MEMORANDUM OPINION 1
Thе plaintiffs in this case are thirty-nine truck drivers employed by Goodyear Tire and Rubber Company (Goodyear), who haul various petroleum products to and from Goodyear’s Beaumont, Texas, plant. The plaintiff’s are suing Goodyear for overtime under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219.
This Court has jurisdiction by virtue оf 29 U.S.C. § 216(b). Venue is proper in the Eastern District of Texas. See 28 U.S.C. § 1391(b) and (c).
Plaintiffs assert their right to overtime pay at time and one half regular pay for those hours worked above forty in any work week. See 29 U.S.C. § 207(a)(1). The defendant claims that it is exempt from the overtime requirements of the FLSA by virtue of 29 U.S.C. § 213(b)(1) (“Motor Carrier Act Exemption”). There is no dispute that, but for the claimed exemption, Goodyear is covered by the FLSA. The claimed exemption states, in pertinent part:
§ 213
(b) The 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 qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49 ... .
29 U.S.C. § 213(b)(1). Section 304 of Title 49, in turn, states:
§ 304
(a) It shall be the duty of the Commission—
*546 (3) To establish for private carriers by motor vehicle, if need therefore is found, reasonable requirements to promote safety of operаtions, and to that end, prescribe qualifications and maximum hours of service of employees, and standards of equipment ....
49 U.S.C. § 304. It is not disputed that Goodyear would be a “private carrier by motor vehicle” as defined by 49 U.S.C. § 10102(13), 2 rather than either a “common carrier” or a “contract carrier.” See 49 U.S.C. § 10102(10)-(12). The dispute is whether Goodyear transports property “interstate.” 3
Goodyear operates a polyisoprene (synthetic rubber) plant in Beaumont, Texas. The plant also manufactures resins. A necessary ingredient for the manufacture of polyisoprene is crude isoprene. Goodyear obtains the crude isoprene from several nearby petrochemical companies, including Shell, Arco, Gulf, Exxon, and Monsanto. These companies obtain foreign and domestic crude oil and process it into various streams, one of which is crude isoprene. Goodyear has contracted with these crude oil refiners to obtain quantities of crude isoprene, which Goodyear processes by distillation to yield pure isoprene and a by product, raffinate. Pursuant to some of the Goodyear contracts, some of the raffinates are transpоrted back to the crude oil refiners, and they are further processed and blended to become gasoline.
Goodyear rents a fleet of tank trucks from Ryder to transport the crude isoprene and raffinates to and from the Goodyear plant. The trucks are maintained by Ryder. Goodyеar hired the plaintiffs to drive these rented tank trucks. The plaintiffs are not unionized, and do not have contracts with Goodyear. The drivers are assigned routes based on seniority, and hold these routes for a specified period of time. There was evidence that Goodyear could unilaterally assign any driver to any route at any time, but this was not its practice. Goodyear paid the plaintiffs time and one-half for those hours in excess of forty per work week until June, 1975. In June, 1975, Goodyear changed its policy and ceased to pay overtime. Evidence adduced at trial indicates that Goodyear changed its policy based on information received from other area truck lines, and in-house and outside counsel. Goodyear claims that it believes it is exempt from the FLSA because it is “subject to the jurisdiction of numerous federal agencies because of being in interstate commerce.” Defendants Post-trial brief at 7. (Emphasis in original).
The Goodyear drivers transported crude isoprene and raffinates both interstate and intrastate, although the wholly intrastate hauls clearly predominated. The evidence indicates that less than one percent of the hauls were to or from Louisiana términals, while the rest, over ninety-nine percent, were to or from points within Texas. Specifically, during the years 1976 to 1979, the drivers made a total of 49,329 hauls. Only seventy-one were to or from Louisiana. The interstate trips thus represented 0.1437% of the total hauls. Of the total trips, seventeen were to or from the StansTrans terminal in Texas City, carrying products destined for France.
I THE EXEMPTION
A
The burden of proving an exemption to the FLSA rests on the employer claiming
*547
the exemption.
Idaho Sheet Metal Works, Inc. v. Wirtz,
Goodyear argues, first, that all of the deliveries are interstate because the products originate from points outside Texas and are ultimately destined for places outside of Texas. Goodyear would like to avail itself of the proposition that if a product is moving in interstate commerce, the Secretary has the power to regulate a purely intrastate segmеnt of the interstate movement.
See Galbreath v. Gulf Oil Corp.,
There is evidence that Goodyear drivers made seventeen trips to the Stans-Trans terminal in Texаs City, where the isoprene was loaded aboard tankers bound for France. These trips represented 0.034% of the total trips made from 1976 to 1979. Even assuming that the isoprene did not “come to rest” at the Stans-Trans terminal, the Court finds, for the reasons discussed in part B that such a small percentage оf interstate transportation does not render Goodyear subject to the jurisdiction of the Secretary of Transportation.
The cases cited by Goodyear to support their contention are not on point because they involved the temporary storage of a single product for distribution, and there was a continuous movement interstate, interrupted by a change in carrier or bulk storage for a short period of time.
See, e. g., Baird v. Wagoner Transportation Co.,
B
The more difficult question is whether the Louisiana trips made the transportation interstate. The evidence introduced showed that the thirty-nine plaintiffs madе 49,392 trips during the years 1976 to 1979. Seventy-one trips were made out of state, or 0.14% of all trips. Twenty-nine drivers made no interstate trips. In addition, seventeen trips were made to the Stans-Trans terminal involving export of isoprene to France, raising the maximum number of “interstate” trips to eighty-eight out of 49, 329, or 0.17%. Divided amоng the thirty-nine plaintiffs, the percentage is 0.004% average interstate travel for each employee.
