Glenn L. Martin Nebraska Co. v. Culkin

RIDDICK, Circuit Judge

(dissenting).

Plaintiffs were employed as guards or firemen at defendant’s plant. Their employment was subject to the approval of the United States. They were required to bear arms and wear the identifying uniforms furnished them while within the plant.

From January 1, 1942, until March 6, 1943, plaintiffs were employed and paid for an eight-hour day. During this period plaintiffs were required to spend one-half hour or more each day, in addition to their regular eight-hour work day, in reporting for duty, answering roll call, changing from their civilian clothes to their uniforms, and in receiving arms and. other equipment before reporting to their posts of duty, and at the conclusion of their eight-hour work day in changing from their uniforms to their civilian clothes and turning in their equipment. For this time in excess of their eight hours of work they were not paid, and payment was not required either by an express provision of their contract of employment or by any custom or practice existing at defendant’s plant. During this period plaintiffs were allowed no time off for lunch. They were permitted to bring their lunches and eat while at their posts of duty as and when their work permitted.

After March 6, 1943, and until September 17, 1944, the work hours of plaintiffs were changed. What brought about the change-the evidence does not reveal, but under it the plaintiffs were still employed for an; eight-hour work day which began fifteen minutes before they reached the posts- to> which they were assigned and ended fifteen minutes after leaving their posts. For this half hour which plaintiffs spent in reporting for duty, in changing from civilian to. official clothes, and in receiving equipment before going to their posts and in changing from official to civilian clothes and turning-in equipment after leaving their posts, the-plaintiffs were paid. But during this period! plaintiffs were allowed thirty minutes off each day for lunch for which they received' no compensation and for which no express provision of their contract of employment or any custom or practice existing at defendant’s plant required payment. During the thirty minutes allowed for lunch plaintiffs were permitted to eat at defendant’s cafeterias, or, if they preferred, to bring their own lunches and to eat wherever they wished during the lunch period allowed them.

Beginning on September 17, 1944, the hours of work for plaintiffs were again changed. From the date mentioned until the termination of operations at defendant’s plant the thirty minutes allowance of time off for lunch was abolished and plaintiffs were paid for eight and one-half hours each day. During this period plaintiffs, were required, if they ate lunch, to bring it with them and eat at their posts of duty.

The first complaint in this action was-filed on January 11, 1945, by four plaintiffs-on behalf of themselves and as representatives of 109 similarly-situated employees. On March 2, 1945, the same plaintiffs filed an amendment to the complaint on behalf of 117 additional similarly-situated employees. And on November 5, 1946, the second amended complaint added 48 employees, The claim stated in these complaints was-for the recovery of alleged unpaid overtime compensation and liquidated damages -and,, in addition, attorney’s fees and costs. Each of these complaints charged that plaintiffs- *989 were employed by defendant in three separate shifts .of. eight hours each until September 1944, and thereafter in three shifts of eight and one-half hours each, for which they were paid. Unpaid overtime compensation was claimed throughout the period of employment for time occupied by plaintiffs in reporting for duty, changing uniforms, and receiving equipment before the beginning of their respective shifts, and in changing from uniforms to civilian clothes and turning in equipment at the conclusion of their respective shifts; and for the thirty minutes each day allowed for lunch in the period beginning March 6, 1943, and ending September 16, 1944.

The Portal-to-Portal Act of 1947 became effective May 14, 1947. On June 7, 1947, the defendant moved to dismiss the action “for the reason that the jurisdiction of the alleged cause of action * * * is divested this Court by Section 2(d) of the Portal-to-Portal Act of 1947, for the reason that the activities set forth in the Complaint and Amendments thereto filed herein are not compensable activities as defined in Sections 2(a) and (b) of the Portal-to-Portal Act of 1947.”

In response to this motion plaintiffs filed a supplemental pleading changing their claim for relief. In this pleading they alleged that they were employed for a work day of eight and one-half hours instead of eight hours throughout the time of their employment. They denied that they claimed “or ever have claimed” payment for the time spent by them immediately prior to or immediately subsequent to the eight and one-half hour shift; that throughout the entire period of employment plaintiffs were entitled to compensation for the entire period of eight and one-half hours “under the universal custom and practice in effect at said time, and for many years prior thereto * * * ” and “under the general non-written contract of employment in effect between Defendant and each of said employees.” The prayer of this pleading was that the motion to dismiss be denied and that plaintiffs have judgment “as prayed in their said original Complaint and First and Second Amendments thereto.”

