Petition — Fox v. General Telephone Co.

In the

Supreme Court of the Hnited States

October Term, 1978

ANTHONY FOX,

DALE KREMSREITER,

MICHAEL SCHEDLBAUER,

JOHN LUEDTKE and

MARTIN DETTERMING, for and in

behalf of themselves and other

employees similarly situated,

Petitioners,

US.

GENERAL TELEPHONE COMPANY

OF WISCONSIN, A Wisconsin Corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE WISCONSIN COURT OF APPEALS,

DISTRICT III

Larry W. Rader

Attorney for Petitioners

605 First American Center

Wausau, Wisconsin 54401

1-715-845-4278

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT ................

I. THE WISCONSIN COURT OF APPEALS DECISION

CONTRAVENES THE POLICY OF THE FAIR LABOR

STANDARDS ACT AND THE FEDERAL DECISIONS

IN THAT IT DID NOT APPLY THE ESTABLISHED “NO

BENEFIT” RULE BUT A NEW RULE STATING THAT

AN EMPLOYEES ACTIVITIES MAY CONFER “SOME

BENEFIT” TO THE EMPLOYER WITHOUT BEING

COMPENSABLE WORK TIME UNDER THE F.L.S.A.

a. The court further erred in holding that the employees

driving of company trucks with equipment necessary to

perform their work, and transporting supplies was de

ee a ta gas ods ots bese ees

b. The court further erred in determining that F.L.S.A. did

not apply, as a matter of law, not withstanding, the

employees were unde~ the direction, supervision, and

control of GTE, (even subject to being discharged for

company safety rule infractions while driving said

trucks) contrary to the Smith case. (infra) ...........

“¢. The court further erred in applying the Tanaka case

which has been explicitly not followed in the Federal

ee ee ele heees ee sasceecs

Il. THE COURT OF APPEALS ERRED IN NOT CON.-

CLUDING, AS A MATTER OF LAW, THAT 29 USC 254

(b) MADE THE DRIVING TIME COMPENSABLE

UNDER SECTION 1 OF THE CONTRACT WHICH

STATES THAT TIME WORKED INCLUDES TRAVEL

BETWEEN THE DESIGNATED REPORTING CENTER

LE EE

13

12

12

13

a. The court further erred in not applying the rule that any AUTHORITIES

possible ambiguity in the requested GTE contract lan- Cases Cited:

guage change to Section 4 only “shall be strictly con-

strued against the drafter,’ GTE. ................04. 14 a ; Page

| DA&S Oil Well Servicing, Inc. v Mitchell, 262 F. 2nd 552

b. GTE Duty To Explain: The court further erred in not | rn areola nau ws ck kaw bes 12

finding as a matter of law (where the practice had been : ; 7 ;

for many years to pay the employees such travel time Dunlop v City Electric, Inc., 527 F.2d 394 (5th Cir 1976) . 12, 13, 16

and GTE left unchanged the language in Section I and Harmon vu Martin Bros. Container & Timber Products

altered Section 4 which previously only applied to Corp., 227 F. Supp 9. (D.C. Or, 1964) ...............085 15

company school travel, and where GTE knew that cer- P

tain employees were looking for increased interim week- Hoffman v Pfingsten, 50 N.W. 2d 369, 260 Wis. 160 (1951) 14

end travel expenses from the company school to their Schwerman Trucking Co. v Gartland S. S. Co., 496 F.

home), that GTE had an absolute duty to avoid any ee cs cc toctrbcssheesvevessaseiss 15

ambiguity and to explain to the petitioners (or clarify . si

Section I) that previously paid travel wages were being Secretary of Labor v Field, Inc., 495 F2d 749 (1st Cir, 1974) 12, 16

taken Serer ere re rere eee a ee er ees ee eee 15 Smith v Superior Casing Crews, 299 F. Supp. 725 (1969,

Ill. IF SECTION 4 APPLIES TO PETITIONERS THEN, E. D. La.) Tee EER Ce ee eT ae ee 12

UNDER THE REVISED SECTION 4 THE COMPANY Steiner uv Mitchell, 350 U.S. 247, 768 S. Ct. 330 (1956) ..... 11

MUST PROVIDE TRANSPORTATION AND IN VIEW : ea :

OF THE FACT THAT THE EMPLOYEES DROVE THE Tanaka v Richard K.W. Tom, Inc., 299 F. Supp. 732 (D.C.

TRUCK THEY ARE ENTITLED TO COMPENSATION Hawaii, 1969) Se Pe ee oT RETR ECO ee ee 12, 13

UNDER SECTION 254 (b) OF THE PORTAL-TO- Wisconsin Employment Relations Board v Gateway

PORTAL ACT AS CHAUFFEURS. ...........ccecees. 16 Glass, 60 N.W. 2d, 768, 265 Wis. 114 (1953) ............. 14

I ht ds Sek KAN atin wean S 16

Other Authorities

Appendix: Interpretive Bulletin, 29 C.F.R. s 785.14 ................. 12

Exhibit 1 — Court of Appeals Decision .................-. la Restatement 2 contracts, P. 973, Sec. 505 ................ 14

Exhibit 2 — Order of Wisconsin Supreme Court

gg REET TET e TCT TETETECTETEE 8a Federal Statutes

Exhibit 3 — E ts of Petiti Testimony ........... 9a Fair Labor Standards Act 4

— ee ee ee SE Rai i Ne ase a a

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I a a ae aay —

RAISES tata tapes CN Gap RE Enea eRe eR ie —

Sa Nala LIS MER ag Mer Pahoa NN Nd 3

Portal-To-Portal Act

a Sa area er ore a ee re Gere 4

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

ANTHONY FOXx, et.al.,

Petitioners,

US

GENERAL TELEPHONE COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE WISCONSIN COURT OF APPEALS,

DISTRICT III

PETITIONERS, 42 employees of the respondent General

Telephone Company of Wisconsin, a subsidiary of General

Telephone and Electronics, (GTE) pray that a Writ of Certiorari

issued to review the decision of the Wisconsin Court of Appeals,

District III, entered on October 13, 1978. The Order of the Wis-

consin Supreme Court dated January 16, 1979, denied petition-

ers an appeal and review of said Court of Appeals decision.

(MR. JUSTICE STEVENS, on April 10, 1979, signed an order

extending petitioners’ time to file this petition to May 16, 197°.)

DECISION BELOW

Decision of the Wisconsin Court of Appeals, District III has

been reported in Fox vs. General Telephone Company. 85 Wis.

2d 698, 271 N.W. 2d, 161. It appears herein as Exhibit 1,

Appendix.

neti

JURISDICTION OF THIS COURT

The appellants petition to the Wisconsin Supreme Court to

appeal and review the decision of the Court of Appeals was

timely made and said Order of the Court of last resort in

Wisconsin denying the same appears as Exhibit #2 herein.

