Petition for Writ of Certiorari — Mendo Wood Products, Inc. v. Mulder

L , P 7 . Lo OMce

“FR Ke: F

Supreme Court, US.

FILED

On the Supreme Court

OF THF JOWN F Mavic Cre oK

- Pnited States

Ocroner Tern, 194

" No. 394

NTs N bak Woop DP prcapet { AP SS a:

Petitions rs

ALbend Mecore Roperr Bo Rippir!

and Armritce OO} Woopanr.

he spoude nis, ;

J

PETITION FOR WRIT OF CERTIORARI”

to the District Court of Appeal cf the

_ State of California

First Appellate Disirict, Division Two.

JOHN F. Casey,

Wm Pablie Service Bu

Pee tdeasel, Oren 7204

Counsel for Pr fitioner.

troorny WOM Brres.

' ‘°

James FL KEMP.

| -t Optics Box 725

} oh ¢

t+ wleitd ti

( "ou Ne / ot id, cored,

* *

* o a

? ‘

*

Subieci Index

>, "

. ; Page

Opinions below ..... ST EOE aie Oe ree ee pater ican ances eke oe

Jurisdiction ..... ALS pO So a xs auunk eas eer ee

—-——_Questions presented ..............-+00-- eT er iveavaawe 4

Constitutional provisions and statutes involved 2........... o

.

Statement of the case ...-.0..6....-.. BL a ee are A eee

» *

Measous for eramtime this writ ..... <0... .sccs cages tees: os

Preliminary statement ................6% Seiaead ae es Is

The Judgment of the State Court rests upen Findings

of Faet whieh (1) omit a finding ef any change in

or tesmination of the admitted status of pecitioner

as a orivate invtof carrier operator excmpt from the

Fair Labor Standards Act ‘during 1957-1958, (2)

omits a finding that the status of petitioner as an

exempt private motor earricr under the Fair Laber

‘Standards Act terminated upon January 1, 1959

with the record entirely silent as to any action, pre

coeding or notice of such termination; (3) omits: a

finding as to the number of actual hours worked

eund paid tor (that being the essengial hasis for the

penalties Imposed by the Aet and the Judement) 2 23

« ME occur awd nnseas se osueea Ce SP a eee . 3

a+

—

oe

Original Documents. and Papers Transmitted with Petition

Certified copy of the clerk's. transcript and the reporter's

transcript of the Superior Court trial, filed in the office —

of the.Clerk of the Distriet Court of Appeal of the’ State

of California, First Appellate District.

Certified copy ot the opinion of the District — of:

Appeal of the State of California, First Appellate Dis-

trict, Division Two. -

Certified: eopy of petition fer wh a in the Dis-

trict Court of Appeal, First Appellate Distriet, Division

Two, and certified copy of the order denying said. peti-

tion.

Certified -eopy. of ‘petition for hearing filed in the Su-

preme Court of the State of California, and certified

copy of order denying said petition.

All of the original exhibits im evjdenee at the trial in the

Superior Court, certified by: the ein of pecan Court, and .

consisting of plaintiff's exhibits: 1, 2, 3, 4, 5, 6, ane 7;

and of defendants’ exhibits A, B, C, D, E, ¥ G Hf. J

and K. These ‘exhibits are itemized at page 3 of the

Clerk's transeript. on apgent.

ose

\ J

ea . ;

: Y depen Index to Appendices i

tr . .

, 7 ~

Ps oo 4 Page

yo Appendix A—Judgments : ; oe

LP -1, Memorandum Opinion vf the Superior Court 0.0%... 21

ze 2. Findings of Fact and Conelusions of Law of _ the

Superior-Court ......... Rae cam mae ep oe we Sears eS 7

3. Judgment of the Superior Court 00. 2......0....... fae ee

4. Opinion of the Distriet Court | Ea ee 18

o. Order of District Court of Appeal Denying Petition

. . . . s ‘

for Rehearing ....:.....<. Bornes ba panaeerotn Oates 34,

6. Order of “Supreme “Court of the State of California’

Denying laces ior “ee PPA See eee te, 3b

Appendix R—C ‘onstitutional Provisions and Statutes » Which

the Case Involves: ,

“1. Constitution of the United Statts, Seetion 8, Clause 3... 27

. 2. Constitution of the United States, Amendment NIV,

DNR eh boats cease Pe agin a4 ae 8h Na Eee og a oF

3. Title 28 USC, Judiciary and =Vudiecia! Procedure, Sec

A See ie ce: senha psi Sort gly nnn ee cule icara tron 37

oe 4. Fair Labor Standards Aev (Tithe 29°) U.S.QgeLabor,

Chapter & Sees. 207, 213,.216; 22.2... a OE wees ~ 3s

5. MétOr Carrier Aci of 1935 CTitle 19 Uss.C.,*Transpor-

tation, Interstate Commerce Aet, Part I], Sections 303

gt) aa ee Pane Wea eK POP rrr! rere

6. Portal to Portal Pay Aet of 1947 (Title 29 ELS...

Labor, Chapter 9, Sees. 253 and 260)................. 40)

7. Code of Federal Regulations Title 29, Labor, Appendix,

Chapter, 0, Sees. T7S.2.¢), (d) and Seetion 785.0(a)*.. ° 41

* Also contained in’ Tithe 29. Code of Kederal Reguta-

tions, Seetion 785.0> until that seetion was renumbered

as TSo0.1 by 26 Federal Regulations 7732. August 1s,

. 161: -and the hinguage slightiy ehanged. but not im

such pwiuiner as to affeet this litigation.

g z sts «

7 |

+ Table of Authorities Cited

Cases i - Pages

Ameriedn Railway -Express Company vy. Levee, 263 U.S. 19 8

~ Anderson vy. Mt. Clements Pottery Co., 328 U.S. 680....... 35

Atchison, ‘Topeka & Santa Fe Railway Co. v. Robinson, 233

MA BOR Dias Fx Veale keh awh eeatiasapheyingavenen seankes 3°

en v. Kroger Company, 167 F. 2d 700 (Arkansas, 8th’

Wd Manas naa, SOT rer rere y ree Tey TCP ET a. ae

ea ae oe Sn rr ere 26

Biaek v. Roland Eleetrical Co., 68 F. Pape. 117 (DC., ae

ae ie ap ee ean a ely SO IED +. “34

Dallum v. Farmers Cooperative Trucking Assn., 46 F. - Seip. |

ME <4 adcwewase tunis ews Koi ha ky Witwk akan cebu) ce. (OO.