Goodyear relies on
Morris v. McComb,
these strictly interstate trips were distributed generally throughout the year and their performance was shared indiscriminately by the drivers and was mingled with the performance of other driving services rendered by them otherwise than in interstate commerce. These trips were thus a natural, integral and apparently inseparable part of the common carrier service of the petitioner and of his drivers.
Id.
at 433,
The facts of the present case lead to the opposite conclusion. Less than one percent of the trips were in interstate commerce, as compared to four percent in Morris v. McComb. In Morris v. McComb, one or more interstate trips were made weekly, and on the average, twenty-four percent of the drivers made the interstate trips each week. Most of Goodyear’s drivers, on the other hand, never made any interstаte trips. Additionally, the defendant in Morris v. McComb was a common carrier and was required by virtue of his status to take interstate business. The interstate trips were randomly assigned in Morris v. McComb, but Goodyear’s practice is to assign routes to drivers based on seniority.
The instant case is governed by
Coleman v. Jiffy-June Farms, Inc.,
The facts in the present case are more persuasive than in
Jiffy-June Farms.
The interstate trips here are 0.17%, as opposed to 0.23%. In
Jiffy-June Farms,
the trips were made two to three times weekly; here, on the average only once every three weeks. Thus, Goodyear is not exempt from the FLSA by virtue of 29 U.S.C. § 213(b)(1).
4
But see Brennan v. Schwerman Trucking Co. of Virginia, Inc.,
II THE STATUTE OF LIMITATIONS
Section 255 of Title 29 (Portal to Portal Act) provides that an actiоn under the FLSA for unpaid overtime compensation “may be commenced within two years after the cause of action accrued .. . except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action аccrued . .. . ” The standard in the Fifth Circuit for determining what is a willful violation was enunciated in
Coleman v. Jiffy-June Farms, Inc.,
[An] employer’s decision to change his employees’ rate of pay in violation of FLSA is “wilful” when, as in this case, there is substantial evidence in the record to support a finding that the employer knew or suspected that his actions might *549 violate the FLSA. Stated most simply, we think the test should be: Did the employer know the FLSA was in the picture?
The Fifth Circuit has also stated that “actual awareness of the law is unnecessary to establish willfulness. Knowledge is imputed . ... ”
Marshall v. A & M Consolidated Independent School District,
Goodyear asserts that its violations were not wilful because it checked with in-house and outside counsel, and with other similarly situated employers and manufacturing groups. Additionally, Goodyear argues that the violations were not wilful because the Secretary of Transportation visited the plant and “asserted its jurisdiction.” 5
Under the standard used in the Fifth Circuit, it is clear that the violations were “wilful.” The testimony of Mr. Barga, the Goodyear employee relations manager, indicates that the decision not to pay overtime was a deliberate decision made by Mr. Barga, Mr. Sontag, and Mr. Conner, that the exemption applied. Thus the three year statute of limitations aрplies.
Ill LIQUIDATED DAMAGES
Section 216(b) of the FLSA allows employees to recover “their unpaid overtime compensation ... and in an additional equal amount as liquidated damages.” Section 260 of Title 29 provides, however, that:
if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages ....
The standard applied in the Fifth Circuit is stated in
Barcellona v. Tiffany English Pub,
We understand the language of [29 U.S.C. § 260] to impose upon the employer who would escape the payment of liquidated damages a plain and substantial burden of persuading the court by proof that his failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon him more than a compensatory verdict.
Id. at 468.
This Court is persuaded that Goodyear acted in good faith and with reasonable grounds to believe that the exemption applied. The evidence showed that Goodyear acted on the advise of counsel an accordance with what it viewed as local industry practice. The determination that the Secretary does not have power to regulate the hours and qualifications of Goodyear’s drivers is a factual one, and Goodyear should not be penalized for its error.
Notes
. This Memorandum Opinion constitutes the findings of fact and conclusions of law required by Rule 52(a), F.R.Civ.P.
. Section 10102(13) states:
“motоr private carrier” means a person, other than a motor carrier, transporting property by motor vehicle when—
(A) the transportation is as provided in section 10521(a)(1) and (2)'of this title;
(B) the person is the owner, lessee, or bailee of the property being transported; and
(C) the property is being transported for sale, lease, rent, or to further a commercial enterprise.
Section 10521(a) (which is the same as the prior 49 U.S.C. § 303 (repealed, Pub.L. 95-473, § 4(b), Oct. 17, 1978, 92 Stat. 1466), covers transportation by motor carrier:
between a place in — (A) a State and a place in another Stаte (B) a State and another place in the same State through another state
Subsections (a)(1)(C), (D) and (E) and (a)(2) relate to foreign countries and reservations.
. See n.2 supra.
. Goodyear also argues that it is exempt from the FLSA because its drivers transport hazardous materials. While it is true that the Secretаry of Transportation has power to regulate transportation of hazardous materials pursuant to 49 U.S.C. §§ 1801-1812, it does not follow that that power exempts Goodyear from the FLSA. Section 213(b)(1) exempts “any employer with respect to whom the Secretary of Transportation has powеr to establish qualifications and maximum hours pursuant to the provisions of Section 304 of Title 49 .... ” The exemption, on its face, does not apply to employees with respect to whom the Secretary has the power to regulate under § 1801 et seq.
. Evidence at trial indicates that the Secretary did send representatives to the plant, but the nature of their visits was not clearly established. See also n. 4, supra, in this regard.