The District Court reserved decision on the motion to dismiss -until the trial on the merits,’and granted defendant time in which to plead further-. In its answer defendant denied the material allegations of plaintiffs’ various pleadings, set up numerous defenses no longer important in the case because abandoned by defendant or overruled by decisions of the Supreme Court before the case came to trial, and repeated by way of defense the provisions of the Portal-to-Portal Act of 1947 relied on in its motion to dismiss.

Both parties amended their pleadings by leave of court during the course of the trial. Plaintiffs’ amendment alleged:

“That it was the custom and practice generally of the above named defendant at the premises of said defendant aforesaid and where each and all of said plaintiffs were employed throughout the entire period involved in this action and particularly throughout the years 1943 and 1944, to pay its employees on the- basis of time and one-half for all hours of actual working time of each such employee in excess of 40 hours in any one work week’; and that all such actual working time was com-pensable under said custom and practice. That, however, defendant particularly throughout the period of March 6, 1943, to,September 16, 1944, wrongfully declined and refused to -consider the activities of these plaintiffs during their alleged one-half hour lunch period as being actual working time. * * * ”

Defendant’s amendments to its pleadings alleged as true the facts set out at the beginning of this opinion, denied the existence of a contract, written or non-written, or a practice or custom requiring payments to plaintiffs other than those made, and alleged that its conduct in not paying the plaintiffs compensation for the thirty-minute lunch period between March 6, 1943, and September 17, 1944, or for any activities performed during said period was in good faith, and that the defendant had reasonable grounds for belief that its omission so to do was not *990 in violation of the Fair Labor Standards Act of 1938, as amended.

At the beginning of the trial plaintiffs abandoned all claims for unpaid compensation except for the thirty-minute lunch period allowed them between March 6, 1943, and September 17, 1944. The real question at issue was whether the thirty-minute lunch period was compensable working time in view of the provisions of the Portal-to-Portal Act of 1947 relied.on by the defendant. On this issue the court found that the thirty-minute period was not compensable by an express provision of the contract of employment, and that the allegations of a practice or custom for compensation for this period in plaintiffs’ pleadings were insufficient to raise the issue. The trial court also found that the defendant adopted the arrangement for a thirty-minute lunch period in good faith and with reasonable grounds for belief that it was not in violation of the Fair Labor Standards Act, as amended. But the trial court concluded that although the lunch period was not compensable working time by contract or custom or practice, it was, nevertheless, compensable working time under the Fair Labor Standards Act of 1938, because plaintiffs during the thirty-minute period were subject to call to active duty in case of emergency, and because during the lunch period plaintiffs were required to wear their uniforms including their caps, and to bear their sidearms or portable telephone as required while on aotive duty.

The court said:

“ * * * When the guards were relieved for lunch they could go either to the nearest cafeteria or to the smoking area. Regardless of where they went, they were on duty and were required to remain in full uniform. The evidence shows that they could not even remove their visored caps or sidearms while eating. If any disturbance arose, the guards were obligated to take the appropriate action even if it meant putting aside their lunch. In certain of the cafeterias there were signal lights which were used to contact the various members of the protective force and guards were, in a relatively few instances, required to leave their meal in response to calls. The guards testified that they were cautioned to watch for employees without badges and that on one or two occasions a guard did take action in that regard during his lunch period. Though the instances where a guard was required to take affirmative action were not relatively great, the court cannot lose sight of the' fact that the mere presence of a guard fully uniformed, anywhere in the plant area, was a deterrent to lawlessness and necessarily beneficial to the defendant.

* * * H= *

“ * * * These firemen carried plug-in telephones, which they were required to take with them to the cafeteria. In some of the cafeterias there were signal lights on the walls which the firemen had to observe during their lunch period. When a certain signal would flash, the fireman beckoned would plug in his phone and answer the call. These firemen were also required to remain in full uniform the same as the others, during the , lunch period.

“ * * * Though the instances in which such affirmative action was required are relatively few, it is nonetheless apparent that the firemen were required to be constantly vigilant and consequently, even during the lunch period, their time was not their own, but belonged to the company.”