Davi is v. Weehsler, 268 U.S. 22. PIE Pater ub 7 Mig Pot On:

Fleteher v. Grinnell Bros.,°78 F. Supp. 339 (D.C., Mieh.,

3S ae eer ee rerrre reer er win h Bea eh Mees euuess 27

Florids ‘vy. U. S., 262 U.S. 194............. ea en aaa ",28, 29

(iorehakoft v. Calif. Shipbuilding Corp., 63 F.eSupp.309.. 25

Hicks v. Barnes, 109 €.A. 2d 859... 00... ot

Ilinois Steel Co. v. B. & 0. Railroad Co., 320 US. 508.... 3

J. J. Howell ‘and Associates, Inc. v. Antonini, 124 C.A. 2d

i Seth eer aE eee ee a 27.

Kantar v. Garebell, 150 F: 2d 47 (CA, 8th Cir... 0... 38

Levinson v. Speetor Motor Service, 330 U.S. 649.......... 30

Mooney v. Holohan, 294 U.S. 108....:............0.0005. - 20

Morris’ wo" eee, Ge Oe. Oe os ee ec bs oc ne eal

Nisbet v. Rhinehart, 2 Cal. 2d. 477...25........... ee 9,

O’Brien y. O’Brien, 124 Cal. 422: . 0.60.2... . eee. aes

Ovama v. California, 382 U.S. 633.2... bia er en aa are ee aiad _ 30

Pyramid Motor Freight Corp. v: Ispass, 336 U.S. -695...... 30

St. Louis, Iron Mountain and Southern Railway Company v.

Starbird, 243 U.S. DOE TL One Teo EE Tee Ee eT ner 3

’ >

Pr)

TABLE OF AU'rHorirtes Crrep ee. i

2 rae %

4.

.

sO | Pages

Shenson v. Shenson (1954) 124 CoA. 2d: 747, 269 P. 2d 170 Ss

Southland Gasoline Co. vy. Bayley, 319 Ug. 44.0... ees 31

Sturdivant y. Salt River Valley Water Users Assn. (CLA.

Oth Cie), 200 F.2d POL os nd. eee adwetc ves '' %

Webster-Brinkley Co. v. Belfield, 166-F 2d S14 (CLA, Oth

CW 84 ese darnaessnsawes ees tings we gualGivin ipa es cans see ae

: male : Statutes

California Code of Civil Procedure, Section 682 2... ... 24, %

29 Code of Federal Regulations, Labor. Appendix, Chapter 5 6. 22

Fair Labor Standards Aet (22 U.S.C... Labor, Chapter s-

Le eee Sere ECT Oe . 4, 5, 7,8, 15, 19, 22, 32,34, 35,38

MN I EA oe iss es des rr eee ene 4

Section 207 ...... aaa aera ae vs as PB wor ay ey hag a

5 > Sr Se pee ea Ge catniatnl De seins eee.

UTR os eS ee xe es ae UN ae SPN e ae ee

Section 216/') a eee ices ete arnend its eee

Moto® Carrier Aet of 1935 (49 US.00. Transportation, Inter’

state Commeree Act, Part ID)... .. etree rae “4, 5, 20, 22, BU

Section 803° ...6....... re ee. Pere eee a

"OE SO reel, coe. eet en ee ce eae an es ~

Portal to-Portal Pay Aet of 1947 729 U.N.C., Labor. (hiap--

we 6 asia pe Ne Por yeas Sop homies Sane ae ose 94, 5,6, 10, 2

MORNE Sw SS oie cat rece: eas i

Seetion 260.000.0000... PAS Cae ee PSN 6

Ys USC.) Judiciary and Indieia! Procedure, Seetion (1257

“Subd. 3...... eat oe ol secre a ee are eeal niece Paid ey halen tar oi cede & oe

« be , as J

Constitutions . ;

°

Constitution of the State of California : /

‘Article Vi, Seetioms 4, 4a. 4h... - wend dq]

Constitution or the Uiitted States:

Amendment NIV, Section 160000000060: ‘ 2

Article 1, Section 8, Clause 3 ...:.0...... Rua! Sewe om

re

.

vi ‘PABLE oF AvTHorITIEs CITED -

: ‘Textbooks )

_11 Cal. Jur. 2d, Constitutional Law, Section 305, p. 774...

48-Cal. Jur. 24, Trial (1959) ...2.....020. itp rool ei

1964 Pocket Cumulative Supplement yee Pivesyes’

Sections 279 to 318 ...... Metlsaaande shee aw aeee’ a

* Section 294, Scope of Findings, p. 294 PAD A aoe aie eo ¢

Section 300, Definiteness and C ‘ertainty, Pp. 300 Caas

~ oe C: JS., Federal Coane Section 28, p. 150 OL eae

2 Witkin, California Procedure, Trial :

Section 113, page 1844 .02...... cede cece ee ee

1963 Permanent Supplement, page 969_.......,....

| Rules

Supreme Court Rules, Rule 19(1) (a) .....---.-- ee see

‘eats

Iu the Supreme Court

Bnited States

_ Ocroser TERM, 1964

- - No.

es ete

‘N

MENvO Wo oop PRopv CTs, INc.

Petitioner,

Vs.

ALBERT Me LDER, ROBERT B. Rippie,

and ARTHUR QO. WwW OODALL,

Re seni

: Vv

PETITION FOR WRIT OF CERTIORARI |

‘to the District Court of Appeal of the

State of California ;

First Appellate District, Division Two

i Mendo W ood Products. Ine. ag a0? corporation, the peti-

oner herein, prays that a writ of certiorari Issue te

review the judgme ‘nt of the District Court of

Appeal «

of the St3te of C; alifornia in and for.the ed

‘st Appel-

‘

late District, Division Two,-numbered 1 Civil 21,307,

filed and entered March 17, 1964, as to which judgment

the Supreme Court of the State of California de nied a

hearing on May 17, 1904...