(The Wisconsin Appeals Court began operating as of Aug-

ust 1, 1978, and pursuant to law, the petitioners’ appeal which

was originally filed in the Wisconsin Supreme Court as Case

No. 77-362, was transferred to the Court of Appeals in District

III for decision.)

This court has jurisdiction under 28 U.S.C. Sec. 1257 and Rule

19 to review said decision of the Wisconsin Appeals Court

which has interrupted and decided a Federal question under

the Fair Labor Standards Act, 29 U.S.C.A. Sec. 206, 207, 216

and 203, and the related Portal to Portal Act, 29 U.S.C.A. Sec.

254 involving the petitioners’ work activity.

QUESTIONS INVOLVED

1. Is the petitioners’ driving of GTE trucks, with company

equipment and supplies without which they cannot work, on

interim weekends between their designated reporting center,

(that exchange to which the employee is permanently

assigned — the home base company garage) and a job site

located in another exchange area, compensable work time

within the meaning of the Fair Labor Standards Act?

iw)

Does the express travel time provision, in the contract

between the CWA* and GTE, Article III, Sec. 1:

“Time worked shall be considered to include travel

time from the designated reporting center to the job

and travel time returning to the designated reporting

center.”

make the interim weekend driving time by the petitioners com-

pensable under 29 U.S.C.A. 254 (b) of the Portal to Portal Act?

*Communication Workers of America

a

3. Not withstanding any other argument, Does the revised sec.

4 of the 1974 contract make petitioners driving time com-

pensable under 254(b) as Chauffeurs as GTE is required to

provide transportation?

NOTE: All issues raised herein were raised by Petitioners in

Court of Appeals.

APPLICABLE STATUTES

29 U.S.C.A. Section 216:

(a) Any person who willfully violates any of the provisions

of section 215 of this title shall upon conviction thereof be

subject to a fine of not more than $10,000, or to imprisonment

for not more than six months, or both. No person shall be im-

prisoned under this subsection except for an offense committed

after the conviction of such person for a prior offense under this

subsection.

(b) Any employer who violated the provisions of section 206

or section 207 of this title shall be liable to the employee or

employees affected in the amount of their unpaid minimum

wages, or their unpaid overtime compensation, as the case may

be, and in an additional equal amount as liquidated damages.

Action to recover such liability may be maintained in any court

of competent jurisdiction by any one or more employees for and

in behalf of himself or themselves and other employees

similarly situated. No employee shall bea party plaintiff to any

such action unless he gives his consent in writing to become

such a party and such consent is filed in the court in which such

action is brought. The court in such action shall, in addition to

any judgment awarded to the plaintiff or plaintiffs, allow a

reasonable attorney’s fee to be paid by the defendant, and costs

of the action***

29 U.S.C.A. Section 207: maximum hours

(a) (1) Except as otherwise provided in this section, no

employer shall employ any of his employees who in any work

week is engaged in commerce or in the production of goods for

commerce for a work week longer than forty hours, unless such

employee receives compensation for his employment in excess

of the hours above specified at a rate not less than one and one-

half times the regular rate at which he is employed;

—

29 U.S.C.A. — 203: Definitions

As used in this chapter

(j) ‘Produced’ means produced, manufactured, mined, han-

dled, or in any other manner worked on in any State; and for the

purposes of this chapter an employee shall be deemed to have

been engaged in the production, manufacturing, mining,

handling, transporting, or in any other manner working on

such goods, or in any closely related process or occupation

directly essential to the production thereof, in any State.

(g) “Employ” includes to suffer or permit work.

29 U.S.C.A. Section 254:

(a) Except as provided in subsection (b) of this section, no

employer shall be subject to any liability or punishment under

the Fair Labor Standards Act of 1938, as amended, the

Walsh-Healey Act, or the Bacon-Davis Act, 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 of the following activities of such employee engaged in

on or after May 14, 1947 —

(1) walking, riding, or traveling to and from the actual

place of performance of the principal activity or

activities which such employee is employed to per-

form, and

(2) activities which are preliminary to or postliminary

to said principal activity or activities,

which occur either prior to the time on any particular workday

at which such employee commences, or subsequent to the time

on any particular workday at which he ceases, such principal

activity or activities.

(b) Notwithstanding the provisions of subsection (a) of this

section which relieve an employer from liability and punish-

ment with respect to an activity, the employer shall not be so

relieved if such activity is compensable by either —

(1) an express provision of a written or nonwritten con-

tract in effect, at the time of such activity, between

such employee, his agent, or collective-bargaining

representative and his employer; or

a an

(2) a custom or practice in effect, at the time of such

activity, at the establishment or other place where

such employee is 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 represenfative and his employer.

STATEMENT OF THE CASE

This is an action for recovery of unpaid wages for travel time

on interim weekends based upon the Fair Labor Standards Act,

(29 U.S.C.A. sec. 216 and 207) and upon Article III of the

collective-bargaining agreement dated January 27, 1974. There

are forty-two petitioners, similarly situated, who have filed

wage claims for driving a company vehicle assigned to him

between the job site and his designated reporting center (home

base - company garage).

In the early 1970’s, defendant, a division of General Tele-

phone and Electronics Company, commonly known as GTE,

undertook a major updating and replacement of its telephone

equipment in Wisconsin. The upgrading of its facilities in-

cluding changing eight party lines to four party lines, central

office equipment replacement, cable replacement among

others, primarily in smaller or rural communities in the

Northern and Central areas of Wisconsin. In order to upgrade

the service in these outlying areas, GTE had to rely on and use

part of the work force, trucks, and equipment maintained at its

major service centers (the designated reporting center of the

employees.) The designated reporting center is the exchange or

center to which the employee is permanently assigned.

EMPLOYEES TRUCK AND EQUIPMENT

Each of the employees is assigned the use of a specific truck

containing tools and equipment to enable him to perform his

work. (R. 76-77, App. Ex. 3)

Each of the petitioners is responsible for the truck and

equipment assigned to him. (R. B1-2, App. Ex. 3)

Each of the petitioners is subject to the GTE supervision and

control at all times, while driving said truck. (R. 146-149)

Each of the petitioners is subject to GTE safety rules and

disciplinary action for infraction that occurs while driving said

truck including dismissal from employment. (R. 155-8)

Each of the petitioners is covered by GTE Workman’s

Compensation and liability insurance.

COLLECTIVE BARGAINING AGREEMENT

Each petitioner is a member of the Communication Workers

of America (CWA) Union and are paid wages, travel time, board

and lodging and other benefits in accordance with the contract

with GTE.

