir. 2008) (claims adjusters who were on the "front lines" of employer's auto claims adjusting operation, spent most of their time in the field and represent the "face" of their employer to claimants and mechanics were exempt administrative employees);Reich v. John Alden Life Insurance Co., 126 F.3d 1 (1st Cir. 1997) (marketing representatives whose day-to-day activities were in the nature of "representing the company" and "promoting sales" of employer's products, were engaged primarily in administrative work); Edwards v. Audubon Insurance Group, Inc., No. 3:02-CV-1618, 2004 WL 3119911 (S.D. Miss. Aug. 31, 2004) (an underwriter who negotiated for, represented and promoted his employer did work "directly related to the general business operations" of his employer); Palacio v. Progressive Ins. Co., 244 F. Supp. 2d 1040 (C.D. Cal. 2002) (insurance claims agent who was advising management, planning, negotiating and representing her employer performed exempt work under FLSA). Discretion and Independent Judgment with Respect to Matters of Significance
Defendant has also met its burden of showing that Plaintiff exercised sufficient discretion and independent judgment to qualify under the administrative employee exemption. Plaintiff argues that she could not satisfy this prong of the bona fide administrative employee test as a mere "rank-and-file organizer," who was no more than "one tooth on one cog in a large machine." (See Pl.'s Opp. at 16.) However, the regulations specifically recognize that large employers like UNITE may require a large number of employees performing the same or similar tasks. 29 C.F.R. § 541.202(d). "The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.202(d). Plaintiff acknowledges that her work involves some exercise of discretion and independent judgment, but argues that it is not as to "matters of significance." The undisputed record belies Plaintiff's characterization of her work.
The determination of whether an employee exercises discretion and independent judgment is based on an evaluation of the totality of the facts involved in the particular employment situation. 29 C.F.R. § 541.202(b); see also Moran v. GTL Const., LLC, 2007 WL 2142343 (S.D.N.Y. July 24, 2007). "In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.202(a).
The undisputed factual record demonstrates that Plaintiff exercised discretion and independent judgment on a daily, and sometimes moment-by-moment, basis. Although Plaintiff stated that "before we do any kind of strategy tactic or anything like that we have to talk to our supervisors," (Savage Dep. 186:3-5), Plaintiff's own deposition testimony shows that she exercised discretion and independent judgment. Plaintiff did more than "merely apply [her] knowledge in following prescribed procedures or determining which procedure to follow." Schaefer v. Indiana Michigan Power Co., 358 F.3d 394, 404 (6th Cir. 2004). Plaintiff's job required her to determine how to best approach individual workers and convince them of the benefit of organizing and choosing UNITE as their representative. Plaintiff made her own decisions about whom to approach and tailored her approach to each individual worker. See Reich v. John Alden Life Insurance Co., 126 F.3d 1, 13 (1st Cir. 1997) (marketing representatives who had discretion in choosing which agents to contact and what products to discuss with each agent exercised discretion and independent judgment). According to Plaintiff's own testimony, successful organizing requires the ability to think on one's feet; a worker who closes a door on an organizer may not open it again. If Plaintiff's approach with a particular worker floundered, she had to make decisions about altering her strategy. She admits exercising her own judgment in deciding when to push a worker forward and when to step back. (Savage Dep. 17:14-18.) In "moving" workers, Plaintiff was constantly evaluating possible courses of conduct and making decisions as to which course to follow.
Plaintiff also exercised discretion in identifying and developing potential leaders from amongst the workers at the plants. Plaintiff identified individuals who might be able to take leadership roles in the campaign and tested and cultivated their leadership ability by assigning tasks of increasing difficulty and evaluating their ability to successfully complete those assignments. In successfully identifying leaders, Plaintiff was able to recruit workers who could help move the campaign forward.
Furthermore, Plaintiff admits that union organizers play a role in deciding whether there is sufficient worker interest at a particular plant to make for a viable campaign. (Def.'s 56.1 ¶ 42; Pl.'s Res. to D's 56.1 (agreeing that union organizers are part of the decision making process).) Such a determination is critical to the Union's continued presence at a particular plant and its decision to abandon a campaign.
The fact that Plaintiff's exercise of independent judgment sometimes took the form of recommendations — such as recommending that a location was ready for a "blitz," recommending that certain workers play larger roles in the campaign, and recommending that the union abandon its campaign at the Rochester plant — instead of direct action does not diminish her exercise of discretion and judgment. "[D]ecisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action." 29 C.F.R. § 541.202(b). Neither does the fact that Plaintiff's decisions or recommendations frequently required supervisor approval render her actions non-discretionary. 29 C.F.R. § 541.202(c) ("[T]he term `discretion and independent judgment' does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.") "The fact that a chosen action might be overruled by a supervisor says nothing about the discretion and judgment that went into its selection in the first place."Kennedy v. Commonwealth Edison Co., 410 F.3d 365 (7th Cir. 2005).
The undisputed factual record in this case, viewed in the light most favorable to Plaintiff, also establishes that the discretion and independent judgment that Plaintiff exercised related to matters of significance. "The term `matters of significance' refers to the level of importance or consequence of the work performed." 29 C.F.R. § 541.202(b). The Court recognizes that an employee "does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly." 29 C.F.R. § 541.202(f). The consequence of Plaintiff's ability to perform her work successfully — organizing unrepresented workers, persuading those workers to choose UNITE as their union, and motivating UNITE members, in the face of opposition, to stand strong as a group — could hardly be more significant to Plaintiff's employer. Plaintiff's actions, when successful, increase UNITE's entire membership base and strengthen the union's collective bargaining power. The benefits of Plaintiff's success in performing her work far surpass a mere financial impact on Defendant's bottom line; they enable Defendant to better achieve its stated mission of improving employment conditions for union members and for all workers.
As the foregoing discussion demonstrates, a thorough analysis of the facts in this case establishes that there is no issue of material fact as to the applicability of the FLSA's administrative exemption. Based on Plaintiff's own description of her duties and responsibilities as UNITE organizer, Defendant is entitled, as a matter of law, to judgment dismissing Plaintiff's FLSA claim.
Because Plaintiff's cross-motion for summary judgment asks the Court to find in her favor on the question of whether she is an exempt employee under the FLSA, and the Court has already found, drawing all inferences in Plaintiff's favor, that Plaintiff is an exempt employee under the FLSA, Plaintiff cannot succeed on her cross-motion. Thus, Plaintiff's cross-motion for summary judgment is denied.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment in its favor as to Plaintiff's status as exempt from the overtime provisions of the FLSA is granted and Plaintiff's cross-motion as to the same issue is denied. The Clerk of Court is respectfully requested to terminate Docket Entry Nos. 84 and 93, enter judgment in Defendant's favor dismissing Plaintiff's claims, and close this case.