OPINIONS BELOW

The Memorandum Opinion of the Superior Court

dated November 20, 1962 and filed November 23, 1962, .

is unreported and is printed in Appendix A hereto,

infra, page 1. Findings of Fact: and Conclusions of

Law of the Superior Court, dated and filed December

21, 1962, are unreported and are printed in Appendix

A hereto, (ufra, page 7. The judgment pt the Superior

Court dated and filed December 21, 1962 is unreported

and is primed in Appendix A hereto, infrd, page 1.

The opinion of the District Court of Appeal of the.

State of California, First Appellate District, Division

Two, is printed in Appendix A hereto, infra, page 13.

This opinion is net vet reported in. permanent form

n The California-Reporter but is presently printed

in Advance Sheet form in Volume 37 ¢ alifornia . Re-

porter, page 479. It has not yet been reported in: per-

mnanent form in the ¢ Jalifornia Appellate Reports, but

is presently printed in Advance Sheet form in Volume

225 Advance California Appellate Reports, page 761.

The order denying the petition for rehearing in the

District Court of Appeal. is presently unreported, but

a copy thereof is printed in Appendix A hereto infra,

page J4. The order of the Supreme Court of the State

of Cahfornia denying the petition: for hearing is. .

3

presently unreported but a copy thereef is printed in

Appendix A hereto, infra, page 35. ‘

JURISDICTION

The judgment of the District Court of Appeal of

the State of California, First Appellate District,

Division Two, was enfered on March 17, 1964. (Infra,

Apygndix A,; page 13.) A timely petition for rehear-

ing in said Court was denied on April 5, 1964. (Infra,

“Appendix A, page 34. ), A timely petition for hearing»

hy the Supreme Court of the State of California was

denied on May 13, 1964. (Infra, Appendix A, page 35.)

An order by, the Superior Court of the State of Cali-

fornia in and for the County of Mendocino ‘staying

execution on appe ‘al from its judgment herein direct-

ing the payment of money, and based itpon the deposit

of $16,000, was filed in that Superior Court on the

Isth day of June, 1964, granting a stay until the final

determination is rendered by the Supreme Coturt of

the United States upon this petition.

The jurisdiction of this Court is invoked under

American Railway Express Company v. Levee, 263

U.S. 19; under Atchison, Topeka & Santa Fe Railway

~ Co, v. Robinson, 933. US. 173, 181; St. Louis, Lron

Mountain and Southern Railway Company v. Star- .

bird, 243 U.S. 592, 594, 599, and Illinois Steel Co. v.

B. & OJ Railroad Co., 320 U.S. 508, 511: and under

Title 28, U.S.C, a paris and Judicial «Procedure,

Section 1257, subd. 3 CAppendix BD. page OW) Since

the right and title of sie theiies is specially set ap and.

4

claimed under tlie statutes, commission held, and au-

thority exercised under the United States. |

These authorities sustain the power and the juris-

diction of this Court to review the State Court judg-

ment of which review is here sought. :

QUESTIONS PRESENTED

1. When in an action in a State Court under the

Fair Labor Standards Act and its companion acts,

the Motor Carrier Act of 1935, and the Portal to

Portal Pay Act of 1947, it is both proven anc ad-,

mitted that the eniployer operated as a private carrier,

.

subject to the provisions of the Act, duriig the com-

plete-calendar years 1957-1958, and was then exempt

frou overtime compensation provisions, may the State

Court in the absence of either proof or finding of any

change in our termination of the exempt status of

defendant employer as such operator under the Act,

deprive it of the benefits thereof /

2. Where it is-both proven and admitted in a State

Ceurt action under the Fair Labor Standards Act

and its companion acts, the Motor Carrier Act of

1935, and the Portal to Portal Pay Act of 1947, that

dyring: the calendar years, 1957-1958 the defendant

emplover was engaged in hauling its own products

as a private carrier in interstate trucking commerce,

and was during those years exempt from overtime

compensation provisions, may the State Court use

evidence purporting to establish non-interstate activity

5

in the calendar years 1959-1960, sans any action, pro-

ceeding, or notice, by or f rom aly source, to support a

judgment that such employ er is no longtr engaged 1 in

interstate commerce?

3. May a State Court, where the issue is whether

defendarit is subject to the payment of overtime com-

pensation under the Fair Labor Standards Act, aad

its companion acts, the Motor Carrier Act of 1935;

_ and the Portal’ te Portal Pay Act of 1947, and

where such Court. whoily fails and omits (actually

refuses, C.T. pp. 42-45) to make findings cf faet as

to the number of actual hours worked and paid fer,

or that petitioner was not exempt from overtime com-

pensation provisions, render judgment for overtime

compensation (carrying heavy penalties imposed

‘hereby and therefor) and thereby deprive defendant

employer of his pronerty and of the benefits of the

Federal statutes ?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitutional provisions involved here are See-

tion 8, Clause 3, and Amendment XIV. Section T-_

The statutes involved here are Title 28 U.S.C. Judiei-

ary and Judicial Procedure, Section 1257, subd. 2

Fair Labor Standards Act, Tithe 29 U.S.C... Labor.

Chapter &, Sections 207, 213, 216; The Motor Carrier

Act of 1935, Tithe 49, USC... Transportat ton, Driteer-

state Conmmerce Net, Part TE. Seetions oe. Boge

-_-.> so

Portal to Portal Pay Aet ot 1947, Title My Yo

ace : \

Labor, Chapter 9, Sections 255 and 260; Code of

Federal Regulations, Title 29, Labor, Appendix, Chap-

ter. |

The pertinent provisions of these several sections of

the Constitution of the United: States and of. these

‘several statutes are printed in Appendix B, infra. A

detailed pagination index precedes that portion of

this petition which is devoted to appendices, arid will

also be found in the index at the front of this printed

petition. ,

‘STATEMENT OF THE CASE

Note: petitioner depreeates the length of this

statement, but under the questions here presented,

deems it impracticable tu attempt further cond ea.

tion. ,

The three named respondents, Mulder, Riddle and

Woodall were employed as truck drivers by petitioner

herein, Mendo Wood Products, Ine. a lumber matu-

-facturer whose plant is situated in the County of Men-

docino, State of California. These men had been so

employed for a number of years including the calen-

dar years 1959 and 1960, On May 24,°1901 they filed a

complaint, for wages against petitioner herein.’ This

was to recover overtime compensation, together with

statutory penalties and attorney's fees, for work per--

formed in 1959 and 1960. The complaint is in the form

land against two codefendants who did not) perfect an

appeal from the judgment and with whom we -are not here

concernea }. '

7

of three separate and similar causes of action, on

for each of the three, (C.T. pp. en

Each of-the counts alleges that defendant therein

was a corporation subject to the laws of the State of

California.and to the provisions of the Fair Labor

Standards Act enacted by the United States Congress.