Prior to 1/27/74, a petitioner who was assigned to a work

area away from his homebase for a period of weeks, (e.g. Fox

assigned to the Ric. Lake area for six weeks; travel time, 2!

hours.) was paid wages for driving his truck between Wausau

and Rice Lake on the interim weekends. In other words, he

would leave Wausau on Monday morning at 8:00 am (his

starting time) and return to Wausau on Friday afternoon, 2’ hr.

before his quitting time (4:30 pm). During the week, Monday

through Thursday nights, he received board and lodging

allowance.

1974 CONTRACT — TRAVEL TIME PROVISIONS

On 1/27/74, a new contract was signed between CWA and

GTE. Article III of the old and new agreements, is shown on the

following page.

GTE requested and drafted the 1974 revision of sec. 4.

ARTICLE III OF AGREEMENT DATED 3/9/73

TRAVEL TIME

SECTION 1. Time worked shall be considered to include

travel time from the designated reporting center

to the job and travel time returning to the desig-

nated reporting center.

pa, TR

SECTION 2. When an employee travels from one job location

to another in a conveyance supplied by the

Company, such travel time will be considered to

be the same as productive work time.

SECTION 3. When an employee travels from one job location

to another on a public conveyance, travel time

outside of the normal scheduled hours generally

will not be paid for; however, the Company will

pay certain board and lodging expenses in-

curred by the employee during such travel time.

SECTION 4. Employees traveling to Company schools with-

in the operating area of the Company will travel

on Company time for the initial trip to the

school and the last trip from the school.

ARTICLE III OF AGREEMENT DATED 1/27/74

TRAVEL TIME

Sections 1, 2 & 3 remain the same. However, Section 4 was

changed to read as follows:

SECTION 4. Employees traveling to Company schools or a

job site w?‘hin the operating area of the Com-

pany will travel on Company time for the ini-

tial trip to the school or job site and the last trip

from the school or the job site. Transportation

will be provided by the Company for the interim

weekend(s) unless the employee has elected the

reimbursement option provided in Article

XXIII, Section 1(b)* Employees will travel on

their own time and expense.

*NOTE: The reimbursement option (per diem) is notinvolvedin _

any of the Plaintiffs’ claims. Rec. p. 85

There is no dispute that the phrases “time worked?’ and

“Company Time” as used in the contract are the same as “pro-

ductive work time?’

(R. 426)

Rec. p. 430-1 Mr. Kolb

Q. You’re also aware, in 1974, when you were nego-

tiating or preparing the language for the new contract,

that Section 4, as it appeared in the 1972-1973 con-

tract, Section 4 under “Travel Time?’ that that only

related to the school at Portage?

A. That’s correct.

Q. And it is also true, is it not, Mr Kolb, that when

the employee is assigned, or was assigned to the school

at Portage, that if he was there for several weeks, that

that was also considered his job site for the period that

he was at Portage?

A. I think you could call it his job site.

Mr. Steffen, the local union president, testified that there

were 2 meetings held before ratification. At the first meeting

some of the employees questioned whether the new language

affected their interim weekend driving. Mr. Steffen contacted

the CWA bargaining committee and was advised that the re-

vised section 4 only applied to company school travel. Steffen’s

uncontroverted testimony is this information, “*** was coming

from the company.” (R. 448)

In March of 1974, even the Company supervisors did not

apply the revised Section 4 to plaintiff's interim weekend

travel. This prompted a letter from Mr Benjamin (former

personnel director) of GTE to his Supervisors clarifying the

company’s interpretation of the revised Section 4 in which he

states: (R. 424)

“We recognize there may have been some errors in

communication previous to this advice regarding this

change in agreement terminology.”

GTE POSITION ON TRAVEL TIME

AFTER MARCH, 1974

After March, 1974, GTE only paid for the first and last trip

between the employee designated reporting center (homebase)

and job site, and did not pay for the interim weekend trips.

Under the new GTE directive, the board and lodging al-

wa

lowance, Monday through Thursday remained the same with

no board or lodging provided Friday, Saturday, or Sunday.

However, the employee, on Friday on an interim weekend,

would have to leave at the end of his workday (4:30 pm) and

drive the Company truck to his designated reporting center.

The employee had to leave immediately after 4:30 pm. No other

“transportation” was provided. (R. 146). He was obliged to

comply with all Company safety rules and regulations, and

subject to disciplinary and discharge action for noncompliance

while driving said truck. (R. 155-7) He further had to return the

truck to the Company garage at his homebase. On Monday

morning, he was required to pick up his truck at the homebase

and drive to the work area before 8:00 am, his normal starting

time. He could not return without his truck! On this subject, Mr.

Kolb, a GTE personnel director, and Mr. Gajewski, the GTE

foreman testified as follows:

(Record page 443 Mr. Kolb’s testimony)

Q It is true, is it not, Mr. Kolb, that each of the employees,

while driving the company truck on the interim weekends,

would be obligated to comply with the company’s safety rules

and regulations?

A Yes, they would.

Q_ It is also true that each of the employees could not take

the company truck home?

A That’s right.

Q That the company truck would have to be returned to the

company garage — the designated company garage?

A Yes.

Q_ Isn’t it also true that while the truck was at the company

garage during the weekend, that it would be available for

greasing and oiling and cleaning, and so forth?

A Im sure that it would be available for that.

Q And isn’t it also true that the employee would be required

to report to the company garage on Monday morning and pick

up his truck to drive to the work site on interim weekends?

A_ Yes, he would.

tin

RESTOCKING AT WAUSAU

The petitioners routinely picked up supplies in a “plastic

bag” at the Wausau Garage on Monday morning on their re-

turn to the-job site. Also:

“We were informed copper, any old phones, or ringers

were to be returned to Wausau on Friday evening”’ (R.

545, App. Ex. 3)

[See also testimony of Karau — Rec. 542; Schedlbauer —

(R. 536-539); Kremsreiter — (R. 531-4), Fox — (R. 76-77 App.

Ex. 3)]

The petitioners all testified the practice of washing, gassing,

and resupplying their trucks remained the same after 1/27/74.

(Rec. 147, Mr. Gajewski, GTE foreman)

Q Did the employee have to return the truck immediately

after the end of his work day to Wausau?

A Well, he could say at 4:30 if he wanted to go eat or havea

cup of coffee or something, he could do that.

Q But other than the time alloted for his meals or rest

period, he would have been required to return the truck at the

end of the day to the Wausau garage?

A Yes.

Q That’s on the interim weekend?

A That’s correct.

(Record Rec. 158-9) Mr. Gajewski)

Q You said before that the employee would have to pick up

his truck on Monday morning and return to the job site?

A On his interim weekend, if he drove his truck down,

yes, sir.

