Glenn L. Martin Nebraska Co. v. Culkin

197 F.2d 981

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 15, 1952
• Docket: 14482
• Status: Published

Opinions

COLLET, Circuit Judge.

The primary question is whether the plaintiffs in this action, a number of guards, and firemen employed at the Glenn L. Martin plant near Omaha, Nebraska, during World War II, are entitled to recover-wages under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., for a 30-minute period which has been called and which we will refer to as “lunch periods”. After making extensive and detailed findings of' fact and stating its conclusions of law, the-trial court entered judgment for plaintiffs totaling $60,980.14 as the amount of compensation due them. To that was added' one-half of that amount as liquidated damages, and $15,000 attorney fees. From that judgment- the defendant appeals. The facts, material to the issues presented on this appeal follow. ' '

The United States Government erected an airplane assembly and modification plant on the Fort Crook military reservation near Omaha, Nebraska. The entire area containing this plant, consisting of approximately 700 acres, was fenced and guarded. The Government entered into contracts with The Glenn L. Martin Nebraska Company for the operation of the plant and the production and modification of airplanes. In order to carry out those contracts the Martin Company hired many employees. For security reasons all were hired subject to the approval of the Government but were under the direct control and supervision of the Martin Company. During the period of time now material there were from 13,000 to 14,000 persons employed at the plant, which included these plaintiffs.

The guards were charged with the general duty of maintaining order and exercising constant vigilance for the security of the plant. Each guard had certain specific duties relating to an individual post, and a few were assigned as “rovers”. Among the duties of the rovers was that of temporarily relieving guards at specific posts. The guards were divided into three shifts. The plant operated on a 24-hour-a-day schedule. From May 4, 1942, until March 6, 1943, the guards on the first shift checked in not later than 7:00 a. m. and checked out not earlier than 3 :00 p. m. Those on that shift brought their lunch and were required to eat it while on duty. All of the eight hours between 7:00 a. m. and 3:00 p. m. were treated as working time and compensated for. On March 3, 1943, an order was issued by defendant, effective March 6, 1943, which was as follows:

“Effective Saturday, March 6, the Guards on the first shift will ring in by 6:45 A.M. and ring out after 3:15 P.M. This will mean that the Guards will have Sy2 hours on the clock. This should be ample time to get your uniforms changed and receive orders and be on the post at 7:00 A.M.

“Guards will not be allowed to eat on their posts. They will be allowed thirty (30) .minutes for lunch. The Rover in this case when on relief will check the Guard out and in during the lunch period. The Guards will be allowed to eat in the Cafeteria during the lunch period.

“The Guards on the second shift will ■ring in by 2:45 P.M. and ring out after 11:15 P.M. and will follow the instructions as given in the first paragraph, and the second paragraph.

“The Guards on the third shift will ring in by 10;45 P.M. and ring out after 7:15 A.M. and will follow the instructions as given in the first paragraph, and the second paragraph.

“That pertains to all three Companies.”

The result of this order was that the shifts overlapped and prevented the possibility of leaving the plant unprotected during the change of shifts. The fifteen minutes prior to 7:00 a. m. and subsequent to 3:00 p. m. were compensated for and are not involved in the present controversy. The timekeeping department was directed to and did deduct the 30-minute lunch period from working time. It is the claim of the guards and firemen for pay for this 30-minute period which constitutes the basis for this action.

The defendant maintained a fire department on the plant. The firemen performed the duties usually incident to that occupation. While they were not specifically included in the above quoted order of March 3, 1943, that order was understood to apply to them as well as the guards and has been so treated throughout these proceedings. The firemen reported prior to that order and during its effective period in the same manner and on the same schedule (described above) as the guards. They were likewise paid for eight hours, and the 30-minute lunch period deducted. Their claim is, like the guards’, based upon the hypothesis that the 30-minute lunch period was actually working time for which they should have been but were not compensated.

Complaints were made from time to time by the guards and firemen on account of the deduction of the 30-minute lunch periods from working time, but they continued on the job. On September 17, 1944, the defendant resumed the practice of paying the firemen and guards for the lunch period. The period of time between March 6, 1943, and September 17, 1944, is the period during which the claim for compensation for the 30-minute lunch period is made.