(C.T. p: 4, p. 6, p..8.) The counts are almost identical

except as to hours and amounts. That of Mulder, e.g.,

-(C.T. 4-6), alleges that from the Ist of September

1959 to the Ist of August 1960 he was an employee of

defendant corporation wor'sing as a truck driver; dur-

ing that period he worked 1325 hours in excess. of 40

hours per week; that he had 1325 hours overtime, as

to which he was entitled to time and a half, whereas -

he had — paid only straight time. That his wages

were 2.37 per hour; that he had demanded payment

of the overtime but defendant had failed, refused and

neglected to pay it—that he was damaged in the sum

of $2500—that it became necessary to employ an at-

torney to prosecute the action and that the sum of

$500 was @ reasonable amount to allow for that pur-

pose; and that the alleged failure by the employer was

a violation of law and that fhe employer was ‘‘there-

fore liable to said emplovee in an-additional amount .

to the unpaid wages as liquidated damages."’) Prayer

for such relief follows.

4 , ;

The Riddle count. (C.T. pp. 6-7) and the Woodall

count (C.T. pp. 8-9) were in almost the exact phrase-

ology —only the dates and amounts differing.

2There was a tourth cause of action upon whieh judgment

as reversed by the District Court of Appeal and it will not be

diseased here,

8

Defendant corporation (petitioner here) filed its

answer (C.T. pp. 13-31) and. a supplement to the .

answer (C.T. pp. 32-33). By its answer—separately

to each count—defendant admitted that it was subject

tu the provisions of the Fair Labor Standards Act—

admitted that plaintiffs, respectively, were employed

as “truck driver and operator in the usual course of

its business, which business included operating as a

‘private carrier of property by motor vehicle’ tthe

the meaning of the Motor Carrier Act of 1935 as

Amended”; that plaintiffs added nothing to the value

of the goods, commodities, or articles that were hauled,

that the, action‘and proceeding was not of a nature to

qualify for the payment of attorney's fees and costs

as provided in 29°U.S.C., See. 216. (C.T. 14, 19, 24,

respectively.) Except as above indicated defendant

denied each of the allegations in the complaint.

As an affirmative Answer (and again the allegations

respecting Mulder are exactly illustrative of those re-

specting Riddle and Woodall) defendant alleged (C.F.

p. 15) that it was ‘‘engaged in the purchase and har-

vesting of timber, the manufacturing of lumber and

wood products, and in the sale of lumber and wood

products throughert the United States of America”

And that “tin the course of its business tenure, defend-

ant operated a lumber and wood products manufactur-

ing facility. on aideeweod Ranch ini Mendoeine

CC ounty, Califor mia.’ ~ Further alleging: ‘*That defend-

ant herein “was, at all ties material to this action, a

carrier whose transportation by motor vehicle was,

throughout the tenure of defendant's operations, sub-

9

ject to the jurisdiction of the Interstate Commerce

Commission under section 204 of the Motor Carrier

Act of 1935.” The affirmative answer further alleged

‘that throughout all times herein referred to the em-

ployees of said class in which plaintiff, Albert E.

Mulder, was emploved were employees with respect

to whom the Interstate Commerce Commission had

the power to establish qualifications and maximum

hours of serviee pursuant to the provisions of see, 204

of the Motor Carrier Act, 193%, and that such power

was not limited te the provisions of sec. 204(a) (Ba)

of’said Act’. Further alleging (C.T. p. 3) “That the

employees within said class were engaged in the oper-

ation of a motor vehicle for and behalf of the defend-

ant as a private carrier of property by motor vehicle

within the meaning of the Motor Carrier Act, 1935,

as amended (29 U.S.C., sec. 201 et &eq.). That em-

ployees within said elass did operate and. drive said

motor vehicles upen and over public highways and in

interstate commerce within the meaning of the Motor

Carrier Act aforesaid.” ‘The affirmative Answer con-

tained further allegations (C.T. pp. 16-18) respecting

the activities of the employees of said class, that they

personally drove and operated the motor vehicles ty

which they were assigned—that they were required in

the regular course of their employment to haul luim-

ber and wood products over’ public highways from

defendant's himber and wood produets manufacturing

facilities to warehouses, lumber yards, or depots,

Which Jumber and/or wood products were thereafter

shipped into and through States of the United States

10

other than the State of California without any further

processing or manufacturing being done upon or with

respect to the lumber or wood products hauled’’; it

further alleged pick-ups-and deliveries of items other

than lumber in the regular course of their employment

as truck drivers and, alleged further (C.T. yp. 18) that

they were ‘specifically exemptaul from the niaximum.

hours and overtime provisions of the Fair Labor

Standards Act by the terms and -provisions of see.

13(b)(1) of said Act (29 U.S.C., section 213(b)(1))

as during all of such period of time said Interstate

Commerce Commission had the power to establish,

for such elass of émployees, qualification and maxi-—

"mum hours of service, pursnant to. the provisions of

see, 204 of the Moior Carrier Act, 19: 35, aS amended.”

Similar allegations were mace as to each of the plain-

tiffs therein.

ay e

The action was tried upon the issues raised by these

pleadings. The evidence, chjections and arguments as

shown throughout the reporter’s transcript, and the

oral argument of counsel for plaintiffs (R.T. pp. 26F"

to 279) so disclose. The memorandum opinion of the

trial court (C.T. pp. 34(a) to 34(¢)) wherein refer-

ence is also made to the Portal to Portal Pay Act of

1947, likewise. so established. ‘This memoranduin

- opinion is printed in full in Appendix A hereto, infra,

page 1. | |

‘As’ stated, the memorandum opinion of the trial

judge of the Superior Court discloses the various’

federal questions which were discussed in that court.