Q And that is because the truck was needed in order to

perform his job function at the job site?

A Well, that was his decision to use.

dettion

Q You are not answering my question. But the reason he

was required to pick up his truck and return it to Eagle River

was because the truck was assigned to him, it was necessary for

him to use in the performance of his work duties.

A Yes, sir.

Q_ Inother words, it had all the equipment that he normally

would use in the performance of his work duties?

A That’s right.

Q And he was responsible for the equipment in the truck?

A Yes, sir.

DRIVING RESPONSIBILITIES AFTER 1974

The driving work responsibilities remain the same after 1974

for all the plaintiffs. The only change was not in the work

practice, but when the driving took place. Mr. Kolb agreed both

the assigned work truck and its equipment and material were

necessary for plaintiffs to perform their job function.

ALL PETITIONERS SIMILARLY SITUATED

All of the petitioners have filed consents to be a party to the

suit — all being similarly situated. Each wage claim received in

evidence represented a claim for driving a company vehicle

between the job site and the employee’s designated reporting

center (home base - company garage) — a trip of 3 hrs. or less

where GTE did not authorize lodging on the week end. The total

wage claims exceed $37,000.

REASONS FOR GRANTING THE WRIT

I. WISCONSIN DECISION THWARTS NATIONAL PUR-

POSE OF FAIR LABOR STANDARDS ACT IN AP-

PLYING SOME BENEFIT RULE.

This appeal involves an important question under both the

Fair Labor Standards Act and the related Portal to Portal act.

The last major pronouncement on these acts by this court was

in 1956, Steiner v Mitchell 350 US 247, 76 S.CT: 330. Since 1956

there has been a case by case analysis and development of the

law in the lower Federal courts.

In 1958, the 10th Circuit, in DA & S Oil Well Servicing, Inc. v

Mitchell, 262 F 2d 552 applied the “integral and indispensable”’

rule to the driving of pickups used to transport necessary

equipment, as being part of the principal activities of the

employee. In Smith v Superior Casing Crews, 299 F. Supp. 725,

(1969) (E.D.La) the court applied the supervision and control

rule, i.e., “whether or not the employee is under the supervision,

direction, or control of the employer at the time of the activity.”

In 1974, the lst Circuit, in Secretary of Labor vu Field, Inc., 495

F. 2nd 749, held travel time compensable applying the rule of

“any work of consequence performed by an employee.’ citing 29

C.F.R. Sec. 790.8 (a). stating:

p. 751 “... It is irrelevant that Audet and the other employ-

ees might have reached the jobsite by personal trans-

portation or that the employer might have stocked the

jobsite without the use of the trucks. The activity is

employment under the Acct if it is done at least in part

for the benefit of the employer, even though it may

also be beneficial to the employee. “(T)he crutial

question is not whether the work was voluntary but

rather whether the (employee) was in fact performing

services for the benefit of the employer with the

knowledge and approval of the employer.’

The court also indicated in a footnote the benefit to the com-

pany under circumstances where the employee may be

rendering services as a chauffeur. The 1st Circuit explicitly

refused to follow the rule in Tanaka vu Richards K.W. Tom, 299 F.

Supp. 732 (D.C. Hawaii, 1969).

Recently the 5th Circuit, in Dunlop v City Electric, Inc., 527

F. 2nd, 394 (1976), applied the “no benefit to the company”

rule stating:

p. 398 “This directive to construe liberally the terms ‘prin-

cipal activity or activities’ to encompass ‘any work of

consequence’ was reiterated by the President in his

Message to Congress on Approval of the Portal-to-

Portal Act and has been followed by the majority of

courts interpreting the two statutes. Decisions con-

struing the Portal-to-Portal Act in conjunction with

the F.L.S.A. make clear that the excepting language of

=|

#4 was intended to exclude from F.L.S.A. converage

only those activities ‘predominantly ... spent in (the

employees’) own interests? Jackson uv Air Reduction

Co., 6 Cir. 1968, 402 F. 2d, 521, 523. No benefit may

inure to the company. Blum v. Great Lakes Carbon

Corp., 5 Cir. 1969, 418 F. 2d 283, 287 The activities

must be undertaken ‘for (the employees’) own con-

venience, not being required by the employer and not

being necessary for the performance of their duties for

the employer. Mitchell v Southeastern Carbon Paper

Company, 5 Cir, 1955, 228 F. 2d 934” (emphasis

added).

THE WISCONSIN SOME BENEFIT RULE

The Wisconsin Appeals Court misapplied and misinter-

preted the Dunlop case and the policy behind the F.L.S.A. by

stating that the Dunlop Court, (App. Ex. 1, p. 5a)

“clearly recognized the principle that an employer may

receive some benefit and an employee still not be

entitled to compensation under the Act.’

The above commentary is directly contrary to the stated pur-

poses of the F\L.S.A. as set forth in Dunlop.

Also, the Wisconsin Court not only relied on the more con-

servative Tanaka rule, but misapplied that case. In Tanaka the

employee (1). was not required to report to the employer’s yard,

(2). could take the vehicle home if he so desired, and (3). the

vehicles were solely used for transportation and contained no

equipment. Of greater significance, the Wisconsin Court com-

pletely ignored the control or direction rule in Smith, supra.

As this court is aware, this country went through a severe

economic recession in 1974. Employers were scrambling to find

ways of cutting expenses. In the class struggle, it does not seem

unreasonable that, management, in an endeavor to cut back on

costs, attempted to “pigeon-hole” the travel activity of the

petitioners into the Tanaka case.

This is a resounding case where GTE, having to use its

equipment and labor force in the Wausau area to update its

facilities in outlying areas, not only had the benefit of having

cosets

its trucks back in Wausau on the weekends for emergency

service, reassignment, for repairs, gassing, washing, etc. but

avoided paying the employees any transportation expenses or

providing a chauffeur to them for that purpose.

II. THE WISCONSIN DECISION IGNORES THE EX-

PRESS PROVISIONS OF SEC. 1 CONTRARY TO 29

U.S.C. 254(b).

Article III, Section 1 of the employment contract EX-

PRESSLY states:

“TIME WORKED SHALL BE CONSIDERED TO IN-

CLUDE TRAVEL TIME FROM THE DESIGNATED

REPORTING CENTER TO THE JOB AND TRAVEL

TIME RETURNING TO THE DESIGNATED REPORT-

ING CENTER”

The words of the contract are clear and unambiguously

expressive of the GTE contract obligation.

Wisconsin Decision Contrary to Law

The Wisconsin court concluded that the revised Sec. 4 of the

1974 contract as prepared and proposed by GTE, changed

Sec. 1 in “plain and unambiguous” terms. This legal conclu-

sion is contrary law!