The trial court found that [97 F.Supp. 672]:

“The employees involved in the present case were not waiting to be engaged ; they had been engaged to wait. The defendant contends, however, that even though the employees were ‘on call’ during the lunch period that the employees did not spend the time during this period predominantly for the 'benefit of the employer.

****** “The evidence in this case clearly establishes as a matter of fact that during the ‘lunch periods’ in question, the employees were engaged in the principal activity of the workweek and were not merely taking care of preliminary or postliminary matters.”

This factual conclusion constitutes the focal point of defendant’s attack upon the judgment. The errors assigned are:

I.

That the trial court erred in making the finding that “The evidence in this case clearly establishes as a matter of fact that during the ‘lunch periods’ in question, the employees were engaged in the principal activity of the workweek and were not merely taking care of preliminary or post-liminary matters”, and in finding that the 30-minute lunch period constituted hours worked within the meaning of the Fair Labor Standards Act.

II.

That the trial court erred in its conclusions of law (a) that Section 2 of the Portal-to-Portal Act, 29 U.S.C.A. § 252, was inapplicable and that plaintiffs were not required to plead and prove a contract, custom or practice, to compensate them for the time worked during the lunch period; (b) in holding that plaintiffs’' pleadings complied with the requirements of the Portal-to-Portal Act, although the court held that Act inapplicable; (c) in holding that the “de minimis” principle did not apply to the 30-minute lunch periods; (d) in holding that the evidence was sufficient to show that plaintiffs were required to engage in any activities during the 30-minute lunch period which would make that period working time under the Fair Labor Standards Act; (e) in allowing plaintiffs liquidated damages equal to 50 per cent of the amount found due them, because plaintiffs were entitled to no recovery at all and if they were that “defendant showed to the satisfaction of the court that its (the defendant’s) action in not paying for the daily thirty-minute lunch periods was in good faith and that it had reasonable grounds for believing that its failure to pay was not a violation of the Fair Labor Standards Act”, and that the court abused ■ its discretion in awarding liquidated damages; and (f) in allowing plaintiffs’ counsel attorney fees.

We do not deem it necessary or desirable to relate in detail the facts describing the exact nature of the duties of the guards and firemen during the 30-minute lunch period upon which the trial court’s finding was based that the employees were engaged in the principal activity of their work week during that 30-minute period. We have examined the record and reach the conclusion that the court’s finding is amply supported by the evidence.

Much emphasis is placed by defendant upon the fact that only in comparatively few instances did the evidence show that guards or firemen were required to answer calls for fires or to quell disturbances during the 30-minute period in question. But the question was not so much whether the guards and firemen were actually regularly called upon to put down overt acts of violence, sabotage, disturbances, or to put out fires during the 30-minute period, as it was whether they were performing their regular duties during that period and were then substantially performing the duties assigned to them by their employer and were not free to follow pursuits of a purely private nature. Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 163, 89 . As the Supreme Court said in Skidmore v. Swift & Co.:

“For reasons set forth in the Armour case, 323 U.S. 126, 65 S.Ct. 165 [89 L.Ed. 118] decided herewith we hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time. * * * Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged. His compensation may cover both waiting and task, or only performance of the task itself.”

Although the guards were constantly obliged to prevent disturbances by their presence and vigilance, and the firemen were likewise obligated to- be constantly vigilant to prevent fires, yet both the guards and the firemen served to a considerable extent in a stand-by capacity. In the latter respect both were engaged in their regular duties during the 30-minute period as effectively as if they were putting down disturbances or putting out fires. And if, as the trial court found, these plaintiffs were engaged in the principal activity of their regular work during the 30-minute period, they were entitled to recover compensation therefor unless defendant is correct in one or more of its remaining assignments of error.

The Effect of the Portal-to-Portal Act

Defendant contends that Section 2 of the Portal-to-Portal Act¹ bars recovery in this action. The trial court held that it did not apply, saying, 97 F. Supp. 661, 674: “Whether the time is Portal-to-Portal time depends upon the nature of the activity engaged in during the period in question; and not upon the term by which the period is known.” Defendant relies upon our opinion in United States Cartridge Co. v. Powell, 8 Cir., 185 F.2d 67, in support of its contention that the requirements of Section 2 heretofore noted must be pleaded and proved, while plaintiffs rely on our opinion in Central Missouri Tel. Co. v. Con well, 8 Cir., 170 F.2d 641, in support of the trial court’s conclusion that the Portal-to-Portal Act does not apply under the facts in this case.