(C.T. 34(a) to 34(¢):) Findings of Fact and Con- -

11

clusions of Law (C.T. pp. 35-38) and Judgment (U.T.y

pp. 39-41) ‘were signed and filed. The total awards by

the judgment (in addition to their regular pay long

since collected) werg, respectively :- Respondent .Mul-

der, $4,441.80; Respondent Woodall, $4,480.00; and,

_ Respondent Riddle, $4,282.46, plus $500 attorney’s fee

allowed to each. (C.T. pp. 39:40.) Motion for a new

trial, upon which one of the questions presented herein

by petitioner was. the omission from the findings of

fact of either specific periods of. employment,’ or

specific numbers of hours worked, was denied. (C.T.

- pp. 41a-45.) (A modification was made as to interest,

which does not affect this petition.) Thereafter a

th imely Notice of Appeal was filed to the District Court

of Appeal ofthe State of California, First. Appe Hate

District and regularly assigned to Division Two there-

of. Appellant’s opening brief, respondents’ reply brief,

appellant’s closing brief, were filed, the case was orally

argued and submitted, decided adversely to petitioner

herein (except as to one tactor which does hot affect

this proc eeding). Thereafter a petition for rehearing

in said Court was filed and denied. This was the last

Court which had jurisdiction of the appeal. A petition

for hearing was filed in the Supreme Court of the

State of California and denied. That was the final step

possible except’ the instant petition. The petition for

rehearing and the petition for hearing are each be fore

this Court as a part of the duly certified transcript

of the record. | .

3Topie “Jurisdiction supra, page 3. Constitution ‘of the Sti ite

ot California, Sections 4, 4a, 4b.

12

Mendo Wood Products, Inc. was a California cor-

poration which manufactured lumber at a mill on the | |

Ridgewood .Ranch, near Ukiah, California and near |

California State Highway Number 1. It manufac-

tured only ‘‘studs’* (2 x 4’s of various lengths) and

sold them through wholesale lumber brokers. It had ~

been engaged in that business for some years prior to

1959. It used leased trucks for transporting. a sub-

stantial quantity. of studs to designations indicated

by its brokers. Some of these deliveries were made by-

trucks to points within the State of California, some -

of them were made by truck without the State of

‘California, some of them were ‘delivered by truck

_ directly from the mill to the Ridgewood Station of the -

Northwestern Pacific Railroad Company, for. contin-

uous transportation to out of state, points. In these

operations it had for several years employed various

truck drivers, three of whom were the plaintiffs who -

brought this action in the Superior Court. During

the calendar years 1957 and 1958 all three’ of these

methods of shipment were frequently used. .

_ With no announced change in methods of operations

petitioner after January 1, 1959 made no direct truck

shipments to out of state points. It did, however,

continue to.ship lumber directly to out of state -points

by delivering it-to the railroad station just referred

to. One of the points in controversy. here arises out of |

the fact that the railroad station was Jocated upon the

same real property as was located the mill. When low

loads were transported the trucks operated through a

tunnel under the railroad tracks and did. not touch

13

_ the publie highway in making delivery to the railroad

station. Upon high ‘truck loads there was evidence

that on occasion during the vears 1959 and 1960 loads

of studs enroute to the railroad station were hauled

over California State Highway. Number 1l—although

these specific plaintiffs testified that they had never

used State Highway Number 1.

The findings of fact here did not resolve a contro-

versy between the testimony of the three plaintiffs and —

that of Elwood C. Welch... a corporate official (1

which case it might be contended that the finding by

the trial court could not be attacked). mn the contrary

testimony of Mr. Welch as to hauling ov er California

State Highway Number 1 (R.T. 214-216) ‘consisted »

of additional, further, and undenied testimony and

there thus arose no conflict. That this is true also ap-

pears from the memorandum opinion of thé Superior

Court (C.T. p. 34(b)) where the Court says: “Tt Was

conceded that some trucks may frém time to time have. ’

used a portion of U. S. Highway 101, but that this

was a negligible part of the trp, and that most of the

trucks did not use this route. "There is no testimony to

“contradict the plaintiffs’ claim that they did not-

traverse’ U. S. Highway 101 in making deliveries to

the railroad. i

The testimony shows without dispute that during

the years 1959 and 1960 petitioner shipped large

‘quantities’ of studs to various wholesale lumber

brokers within the State of California, and that a eon-

siderable percentage thereof were trans- shipped with-.

out the State of Calif ornia Without re-manufacturing

14

or change of any kind, and in their original form: '

The correctness of this statement appears from the

. depositions of William Sharp (Def.:Ex. F) and of

Robert Hill ( Def. Ex. G). Both of these exhibits have .

come forward with the records of the case.

The studs which were transported from the mill to

the railrcad station were there loaded on flat ears and. |

consigned to destinations’ in Georgia, Texas and Ari-

zona, respectiv ely. Each week during the term of time

involved in ‘this action (the calendar years 1959 and.

1960) approximately two railroad cars were so loaded

each week—each car carrying more than 30,000 board

“feet of studs.” Petitioner operated the trucks, had

— complete control of. the trucks, and employed and

‘compensated the truck drivers. (R-T. 215:1 to 216 :23.)

This action represented no claims made by any of the

three plaintiffs for periods worked prior to January

1, 1959—during which period, direct truck shipments

_ were admittedly made. outside the § Stata of California.

One further type of shipnient from without the

State during 1959 and T960 is established by the testi-

mony of the witness of E. D. Thompson. (R.T. p: 144,

et seq.) As appears by. this: testimony a substantial

-quatity of feed mill component parts was carried by

the trucks of petitioner herein from the Miller Manu- _

~ .faeturing Company in Turlock, California, to the:

Ridgewood Ranch. Also, that many of these com-

“ponent parts were ordered by.Mr. Thompson, Manager

of the Miller Manufacturing Company, directly from

eastern suppliers from other states for use upon the

Ridgewood Ranch, and. that such parts were shipped

e

5 ee

initially from the points of origin, respectively, out-

side the State of California, to Turlock: There the

parts remained, in their original form, and were

_ transported to the Ridgewood Ranch during the cal-

endar years 1959 and 1960.