“Where changes in the language of a contract are re-

quested by one party ANY possible ambiguity must be re-

solved against the party requesting the change. Hoffman

v Pfingston, (1951) 260 Wis. 160, 50 N.W. 2d 369,

Restatement 2 Contracts, p. 973 Sec. 505, (emphasis

added). See also Wisconsin Employment Rel. Bd. v

Gateway Glass, 60 NW 2d, 768, 770, 265 Wis. 114, (1953).

This rule governed GTE in 1974. It’s duty was to avoid any

possible ambiguity — a greater burden than mere plain terms

usage. To permit GTE to use Sec. 4 to exclude payment of in-

terim week-end travel to the plaintiffs would be a subterfuge,

for:

(a) Section 4 makes no mention whatsoever of travel be-

tween the designated reporting center and the job.

(b) The prior Section 4 did not provide transportation to and

from the school and the employee’s home on interim

week-ends. The natural employee interpretation is that

this change increased transportation expenses — not a

forfeiture of benefits.

The practice prior to 1974 was that petitioners’ interim

weekend driving time was work time. Now GTE not only argues

that revised sec. 4 changed sec 1, BUT the prior practice which

is compensable under 29 U.S.C. 254(b) (2). In Harmon v Martin

Bros. Container & Timber Products Corp. 227 F. Supp. 9 (D.C.

Or.) the court allowed travel pay where for 5 years the

employees had been paid under practical interpretation of bar-

gaining agreement. Here, Petitioners had been paid for their

travel time since the early 70’s.

In view of the past driving time practice, and an employee’s

desire to have increased school travel expenses (particularly

where GTE admits that the school was also considered the

employee’s job site), compounded by the fact that Sec. 4 makes

no reference to a designated reporting center or Sec. 1, the con-

flict or ambiguity should have been readily apparent to GTE.

Thus the law places a heavy duty on the drafter of change in

contract language to avoid any ambiguity. Consequently,

GTE’s failure to explain that the new language was intended to

take away wage benefits, which it had previously paid by

practice and contract, estop it from so arguing now. The 7th

Cir., in Schwerman Trucking Co. v Gartland Steamship Co. 496

F. 2d. 466 (1974) in a Wisconsin case, stated, 475:

... Also, where different interpretations are possible, the

preferred interpretation is that which is against the

party who prepared the instrument.

GTE DUTY TO EXPLAIN

As a matter of law and in the interest of fairplay GTE had the

absolute duty to inform the petitioners that they would be

losing substantial driving time travel pay urider the new sec. 4.

Again, the lower court erred in ruling to the contrary.

As the President’s message to Congress on the Portal to

Portal passage (cited in Duniop, supra, in a footnote, p. 398)

stated:

... Iam sure the courts will not permit employers to use

artificial devices such as the shifting of work to the

beginning or the end of the day to avoid liability under

the law.

III. APPEALS COURT ERRED IN NOT FINDING THAT

THE REVISED SEC. 4 OF THE 1974 CONTRACT MADE

PETITIONERS DRIVING TIME COMPENSABLE AS

CHAUFFEURS.

IF it is determined that interim weekend travel time is not

work time under Sec. 1 of Art. III, and IF itis further determined

the driving is work of no benefit or defacto, a part of the regular

or principal employment), THEN the question remains: IS the

driving compensable under 254 (b) since under Sec. 4 Art. III of

the contract, because the company must provide trans-

portation?

The plaintiffs submit that the word transportation is not

equated with the word vehicle; that GTE must not only provide

a vehicle but a driver to transport the plaintiffs on the interim

weekend. Consequently the petitioners were performing ser-

vices as a “chauffeur”? GTE had to provide both driver and

vehicle.

Consequently, even granting the GTE interpretation of Sec.

4, the interim weekend “driving time” is compensable under

254 (b). See FIELD, supra p. 752.

CONCLUSION

For the above reasons petitioners prayer for a Writ should

be granted. .

Respectfully Submitted

Larry W. Rader

Attorney for Petitioners

rT

—la—

APPENDIX

EXHIBIT I

77-362

STATE OF WISCONSIN : IN COURT OF APPEALS

DISTRICT III

ANTHONY FOx,

DALE KREMSTREITER,

MICHAEL SCHEDLBAUER,

JOHN LUEDTKE and

MARTIN DETTERMING, for and

in behalf of themselves and other

employees similarly situated,

Plaintiffs-Appellants,

VU.

GENERAL

TELEPHONE COMPANY

OF WISCONSIN,

a Wisconsin Corporation,

Defendent-Respondent.

APPEAL from a judg-

ment of the circuit

court for Marathon

County, the Hon.

Howard Latton, pre-

siding, dismissing the

plaintiffs’ complaint

following trial to the

court.

Affirmed.

BEFORE Dean, P. J., Donlin, J. and Foley, J.

FOLEY, J.

——

Plaintiffs are forty-two employees of defendant, General

Telephone Company, all of whom were subject to a collective

bargaining agreement between the company and Communica-

tion Workers of America (CWA). They commenced this action

for back wages for travel time in company trucks on interim

weekends to and from the Wausau garage and outlying job

sites.' Their claim is based on the terms of the collective

bargaining agreement and on the provisions of the Fair Labor

Standards Act. The trial court found the plaintiffs were not

entitled to compensation for such travel time either under the

contract or the terms of the FLSA.

The collective bargaining agreement dated January 24, 1974,

which governs this dispute, provided:

TRAVEL TIME

Sec. 1. Time worked shall be considered to include

travel time from the designated reporting center to the

job and travel time returning to the designated re-

porting center.

Sec. 4. Employees traveling to Company schools ora

job site within the operating area of the Company will

travel on Company time for the initial trip to the school

or job site and the last trip from the school or job site.

Transportation will be provided by the Company for

the interim weekend(s) unless the employee has elected

the reimbursement option provided in Article XXIII,

Section 1 (b). Employees will travel on their own time

and expense.

The language of Sec. 4 was changed by this agreement. It

previously read:

Sec. 4. Employees traveling to Company schools

within the operating area of the Company will travel

on Company time for the initial trip to the school and

the last trip from the school.

—Jja—

Plaintiffs argue they should be paid for interim weekend

travel time under Sec. 1 regardless of Sec. 4. They claim the

agreement is ambiguous and subject to the interpretation that

it left the previous travel time agreement unchanged. They also

argue it would be a “subterfuge” to use Sec. 4 to exclude

payment because the employees did not understand what the

agreement said and thought they would be paid for interim

weekend travel time. This argument incorrectly assumes that

there is some duty on the employer to make sure the employees,

represented by CWA, understood what the agreement meant.