Referring to the Powell case, supra, the trial court said:

“The court’s attention has been directed to the statement of Judge Collet, writing in the more recent decision in United States Cartridge Company v. Powell, 8 Cir., 1950, 185 F.2d 67, 71: ‘Since the time claimed before the beginning of the regular shifts and the 30-minute lunch periods are of the character which the Portal-to-Portal Act requires that there should be- a contract expressly providing compensation for, or a custom or practice consistent with an intention that there be compensation for such time and not inconsistent with an existing contract, before compensation may be recovered for such time, a formal compliance with the requirement of the Act would require that the conditions precedent to recovery, specified in the Act, be pleaded.’ This court does not understand the foregoing statement, read in its context and limited to the facts involved in the Powell case, to mean that time claimed for lunch periods is, in every situation, Portal-to-Portal in character. Whether the time is Portal-to-Portal time depends upon the nature of the activity engaged in during the period in question; and not upon the term 'by which the period is known. The evidence in this case clearly establishes as a matter of fact that during the ‘lunch periods’ in question, the employees were engaged in the principal activity of the workweek and were not merely taking care of preliminary or postliminary matters. This being so, the court has concluded that Section 2 of the Portal Act is inapplicable to this case and that the plaintiffs are not required to plead and prove a contract, custom or practice to compensate them for the hours worked during the lunch period. Biggs v. Joshua Hendy Corp., supra [9 Cir., 183 F.2d 515].”

The trial court correctly construed our opinion in the Powell case. As stated in Armour & Co. v. Wantock, -supra, 323 loc. cit. 132, 65 S.Ct. loc.cit. 168: •

“It is timely, again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of, cases not before the Court.”

In the Powell case plaintiffs were relying upon a contract which they claimed entitled them to compensation for the 30-minute lunch period. The defendant was there denying that that was the contract. The trial court had found that it was. We sustained the finding upon the- record. Then when we came to consider the defendant’s contention that plaintiffs should have been required to plead and prove that the contract entitled them to compensation under the Portal-to-Portal Act, we said in effect that the plaintiffs had made that proof. The language used was:

. “Defendant’s second contention that it was encumbent upon the plaintiffs to plead affirmatively and to prove that the activities for which they sought compensation were compensable activities within the meaning of Section 2 of the Portal-to-Portal Act is answered in effect by what has been said relative to the foregoing contention of defendant. That is true because the plaintiffs are entitled to recover if they can show that by the terms of their employment they were entitled to compensation for the time prior to the regular shift and for the lunch hour period. They undertook to do that. If they succeeded in doing so, then the Portal-to-Portal Act does not bar such compensation. The trial court found that they had done so and as stated, the finding was sufficiently supported by the record. Hence the requirement as to proof was met by the evidence. Since the time claimed before the beginning of the regular shifts and the 30-minute lunch periods are of the character which the Portal-to-Portal Act requires that there should be a contract expressly providing compensation for, or a custom or practice consistent with an intention that there be compensation for such time and not inconsistent with an existing contract, before compensation may be recovered for such time, a formal compliance with the requirement of the Act would require that the conditions precedent to recovery, specified in the Act, be pleaded. Battaglia v. General Motors Corporation, 2 Cir., 169 F.2d 254; Bonner v. Elizabeth Arden, Inc., 2 Cir., 177 F.2d 703. Plaintiffs should have an opportunity on remand to make the appropriate amendment.”

It should be noted that in the Powell case the issue under discussion was whether the contract provided for payment for the lunch period, not that the 30-minute lunch period was actually devoted to the regular work of the employees. In other words, the issue presented was whether the time which was treated as nonworking time was to be compensated for by a specific contract — one of the requirements of the Portal-to-Portal Act, which after the enactment of that Act had to be pleaded if wages were to be recovered for that type of time. In the case of Battaglia v. General Motors Corporation, 2 Cir., 169 F.2d 254, cited by us, that was the character of time for which compensation was sought and which that court held had to be supported by pleading and proof of the requirement of the Portal-to-Portal Act. The same is true of the facts in the other •case cited by us, Bonner v. Elizabeth Arden, Inc., 2 Cir., 177 F.2d 703. And we were remanding the case to afford defendant an opportunity which had been denied it, to plead the Portal-to-Portal Act as a •defense. Naturally we called attention to the fact that since the Portal-to-Portal Act had not been in effect at the time of the trial and since it was to be pleaded on remand as a defense, that plaintiffs should also have the right to amend their pleadings to conform to their evidence and answer the requirements of the Portal-to-Portal Act.²

