As part of its defense, Suburban argued that its airline pilots were
"learned professionals" within the regulatory standards found at 29 C.F.R. Part 541
(1999), and therefore were not "service employees" as defined under the Service
Contract Act at 41 U.S.C.A. §357(b). Following discovery, both the Department and
Suburban filed motions for summary decision on this "professional exemption"
issue. The Administrative Law Judge (ALJ) granted Suburban's motion for summary decision
and dismissed the complaint, believing that the "learned professional" status of
airline pilots was controlled in significant part by the decision of the U.S. Court of Appeals for
the Fifth Circuit in Paul v. Petroleum Equipment Tools Co. , 708 F.2d 168, reh'g
den'd , 714 F.2d 137 (1983). [ALJ] Decision and Order Granting Respondent's Motion for
Summary Decision and Dismissing Complaint, ALJ Case No. 97-SCA-4 (July 23, 1998) (ALJ
D&O), slip op. at 9-10. This appeal followed.
We have jurisdiction pursuant to 29 C.F.R. §8.1(b)(3) (2000).
STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo , that is, our
review is governed by the same standard used by the trial court. Administrator v. Native
Technologies, Inc. , ARB Case No. 98-034, ALJ Case No. 96-LCA-2 (May 28, 1999), slip
op. at 5-6, citing Han v. Mobil Oil Corporation , 73 F.3d 872, 874-875 (9th Cir. 1995).
Viewing the evidence in the light most favorable to the non-moving party, we must determine
whether there are any genuine issues of material fact and whether the lower court correctly
applied the relevant law. Id. , citing Mongeluzo v. Baxter Travenol Long Term
Disability Benefit Plan , 46 F.3d 938, 942 (9th Cir. 1995).
DISCUSSION
The question whether airline pilots qualify as "learned
professionals" under the Part 541 regulations (and therefore are exempt from SCA
coverage) was addressed in detail in our recent decision in U.S. Postal Service ANET and
WNET Contracts , ARB Case No. 98-131 (Aug. 4, 2000). As we noted in that decision, an
employer claiming that a worker is exempt as a "learned professional" must prove
that the worker meets three specific requirements under the Part 541 "short test":
1. The employee's primary duty consists of "[w]ork requiring
knowledge of an advance[d] and
2. The employee's "work requires the consistent exercise of
discretion and judgment in its performance[.]"
§541.3(b) and (e); and
3. The "employee . . . is compensated on a salary or fee basis
at a rate of not less than $250 per week . . . exclusive of board,
lodging or other facilities[.]" §541.3(e).
Postal Service at 10. In order to meet the first of these tests (knowledge of an
advanced type in a field of science or learning), we noted that the Part 541 regulations provide
the following standards:
"Knowledge of an advanced type in a field of science or
learning" (29 C.F.R. §541.3(a)(1)) means that the
profession is learned through a "prolonged course of
specialized intellectual instruction," rather than a general
academic education or an apprenticeship. 29 C.F.R.
§541.301(a), (d).
Generally, "advanced knowledge" means knowledge
that cannot be obtained at the high school level. 29 C.F.R.
§541.301(b).
Entry into the profession typically requires an advanced academic
degree as "a standard (if not universal) prerequisite,"
such as the fields of law, medicine, nursing, accounting, actuarial
computation, engineering, architecture, teaching, and various types
of physical, chemical and biological sciences (including pharmacy
and registered or certified medical technologists). Although in
some instances the professional training may consist of
concentrated study lasting fewer than four years (e.g. ,
registered nurses who have been examined by state licensure
boards), the examples of "learned professions" cited by
the Secretary almost universally are entered following four years
or more of higher education, with significant specialization. 29
C.F.R. §541.301(e)(1).
Postal Service at 14.
We found that "while pilots are highly skilled, the training required
to become a pilot simply doesn't meet the 'knowledge of an advanced type in a field of science
or learning' standard for being a 'learned profession[,]'" observing that none of the many
parties participating in the Postal Service case disputed "the general proposition
that most pilots do not enter the occupation through formal academic training."
Id. at 17, 19.
Finally, with regard to the Fifth Circuit's decision in Paul a key
consideration in the ALJ's decision in this case we noted our respectful disagreement with the
court's analytical approach to the professional exemption claim. Id. at 19-22.
Because the record in Postal Service could not support a claim
that airline pilots customarily enter their profession through a prolonged course of formal
academic training, we concluded that the occupation did not qualify as a "learned
profession" under the Part 541 regulations. Nothing in the record in the instant matter
persuades us to the contrary; thus, we similarly find in this case, as a matter of law, that airline
pilots are not members of a "learned profession."4
It is apparent that the ALJ below harbored similar doubts, noting in his
Decision that "[a]though pilots are highly skilled individuals, I question whether any pilot
can be considered in a 'learned' profession within the meaning of the Act and the regulations.
However, I am bound by the decision in Paul ." ALJ D&O at 9 n.5. We do not
share the ALJ's assumption that Paul controls the outcome of this case. See
generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal
Administrative Agencies, 98 Yale L.J. 679 (1989), cited in 1 Kenneth Culp Davis & Richard J.
Pierce, Jr., Administrative Law Treatise §2.9 (3d Ed. 1994).
Based on the record before us, and for the reasons outlined above and in
the Postal Service case, we find that airline pilots are not "learned
professionals" under the Part 541 regulations because the occupation does not meet the
"knowledge of an advanced type in a field of science and learning" requirement.
Because we find that Suburban's airline pilots do not meet the
"knowledge" test for exemption as learned professionals, it is unnecessary to
consider whether they meet the "salary basis" test.
CONCLUSION
For the foregoing reasons, we GRANT the Administrator's
petition for review. This matter is REMANDED to the Administrative Law Judge for
further proceedings consistent with this decision.
SO ORDERED.
PAUL GREENBERG
E. COOPER BROWN
[ENDNOTES]
1
2
3
4 Postal Service plainly demonstrated that the airline
pilots considered in that matter did not meet the Part 541 standard. The evidence before us in this case
leads us to the same conclusion.