We find that Sec. 4 specifically changed the former agree-

ment in plain and unambiguous terms. It is our duty to construe

the agreement as it stands giving effect to the plain meaning of

the language used. The change in Sec. 4 of the 1974 agreement

provides employees will travel on their own time. Travel time to

and from job sites on interim weekends is therefore not

compensable under the collective bargaining agreement. As to

the “subterfuge” charge, the trial court found plaintiffs had not

met the burden of proof necessary to estop the company from

using Sec. 4 to deny travel time payments. This finding is not

clearly erroneous and contrary to the great weight and clear

preponderence of the evidence and therefore must be sustained

on appeal

It is conceded, however, that if the provisions of the collective

bargaining agreement are in conflict with the FLSA, the Act

controls. The FLSA requires time and one-half for work over 40

hours per week with certain activities being excluded. The

exclusion, 29 USCA Section 254 provides:

(a)... (No) employer shall be subject to any liability or

punishment under the Fair Labor Standards Act... on

account of the failure of such employer to pay an

employee ... overtime compensation, for or on account

of any of the following activities of such employee ...:

(1) walking, riding, or traveling to and from

the actual place of performance of the prin-

cipal activity or activities which such em-

ployee is employed to perform, and

—4da—

(2) activities which are preliminary to or post-

preliminary to said principal activity or activ-

ities, which occur either prior to the time on

any particular workday at which such em-

ployee commences, or subsequent to the time

on any particular workday at which he ceases,

such principal activity or activities.

In considering these exclusions, the United States Supreme

Court stated in Steiner v. Mitchell, 350 U.S. 247, (1956) that they

were not intended to deprive employees of the benefits of the

FLSA for activities performed before and after regular hours of

work where the activities were an integral part of and

indispensable to their principal activities.

In DA&S Oil Well Servicing, Inc. v. Mitchell, 262 F. 2d 552

(10th Cir. 158), the court recognized the difficulty in fixing any

definite standard for determining what activities of an

employee performed before and after hours of work were an

integral part of and indispensable to his principal activities.

The court concluded that each case must be decided upon its

particular facts. The court then held compensable the driving

of trucks to and from job sites because they carried equipment

without which the principal activity could not be performed.

The court added, however, that if the trucks were used solely for

the transportation of employees to and from the principal place

of work, then the employees would be “riding or traveling”

within the exclusion.

Thus, the DA &S case makes clear that where the time spent

is solely for the benefit of the employees, the exclusion applies.

The question not answered is whether the exclusion can apply

if there is any benefit to the company, no matter how small.

In Dunlop v. City Electric, Inc., 527 F. 2d 394 (5th Cir. 1976),

the court addressed this question. The trial court in Dunlop had

found some of the employee activities included within the

definition of “principal activity” and the others not. It con-

cluded that the time spent on activities within the definition

were minimal. Relying on prior case law defining principal

activity as “any work of consequence performed for an em-

ployer,’ the trial court concluded that the work required so little

employee time as to be de minimis and therefore not compens-

able. It was not work of consequence.

—5a—

The work involved in Dunlop included filling out daily time,

material, supply, and cash requisition sheets; checking job lo-

cations; removal of trash from trucks accumulated the previ-

ous day; loading of trucks with the materials needed for the

day’s jobs; fueling trucks; and picking up plans for the day’s

jobs. The court on appeal construed the term “principal

activity” liberally and found all of these activities included

within the definition of “principal activity.” Also, all clearly

provided a benefit to the employer. The court then remanded the

case to the trial court for further consideration of whether all of

the activities required so little time as to be de minimis. By this

remand, the court clearly recognized the principle that an

employer may receive some benefit and an employee still not be

entitled to compensation under the Act.

In the instant case the employees claim relies substantially

on the fact they provided a number of benefits to the company

by driving company trucks back and forth between the Wausau

garage and outlying job sites. Bags of supplies left in the trucks

during interim weekends while the trucks were parked at the

Wausau garage were taken to job sites on Monday mornings.

Trucks were on occasions gassed or washed by other employees

during the interim weekends. If repairs were needed on trucks

brought in on Friday afternoon, another truck would be taken

on Monday morning. Sometimes waste that could not be

disposed of at the job site would be returned in the trucks and

would be unloaded over the weekend. Also, the trucks used by

the employees contained equipment necessary to the

employee’s work at the job site.

Many of these activities, such as the washing or gassing of

the trucks, required no time expenditure by the employes. In

this respect, they differ from the activities considered in

Dunlop. Still, some benefit was realized by the company as a

result of having the trucks at the Wausau garage so they could

be washed or gassed. However, employer benefit, not requiring

any employee time, would not under Dunlop make the pre-

ceding travel time compensable. Benefit to the company, there-

fore, is not the sole consideration in determining compensabil-

ity. To be compensable, the test is whether there was “work of

consequence” performed “for the employer.”

—§a—

In this case the only work which conceivably was of

consequence and performed for the employer was the transpor-

tation of the trucks from one location to another. The amount of

time consumed in performing any of the other tasks such as

removing waste from the trucks is not established in the record.

However, it is clear that such time would be de minimis and

would not qualify as work of consequence. Regarding the

transportation of the trucks, the trial court found this to be of no

benefit to the company. This finding was based on the fact the

trucks and equipment would have remained at the job sites

following the initial trip had they not been used for the sole

convenience of the employees in traveling back and forth.

Additionally, the employees were not required to drive the

trucks and could elect to travel in their personal vehicles. The

trial court further found that the driving of the trucks was not

motivated by any company purpose except the fulfillment of

the company provided travel requirement in the collective

bargaining agreement.

The driving of the trucks was therefore not an integral part of

or indispensable to the principal activity or activities of the

employees. These findings are not clearly erroneous and

against the great weight and clear preponderance of the

evidence. On the basis of such findings, the riding or traveling

on interim weekends is within the exception to the payment

requirements of the Fair Labor Standards Act.‘

At oral arguments plaintiffs cited two additional cases,

Secretary of Labor, U.S. Dept. of Labor v. E. R. Field, Inc., 495

F2d 749 (1974), and Marshall v. R&M Erectors, Inc., 429 F.

Supp. 771 (1977). The Field case is distinguishable because

there was a finding that the essential purpose of the travel in

company trucks was to transport tools and supplies to various

job sites. The Marshall case held that where “work of con-

sequence” is performed before travel commences the travel

becomes subject to overtime pay. No doubt the same would be

true where “work of consequence” was performed after the

travel. However, the record in the instant case does not show

any such “work of consequence”

The conclusion of the trial court that the travel of the plaintiff

employees on interim weekends in company vehicles con-

stituted “riding or traveling” to and from the actual place of

—{a—

performance of their principal activity or activities which they

were employed to perform within the meaning of 29 USCA 254

(a), and that such travel time was not compensable, is not

clearly erroneous and against the great weight and clear

preponderance of the evidence.