The evidence on which the court reached the conclusion stated in its opinion came from only twelve of the more than 250 plaintiffs. None who testified could remember a specific instance of a call to active duty during his lunch period. All admitted that unless called to duty they had an uninterrupted thirty minutes for lunch. All admitted that if the lunch period was temporarily interrupted by a call to duty, the employee could retlirn to lunch at a later period. Only oné witness testified that he was always on duty throughout the lunch period. His testimony was contradicted by the evidence dii behalf of the de *991 fendant supported by defendant’s timekeeping records.

I am unable to find in the facts as found by the court substantial evidence for the inference that plaintiffs were engaged in compensable work during the thirty-minute lunch period allowed them. The facts, in my opinion, do not remove this action from the class denounced by the Portal-to-Portal Act of 1947. This court’s decision in Central Missouri Telephone Co. v. Conwell, 8 Cir., 170 F.2d 641 , is distinguishable on the facts.

In the Conwell case, as stated in the opinion, 170 F.2d at pages 645-646:

“The employees here involved were employed as night switchboard operators. They were on what is termed an eleven hour tour of duty, which required them to go on duty at nine o’clock in the evening and to remain there until eight o’clock the following morning. They were paid for an eight hour tour until 1943. The difference between the time compensated for and the eleven hours was designated as sleeping time and a cot was furnished by defendant and placed in a room near the switchboard so that the operator might utilize such time as her duties permitted in rest or sleep. * * *

“ * * * The number of calls through each of the exchanges varied greatly. The load, as it is called in the record, usually decreased considerably by eleven o’clock or midnight, and thereafter calls were infrequent. Often there were considerable periods of time when there were no calls, and other periods when calls were frequent, requiring constant attention to the board. * * * The operators were not permitted to leave the premises or the room in which the switchboard was located between the time they went on duty at nine o’clock in the evening and the time their tour of duty ended at eight o’clock the following morning. Some nights the operators were able to get several hours of uninterrupted sleep, while other nights they were disturbed. at frequent intervals and ob- . tained very little sleep. In any event they were required to be in the exchange ready to serve. Not only were they in readiness but at least from time to time they rendered very considerable necessary service, for which they confessedly received no compensation. They were not there for the purpose of sleep nor for any purpose of their own, but for their employer’s benefit.”

The facts here are different. Plaintiffs were employed for an eight-hour tour of duty and paid for it. They were allowed to leave their posts of duty to go to the defendant’s cafeteria or to the smoking area or somewhere else in defendant’s plant for a period of thirty minutes and eat lunch. This arrangement was in effect for 21 months. Throughout this time any one of the plaintiffs was subject to call to active duty if, and only if, an emergency arose which required his return to duty. That plaintiffs while eating lunch were required to be alert for possible emergencies requiring their attention loses significance in view of the evidence that none occurred during the 21 months involved iii the action. The fact that the plaintiffs were required to eat in uniforms, fully accoutered, is of no significance, but a necessary incident of their status as guards and firemen. Since it required thirty minutes for the plaintiffs to change from civilian clothes to uniforms and from uniforms back to civilian clothes, it is apparent that another thirty minutes would have been required for this operation in addition to the thirty minutes allowed for lunch.

Read in the light of the facts involved, the Conwell case is not authority for the proposition that the Portal-to-Portal Act of 1947 was directed solely to claims for compensation for strictly preliminary and postliminary activities. The purpose of the Act, as clearly shown in Section 1, is in the absence of a contract or custom requiring compensation to outlaw actions under the Fair Labor Standards Act of 1938 for failure of an employer to pay its employees for time spent on the employer’s premises which never in industry had been regarded by either employer or employee as compensable work time. The Act was directed at certain *992 court decisions which had included such activities in work time as a matter of statutory interpretation. All" that the Conwell case holds is that an employer may not by anything in the Portal-to-Portal Act of 1947 arbitrarily divide a required tour of duty into work time and sleeping time or into compensable time and non-compensable time. The case would apply -here if during the time when plaintiffs were allowed no time off for lunch the defendant had attempted to deduct thirty minutes from their eight-hour tour of duty by arbitrarily classifying it as eating time.

This action is nót a true class' action, but a consolidation for trial of more than 250 separate claims. The action is not one to recover for time spent on calls to duty during an allowed lunch period. If it were the fact that one employee never received the benefit of thirty minutes time off for lunch would not entitle those who did to recover, nor would evidence supporting the claims of some employees support the claims of those who offered no evidence.

The judgment appealed from should be reversed and the action dismissed.