But in the Central Missouri Telephone Co. case the situation was entirely different. There the plaintiffs were contending that the wages sought were for ordinary working time, as plaintiffs contend in the case at bar. We held that since the time in dispute was shown to be working time, the Portal-to-Portal Act did not apply, citing several authorities. There is no conflict between the two lines of cases. The facts distinguish them. The case at bar falls in the class with the Central Missouri Telephone Co. case, as the trial court correctly concluded.

Defendant's contention that plaintiffs’ complaint did not sufficiently plead the requirement of the Portal-to-Portal Act becomes abstract in the light of the inapplicability of that Act.

The facts in this case do not bring It within the de minimis principle. United States Cartridge Co. v. Powell, supra; Landaas v. Canister Co., 3 Cir., 188 F.2d 768. Defendant cites McComb v. C. A. Swanson & Sons, D.C.Neb., 77 F.Supp. 716; Bridgeman v. Ford, Bacon & Davis, 8 Cir., 161 F.2d 962; Tully v. Joshua Hendy Corp., D.C., 79 F.Supp. 709; Addison v. Huron Stevedoring Corp., D.C., 96 F.Supp. 142, in support of its argument that the rule of de minimis should be applied. In the McComb-Swanson case the time involved was four minutes for changing clothes before work and five or six minutes after regular work. In the Bridgeman case the trial court held that truck operators required to spend 20 minutes out of each rest period of eight hours in actual work were entitled to compensation for those 20-minute periods, hut that firemen who spent some time (the exact amount not very satisfactorily shown) out of their 8-hour rest period performing tasks not required by the employer and some additional time during the rest period performing other duties required to be performed during the working hours, for which they were paid, performed no compensable work. We affirmed on the ground that we were not able to say upon the record that the trial court’s finding was without substantial basis and observed that the time spent by the firemen “might well have been considered by the district judge to fall within the de minimis rule.” [161 F.2d 962, 965] The facts in the above noted cases distinguish them from the case at bar and we do not deem them controlling here.

In Addison v. Huron Stevedoring Corp., D.C.N.Y., 96 F.Supp. 142, 181, the court held that the rule of “ ‘de minimus non curat lex’ ” should be applied to anything less than $1.00 per week, but that a dollar a week (less than that involved here) was not a trivial matter to a working man. We do not agree with the conclusions stated in Tully v. Joshua Hendy Corp., D.C.Cal., 79 F.Supp. 709.

The point that the trial court erred in holding that the evidence was sufficient to show that plaintiffs were required to engage in any activities during the 30-minute lunch period which would make the 30-minute periods working time under the Fair Labor Standards Act is answered by what has already been said.

The allowance of liquidated damages is discretionary with the trial court. Fred Wolferman, Inc., v. Gustafson, 8 Cir., 169 F.2d 759; Day & Zimmermann v. Reid, 8 Cir., 168 F.2d 356; Landaas v. Canister Co., 3 Cir., 188 F.2d 768. In the absence of a clear abuse of that discretion, the trial court’s action will not be set aside. No such abuse has been shown. The attorney fee was properly allowed by the trial court. Fair Labor Standards Act, 29 U.S.C.A. § 216(b).

We are requested to allow plaintiffs an additional attorney fee, on this appeal. Under all the facts and circumstances in this case, and in view of the previous allowance for attorney fees, that request should be and is denied.

Finding no error, the judgment is affirmed.

1 . “§ 252. Relief from certain existing claims under the Fair Labor Standards Act of 1938, as amended, the WalshHealey Act, and the Bacon-Davis Act “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-IIealey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after May 14, 1947), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to May 14, 1947, except an activity which was compensable by either—

$ $ * * 4 #

“(2) a custom or practice in effect, at the time of such activity, at the estab» lishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 29 U.S.O. A. § 252.

2 . Since the Powell case was remanded for further hearing we avoid any implications, other than what was said on the former appeal, as to the legal effect of any new evidence in that case.