By the Court: Judgment affirmed.

Recommendation: Publication.

APPENDIX

1 An “interim weekend” is a weekend between work weeks

following the first trip to and last trip from a job site away

from the Wausau headquarters.

2 Hanz Trucking, Inc. v. Harris Bros. Co., Crestline Division,

29 Wis. 2d 254, 138 N.W. 2d 238 (1965).

3 Stevens Construction Corp. v. Carolina Corp., 63 Wis. 2d

342, 217 N.W. 2d 291 (1974). °

4 Inthecaseof Tanaka v. Richard K. W. Tom, Inc., 299 F. Supp.

732 (D.C. Hawaii, 1969), a case similar on its facts to the

instant case, the riding or traveling was also found to be

within the exclusion.

—ska—

EXHIBIT 2

Office of the Clerk

SUPREME COURT

STATE OF WISCONSIN

Madison, January 16, 1979

To:

Larry W. Rader

500 Third Street

Suite 605

Wausau, WI 54401

From:

Axley, Brynelson, Herrick & Gehl

122 West Washington Avenue

Madison, WI 53703

The court today announced an order in your case as follows:

No. 77-362 — Anthony Fox, et al. v. General Telephone Com-

pany of Wisconsin, a Wisconsin corporation

The court having considered the appellants’ petition to

appeal pursuant to sec. 808.10 and Rule 809.62,

IT IS ORDERED the petition is denied.

Marilyn L. Graves

Clerk of Supreme Court

RECORD PAGE

69

—9Ja—

EXHIBIT 3.

EXCERPTS OF PETITIONERS

TESTIMONY ON WORK ACTIVITY

SUMMARY OF TESTIMONY

(Only Pertinent Parts Summarized)

Between Shown Record Pages

Anthony Fox Testified as Follows:

DIRECT EXAMINATION BY MR. RADER:

My name is Anthony Fox, I live at Route #3,

Wausau and I am presently an I & R Installer. During

the period in question I was a Central Office Installer

for General Telephone Company. I have been employed

for GTE for 8% years. My job consists principally of

installing Central Office switching equipmenv and

exchanges, carrier equipment between one exchange and

another including repeater lines. My designated head-

quarters, or home base, was Wausau and I operated out

of the Wausau garage. During the early 1970's there was

a program by GTE to upgrade facilities in Wausau and

the northern area of the state which included converting

over to all four-party lines or less including single

or two-party lines. I believe this was done pursuant

to an order of the Public Service Commission. This

change-over started in early 1969. Basically the work

force from Wausau was dispatched to service the outlying

area change-over. The work force from Wausau was used

to perform change-overs in Woodruff, Eagle River, Rice

Lake, Antigo, and Rhinelander. In other words, the

North Central area of the state. Prior to 1/27/74, the

plaintiffs were paid wages in accordance with a contract

between GTE and our union, CWA, and when we were assigned

to an area such as Rice Lake prior to 1/27/74 say for a

period of 6 to 8 weeks I would report at 8:00 a.m. to the

Wausau garage to pick up the equipment needed for the

job, drive to the job site in an assigned truck where the

truck contained equipment to perform my duties including

personal tools, screwdrivers, wrenches, a large toolbox,

various testing gear, spare equipment, and replacement

equipment. Most of our jobs consisted of equipment in

one exchange and equipment in another exchange what we

call repeater lines connecting the two exchanges. We

installed equipment in both exchanges. We install equip-

ment on the repeater line, and we're expected to test

all of the equipment so I would be using the truck to

drive back and forth from the exchanges, haul the equipment,

install the equipment, and for testing of the repeater

line. The testing equipment did stay with the truck.

RECORD PAGE

73

76

113

Prior to 1/27/74, I was paid wages starting

at the time I reported to the Wausau Garage. In other

words, I was paid for my driving time to Rice Lake.

Also I returned to Wausau on Friday on company time.

We returned and were expected to be at the garage at

4:30 where I returned the truck and its equipment to

the Wausau Garage. We were expected to keep our trucks

clean - washed, gas tanks full, make sure the oil was

changed and other maintenance as required. I believe

this work was done at the company garage on a Saturday

shift or in the evening. On January 27, 1974, a new

contract was entered into between CWA and GTE, and after

the contract was entered into, I was informed by GTE

personnel that I would now travel on my own time and

expense. I was directed to take a truck to the job

site at Rice Lake. As far the equipment, the tools

and the practice, my responsibility remained the same

after 1/27/74 as it had been prior to that day. Now

after 1/27/74, I was directed to return the truck and

equipment that was assigned to me each Friday to the

Wausau Garage.

Exhibit #21 is a wage claim which represents

weekend travel in which I drove the truck between the

job site and the Wausau Garage. On Monday morning,

depending on where I was assigned, immediately after

the new contract I was working in Stone Lake, Spring

Brook or the Rice Lake area I had to be at the garage

by 5:30 which would permit me to be at the job site at

the start of my work day, 8:00 a.m. When I reported

to the Wausau Garage, I had to make sure that I had all

the equipment I needed, test gear had to be checked out,

and if we needed particular testing equipment, I'd have

to check that out and make sure I had my complete set of

tools to do the job for the required week. After 1/27/74

I was told that it was my responsibility to make sure

that the truck and equipment got to the job site. as I

ordinarily worked myself there was no way I could take

my personal vehicle. I had to take the company van so

I had my equipment. I was never authorized any mileage

for driving my personal vehicle on interim weekends. I

was told that mileage was not paid for personal vehicles

as long as there was a company vehicle available. With

(Emphasis added)

RECORD PAGE

530

531

532

—lla—

144

SUBSECTION (d) TO INTRODUCE PARTS IN CLARIFICATION

AT THE TIME THE PLAINTIFFS READ THAT PARTS OF MR.

GAJEWSKI'S DEPOSITION ADVERSELY INTO THE RECORD.

REBUTTAL BY PLAINTIFFS

Dale Kremsreiter recalled: I was an installer during

the entire period covered by my wage claim and Mr.