Mr. Welch testified, as a corporate officer. of.

petitioner that petitioner had no change in corporate

_ policy. in 1959 and 1960; that it sought only to sell its

products in the market without regard to limitation:

‘either interstate or intrastate, that’ the corperation

executives beheved they were continuing to perform

transportation service in the flow of interstate com-

merce during these two years and, that it was not’

subject to the Wage provisions of the Fair, Labor

Standards Act. (R.T. 221-223.) During these two years

all truck drivers, including thiese three respoydents.

were paid ir full ‘at the straight time rate. including

paid holidays gnd paid vacations. Time records wer

maintained inthe form of time cards and-snumber “of. —

hours to be paid tu the drivers for each trip was wnt-

ten on the time eard when the driver returned fron

the trip. Petitioner paid its truck driver employées

every two weeks and the drivers “were compensated:

upon the basis of total hours worked’ during that

period, plus holidays. | ;

. Plaintiff Mulaer testified as to the method used by

allot the plaintiffs in computing overtime—a method

subsequently approved and allowed by the trial.court,

°

‘ +

‘All of these timeeards are evidence, and have come Forward

with this petition. Trose of Mulder are Pls. .Ex. 5. those ot

| Woodall! are Vis. Ex. 3, those of Riddle are Dets. Ex. A. ‘

: | 16

Van, ;

(C.T. p. 51, lL. 17, to -p.-58, 1. 17.) In substance, he

stated that he took the timecards for all of 1959 and

1960, totaled the hours. from the first through the

fifteenth, from the 16th to the‘end of the month. If

the entries were within 14 days, he then subtracted’

80 hours and treated the remainder as overtime. If -

the entries were over a 15 day period he then sub-

tracted 88 bours and treated the remainder as over-

time. No consideration was civen to calendar: weeks

or basic. workweeks. He included paid holidays in his

computations of time worked. If he was paid for a

holiday during a 15 day period, he included the &

hours for purposes for determining the number of

hours worked. The result would, be that, in -these

computations, overtime was claimed for considerable

periods of time not worked.. (C.T. p. 54, Is. 4 to 23.)

The same was true as to the other two plaintiffs.

Petitioner has presented the Mulder testimony .as il-

lustrative of that of the others.’ |

Thus petitioner was severely pre judiced by. the

Court's failure to find the number of hovrs worked hy

each plaintiff in excess of 40 each workwee k. In their

computation of overtime hours each plaintiff claimed

-* hours-for each paid holiday they enjoyed in 1959 and

1960. These are hours for which they were paid but

which they did not- work. This is substantiated by the

evide nee now before this Court, .

‘Rach plaintiff cotmputed his claimed overtime hours

ob a Stmmary sheet from his time cards. (Mulder, Pls.

(ount 4. elauns of plaintif® Riddle for breakdown time, and

‘Howanee of interest. were disposed of in the lower courts and

do Tot eoneern this petition.

—4T-

Exs. 5 and 6; Riddle, Defs. Ex. A ard ‘Pls, Ex. 7;

Woodall, Pils. Exs. 3 and 4.) A consideratién of the

pay period, January 1, 1959 to January’ 15,. i959

clearly demoiustratés this error. Mulder’s time card

-(Pls, Ex. 5) for this period ergdits him with 12314

paid hours. This figure includes eight hours attributed

to January 1, 195% and is cleariy marked, * holiday.”

Hence, in fact, Malder actually worked only 11514,

hours for the period January 1, 1959 to January 15,

1959. |

In his computation (Pls. Ex. 6) Mulder claimed

1231, hours as total hours: worked for, this “period.

From this he subtracted 88 hours as straight time anc

listed the remainder (3544) hours as the munber cof

overtime hours worked by him in this period. He nutl-

tiplied this figure by #1181. cents Cone-hall His revi

iar rate of compensation) and claimed 341.770 a»

unpaid and due overtime compensation. The money

judgment.in this case is simply an adoption by the

“Court of these computations yy plaintiffs. |

Henee, Mulder received $18.96 (8 hours tinies #2.37)

-from petitioner to fake a day off; wus also awarded

SOAS CS times ¥1,1S51.) as overtime pay for this scum

holiday: and was also awarded an additional 49.4% as «

penalty imposed upon petitioner: for its ‘walfid)”

failure to pay him time and one-half for these holidis

hours. Defendant’s Exhibit C demonstrates that the

three plaintiffs claimed and were awarded ov rine

compensation, pris pe nalties for at least 132 howirs—

noliday hours—which they did not worl,

18

During the years 1959 to 1960 none of the plain-

tiffs at any time made a claim for compensation for

overtime (R.T. 58, lines 14-17) or any other form of

penalty, and plaiutiffs and defendant in the California

action at all times conducted themselves as believing

= that the truck drivers employed by: petitioner were.

not subject to the wage provisions of the Fair Labor

Standards: Act. Many of the foregoing statements fall

in the category of ** Facts Admitted” and are set forth

in appellant's opening brief, pages 9-10, without

challenge.

Appellant believes that the foregoing recites and

enconapasses those facts necessary to enable this Court

to have before ic the acutal und complete factual pie-

ture necessary to the determination of this petition.

Appellant does not believe that any briefer statement

would have sufficiently served that purpose. It is

earnestly and respectfully hoped that the petition for

the writ will be granted and petitioner thereby enabled

to more adequately, completely, and forcibly present

both the facets and. the legal issues involved.

‘REASONS FOR GRANTING THIS WRIT

PRELIMINARY STATEMENT ©

Petitioner has set forth above three separately numi-

bered ‘Questions Presented”. However, they reaily

fall into a single category and petitioner veheves that

its argument can be presented more brictly and more

effectively by discussing the three under the same

19

treatment. Petitioner has meticulously endeavored to

‘place before this Court, by way of this petitien, by

way of Exhibits A and b hereto attached, and. by the

dispatch of the complete certified transcript of the ree-

ord, including all original exhibits in evidence in the

trial court, everything which would reflect the cause

below. It has also, under the heading “Statement of

the Case”, been equally meticulous in supplying this

Court with a full and accurate record of proceedings

had and of testimony given, Insefar as it affects this

petition. if petitioner has erred in’ the detail and

length thereof, it has done se solely in the effort to

aid this Court by presenting the true “picture” of

this case, from the date the complaint was filed in

the Superior Court in. California until a hearing

thereof was denied by the Supreme Court of the State

of California, albeit as briefly as reasonably possible.