Gajewski was my foreman for the complete period in

question. There may have been a time when I was on

loan to another supervisor for a short period or a

couple of days. On interim weekends the resupplying

of our trucks was done this way. Our trucks are

originally stocked out of the supply location in

Wausau, and when we go to an out-of-town area, if

it's a major conversion, say such as Lac du Flambeau,

they do have a supply center and there are some

supplies brought in there. But, we're still responsible

as individuals to supply our truck and keep it stocked

to the company specifications, and to do this we're

still required to fill out individual supply sheets

and either turn them into Mr. Gajewski, who many

times sent them into Wausau with a courier or some-

thing, or we would use some other means of notifying

supply of the items needed, and on Monday mornings

when we went in to pick up our vehicle, there would

be either a big plastic bag -- looked like a big

garbage bag -- or a box, or just a stack of supplies

with our truck number, or our specific number. Like

at present, my number is 108, which would be on this,

and we would put that in our vehicle and go to the

job site. Accessories such as screws and minor items

were considered a truck stock and these type of items

were items that we, as individuals would order and

those items we would pick up Monday mornings in a

sack with either our truck number or our employee

number on them, put them in our vehicle, and commence

towards the job site. Very often on Friday when we

left the job site there would be a lot of old refuse -

old wire - and other items of discard, and when we

would get in on Friday evening we would unload the

truck -- there are big garbage bins in the Wausau

area where we parked our vehicles -- or Monday morning

before we went to our job site, because Mr. Gajewski was

very strick on keeping good housekeeping. I super-

vised the filing of the claims and reviewed all the

records which are in the three boxes in court. I

spent many hours doing that and the records, which

GTE had provided, cover each employee for the period

RECORD PAGE

533

534

536

—1l2a—

145

1974 to 1976, and I reviewed each of those records.

To the best of my ability I saw to it that the

employee filled out the exhibit and followed the

general format. When we filled out the claim, the

particular interim weekend when there would have been

an emplovee on per diem, this was not put on the

claim. If it is, it may have been a mistake, and

then we did remove it. This is not the case. The

time sheets would clearly have stated if we had a

code 96 on Friday evening of an interim weekend -

a code 96 makes reference to the per diem allowance -

and those were not put on the claim. All claims

involve a situation where the employee was

receiving board and lodging during the week. There

were very many instances, if our truck did require

some maintenance and there was another vehicle in the

garage from another member of the crew that may be

temporarily assigned to -- like at the times we had

some working in the assignment department -- where

we would return on our own time on Friday evening,

leave our vehicle at the garage for servicing during

the week, and return with a different truck Monday

morning. We would change our tools either Friday

evening or Monday morning - our personal tools like

climing equipment and toolboxes - and return to the

job site with a different vehicle. I was not

reprimanded for not bringing the truck back on interim

weekends, but I got a reprimand for arriving at the

job site late on a Monday morning, about 10 or 15

minutes. I was told not to let it happen again and

I told Mr. Gajewski that it was quite a long drive and

I preferred to have my own personal vehicle under the

road conditions, and I said, "If this is the case,

if I'm going to get chewed out for coming late on

Monday mornings, I would like to use my own vehicle

and not use my company vehicle,” and he said, "No,

if you don't use your company vehicle to return to

the job site you may as well not return either.”

NO CROSS EXAMINATION.

MICHAEL SCHEDLBAUER RECALLED. DIRECT EXAMINATION

BY MR. RADER.

During 1974 through 1976 we would

drive back and forth on our own time on the interim

weekends. There were many times when we were in a

remote area where there wasn't a lot of facilities

to dispose of junk wire, say, and general garbage,

and we were expected -- our supervisor, who at that

time was Mr. Gajewski, who is a very firm believer

in good housekeeping - says always keep your area

RECORD PAGE

537

539

544

—l3a—

146

cleaned up and that - and most weekends we brought

back, well, stuff that there really wasn't a

convenient place to dispose of up there. Also with

respect to supplies, on a major job they set up a

supply depot, or whatever you want to call it, where

they ordered the major supplies for the jobs, but

on the same token, we were responsible for our own,

individual truck and keeping our truck up to stock,

which we did in various ways. Mr. Gajewski did call

directly to supply and have whatever we requested sent

up, but there were many times when -- what they would

generally do is thay had a big - I don't mean to

refer to it as a garbage bag, but that's what it looked

like - it's a big cellophane bag, and they put your

name or truck number on that and that would be left

down at our garage where we brought our truck on

Friday night, and then on Monday morning we'd pick

up the garbage bag of supplies and take it back with

us. On the interim weekend, maintenance was performed

on our trucks. Good housekeeping meant a clean truck,

and that meant washed outsides. We tried, as often

as feasibly possible, to get the truck back on Friday

night so it could be washed. And the oil was also

changed in them on occasion. I'm not going to say

every time I neede an oil change that it was changed

in the Wausau Garage, but there were several occasions

when this was done. I was reprimanded one time for

not bringing the truck back because you're expected

to do -- I don't know, it was quite a while back --

but I believe at that particular time we were in

Tomahawk and we didn't bring -- I had come back by some

other means -- I don't even know how -- and the truck

was left up there, and Monday morning we were expected

to go to a different job site and the truck wasn't

there, and we were reprimanded verbally for not

»ringing that back to Wausau. On that occasion we

came to the Wausau Garage early to go back to Tomahawk,

the supervisor was there and he says, “Well, I got

a new job assignment for you today," and whatever it

was I don't remember -- I believe it was to work in

the Wausau area -- and I said, "I don't have my truck,"

and he said, "Well, why don't you have your truck.

You're supposed to bring it back," and then I had to

explain why.

MR. KARAU RECALLED - CUMULATIVE N.P.

NO CROSS EXAMINATION. DAVID HUSNICK RECALLED. DIRECT

EXAMINATION BY MR. RADER.

We had two separate cutter crews and most

of our individuals were from Marshfield and Merrill,

so any resupplying of the trucks that was needed, it

was usually called into Wausau, and these supplies were

RECORD PAGE

545

547

548

—l4a—

147

put into these so-called plastic bags and they were

left off at the garage, and I picked these up for

the crew, for the most part, and I carried supplies

for two or three different people up to the areas

where we were working. I routinely did this on

interim weekends. Our supervisor had a cleanliness

policy the same as the rest did, and whenever possible

we dumped our garbage into the dups at these various

locations, but we were informed that we were not to

put anything of copper, or any old phones, or ringers,

or anything in the dump; these were left in the truck

and they were returned on Friday evening to the Wausau

Garage where they were unloaded, and other than that,

the vehicles were gassed and oiled and so forth on

different occasions at Wausau. If a truck needed

major repair, I would drive it to Wausau and if someone

didn't need their truck I took their truck and returned

with it on Monday morning. The maintenance needed

on my truck was then performed during the following

week. I don't recall ever having been reprimanded for

not returning my truck to Wausau.

MR. GAJEWSKI'S DEPOSITION PART READ ADVERSELY INTO

RECORD.

The lodging allowance paid the employee

to stay over each night is $11.00 and $9.00 allowance

for three meals. If an employee elected to drive

back and forth with his own car, he would have to take

the $6.00 per diem allowance and he would lose the

$19.00 meal and lodging allowance during the week.

PLAINTIFF RESTS. TESTIMONY CLOSED.