‘In essence, the single question propounded te this

Court is one which petitioner believes to be of tremen-

dous importance, hoth to it for the financial reasons

disclosed by the record herein, (in large sums for

penalties and attorney's fees), and for a wider and

larger reason to those classes of people Cinta which

actually fall not only petitioner, itself, but the individ-_

ual plaintiffs as well) about whom the Congress has

seen fit to throw protective laws. e.g. The Fair La-

her Standards Act-and its two companion acts re-

ferred te in the footnotes to each of the preceding

Questions Presented” were chacted to protect the”

© people of che United States. a/7 the people. and that

protection includes, of course {authorities cifre) pru-

20

tection from a State government—whether it be exeeu-

tixe, judicial or legislative. -

: Mooney v. Holohan, 294 U.S. 103 ;

. 36CJ.S., Federal Courts, See. 28, p. 150;

1} Cal. Jur., 2d, Constitutional Law,. Sec. - 305,

: p. 774. | :

These three acts were and are intended to ensure

to employees certain rights and privileges, But

that was not their sole purpose, they were and are

intended also to protect the employers. In the case

here Drovght before this Court the right of the om-.

ployees (plaintiffs therein—respondents herein) was

(barring exemptions to the employer, petitioner here-

in) to receive time and one-half for more than 40

hours werk performed in one week, and if not so paid,’

they were entitled to-have a judgment for the one-half

unpaid, fe: an additional equal amount as liquidated

damages, and for attorney's fees. (Section 216()) of

the Fair Labor Standards Act, Apdx. B, infro, page.

38.) This protection for the employees (plaintiffs in

this case) was received in the State courts. However,

these same statutes afforded the right to the employer

(petitioner herein) to. be exempted from payment of .

the one-half cvertime compensation, with its penalties

and attorney’s fees, in certain events—iicludmg the

operation of a trucking business by a ** Private carrier.

of property by motor vehicle . ... in interstate...

commerce... in’ furtherance.of any commercial. en-

torprise.” (See, 303, Mbotor Carrier Act of 1947, Apds.

3. infra, page 39.) This right was a cohiconstant of

the other: hence where the employees have been

21 -

- awarded extra compensation, liquidated’ damages, and

attorney's fees, for services performed while the em-

ployer was so engaged in interstate commerce’ as a

private carrier, they were not entitled thereto, Thus,

simple ‘academic justice joins. with legal and .con-

stitutional requirement in the relief here sought.

What was it that determined in the State courts

that this award should be rade in favor of the em-

ployees and against the employer? Evidence, which

the Court believed, that defendant was not so engaged |

during the time covered (1959-1966). The Court also

awarded such payments for services rendered from

January 1, 1959 to May 24, 1999, all for services per-

formed more than two years prior to the commence-

meént of the action, payment of which is inhibited by

Section 255 of the Portal to. Portal Pay Act of 1947.

(Apdx. b, liereto, tufra; p. = This, to defendant's

severe’ financial loss.

And how did the state court accomplish these things

of which petitioner complained vainly to the appellate

courts of the State of California, including its Su-

preme Court 2 By omitting from its Finding of Fact

(even after its errors were pointed out. fully and

accurately by petitroner herein upon motion for new

trial (C.T. 42-45) and its various steps on appeal,

supra, page 11), matters which, first would Sustain

the’ position of defendant, and second, were in. viola-

tion of the mandatory statutes and of the decisions

of the State of California. Petitioner's position is that

simple. -But the fact remains that it is heavily ag-

grieved, and that it is saddled with a judgment for a

22

large sum of money, with heavy preparation and

litigation expenses and costs, all because of what it

believes to be, and believes it ean here establish: the

erroneous denial to it of the protection of these

federal statutes.

All applicable constitutional provisions and legisla-

tive enactments and regulations, in pertinent part, are

appended hereto as Exhibit L. Section 8, Clause 3

of the Constitution of the United States because un-

der that clause this protective legislation was enacted:

Amendment XIV to the Constitution of. ‘the United

States for the reason that it must appear herefrom

that petitioner has been deprived of its property with-

out due process of law; Title 28 U.S.C., Section 1257,

subd. 3, for the establishment of the right to petition

this Court for the writ of certiorari here sought: the -

Fair Labor Standards Act, Motor Carrier Act of 1935,

and the Portal te Portal Pay Act of 1947, for the

reason that these are the’ enactments by the Congress

which establish the. rights sought to be enforced in

this litigation—not only by the employees, but by

the employer; Federal Kegulations Title 29, for

the reason that they contain the interpretation of the

Department ef Labor respecting the workweek over-

time compensation here involved, which sustain peti-

tioner’s contentions, and which were appropriately

called to the attention of beth the trial and appellate

courts during the progress of the case.

23

The Judgment of the State Court rests: upon Findings of: Fact

which (1) omit a finding of any change in or termination

cf the admitted status of petitioner as a private motor

carrier operator exempt from -the Fair Labor Standards —

Act during 1957-1958, (2) omits a finding that the status

of petitioner as an exempt private motor carrier under the

Fair Labor Standards Act terminated upon January 1,

1959—with the record entirely silent as to any action,

proceeding or notice of such termination; (3) omits a find-

ings as to the number of actuai hours worked and paid for

(that being the essential basis for the penalties imposed by

the Act and the Judgment).

As we have seen in the first portion of the State-

ment of the Case, the findings of fact and conelusions

of law of. the trial court are very brief (three double

spaced transcript pages) and contain no slightest ref-

erence to any item. or, condition of employment. or .

transaction’ prior to January 1, 1959, (C.T. 35-238. 5

The judgment, even briefer, contains a page.and a

half (C.T. 59-40) and vis even less*specitie—meintion-

ing only money and no date prior to June 1, 1961.

This situation of the record means merely that a

13-yage four-count complaint (CLT. 4-13). and a 20-

page both denial and affirmative answer (CLT) 13-3335

have, by a’trial befory the Court withort a jury been

finally resolved te findings “and judgment of the

meacre length and eontent just indicated. So mearre

in fact, that petitioner is encotiraged in its eontempla-.

tion that this Court wilh conelude a most impertant

issue is involved and for sneh reason grant the writ

heremn applied for.

There were numeraas other contentions made in the

courts below but petitioner has deliberately seen fit to

°

24

‘concentrate its fire’? upon these here presented. It

confidently trusts that it has made no mistake in that

regard. a are

The situation we have, basically, is the interpreta-

tion by the California courts of its own law and of

the federal statutes hereinbefore mentioned (and de-

scribed, in pertinent form, in Appendix B hereto).

An action appropriately tried under the California

law and federal law, but improperly decided. And, as

in all such cases, where the State court has by its

actions nullified for a litigant the rights, privileges,

and protection afforded and guaranteed to such liti-

gant, by the federal constitution and by federal

‘statutes which have, in turn, been enacted pursuant te

constitutional authority. This, as we have also seen

hereinabove. In other words, the State court may. try

the issues raised by the parties hereto, and may—in

faet, must—apply the California rules of law thereto.

In so doing, however, the State courts may net evade

or ignore the rights accorded to the litigants by fed-

eral laws. Or, as we here assert, disregard or disobey

or fail tocobserve the laws of the ‘State of California

in such manner as to effect the deprivation to the

litizants of such federal rights. It is to this extremely

unportant “point or question, exactly exemplified by

the proceedings in the State court in the instant ease, ’

that petitioner earnestly, conscientiously: and yigor-

ously direets the attention ef this Court. —_

With respect to required findings of fact-and con-

clusions of daw, Section 632 of the Code of Civil.

Procedure of the State of California ready, Insofar

od ‘ 9 .

as here applicable, as follows;

5.

“In Superior Courts end municipal courts, upen

the trial of a question of fact by the Court, its

decision must be given in writing and tiled with

the clerk within 30 days after the cause is sub-

mitted for decision. In giving the decision, the

facts found.and the conclusions of law must be

separately stated. The statement of facts: found .

shall fairly disclose the court’s:-determination of

al] issues of fact in the case. * * * judgment upon

the decision must be entered accordingly. * * *”

This ‘section has been in effect in California since

the enactment of its codes “in 1872. It has been

amended four times since then. None of the changes

would affect the situation here presented. The Jast

amendment, in 1959, was the addition of, the third sen--

‘tence quoted above viz., **The statement of facts foun

‘shall fairly. disclose the court's determination of all .

issues of fact in the case.”” Due to its importance,

this.section has been construed many, “many times by

the courts of California as is evidenced by the annota-"

tions to the. West aid to the Deering annotated pub-

lication: of the California Code of Civil Procedure.

In the brief space accorded for-a petition of this

character—directed solely to sec uring the issuance of

the writ—it is not possible to review these decisons.

* However, the subject matter is carefully treated in 45

California Jurisprudence, 2d, under the heading of

“Tral’. This volume bears the publication imprint

of 1959 and there is appended thereto a 1954 Poeket

Cumulative Supplement.” Petitioner respectfully dj-

rects the Court's atteation to the fact that ‘the topic

s Pe

of findings of fact and conclusions of law is there dis-

cussed in sections 2 279 to 318, and will here quote from

the text very briefly. The supporting notes (numbers

carried here for convenience) have been examined and

petitioner believes they are confirmatory of the text.

Section 29 Scope of Findings (p. 294):

Tt is essential that, unless they are Waived, find-

ings he anade .on every material issue raised by.

the pleadizgs'’® and the evidence,” whether those

issues are raised by denial of the allegations of

the ¢omplaint’® or cross-complaint, * or on affirm-

ative defenses set up in the answer*® or cross-

complaint.. * * *

Although failure to find on a material issue is

reversible error,” at teast rf the omitted findings

may have the eifect of controverting or destroy-

ing the effect of other. findings,® specific findings

on each of severfl inaterial issues are not neces-

sary, where taken as:a whoie or construed to-

\ gether the findings clearly show that they include

the material issues.’ * * * :

And see ¢ Brien uv. Ori n, 124 Cal. 4 429, and Bird v.

Murphy, 7% 2 CA. |

From Seetion 300), De finiteness and ealeahe (p.

“The findings should be framed with. sutfficie nt

definiteness, cextainty and clarity to indicate what

it intended,! or What theory it adopted? The party

against whom they are made must. be “able. to

specify any partic ‘ulars in which they are not sup-

ported by the evidence.’ Where they are not suf-

ficiently definite and intelligible to dispose of the

-

~

27

materialissues without resort to speculation and

conjecture, a judgment based thereon will be re--

versed.*”’

And see J. J. Howell and Associates, Inc. v. An-

tonint, 124 C.A.2d 388, and H ead uv. Barnes, 109 C.A.

2d 859.

Nowhere in the record of tlie. instant case is there

an indication of any requirement that the motor ve-

hicles of an exempt motor carrier in interstate com-

merce need have an ope rating permit, or carry speci ial

registration plates, or any spec ‘lal requirement except’

such as.may be imposed by the Interstate Commerce

Commission. Nor was. there any showing’ that such

plates or any other suggested items were’ carried ir

1957 to 1958, when it is admitted that petitioner was

so operating. There was no question of any kind -nor

any legal objections of any kind interposed anywhere

during the proceedings respecting petitioner's 6pera-

tions prior to January 1, 1959. | |

It has been repeatedly -heid that. in order to be

engaged in interstate commerce it is not necessary

- that the eniployer’s. equipnient actually cross state:

lines, but it is only. necessary that the property trans-

ported in the trucks be tn interstate shipment.

Beyys v. Kroger Compens: 3 167 F. 2d 700 ( Ark-

“ansas, 8th Cir.) ; re

Fletcher v. Grinnell Bros., 78 F. Sica 339,

(D.C., Mieh. S

“blish, as a matter of law, that

These authorities @s

Pa’

28

ing 1959-1960 were in interstate:commerce. (We find

no ease which holds that change of title in the prop-

erty composing the shipme nt alters the interstate na-

ture of the commerce. ) |

As we have seen, there is no conflict in the evidence

here which could sustain-the findings and judgment

of the trial court by reason of a State rule of law.

The three plaintiffs testified only that they did not

operate. trucks upon the public highway. The testi-

mony of Mr. Welch, secretary of the petitioner corpo-

ration does not create a: conflict—his testimony. (R.T.

215:1 to 216:23) was that many trips were made dur-

ing 1959-1960 from the mill over the public highway

(California State Highway No. 1) to the railroad sta-

tion. There was no contra. Thus we have a situa-

tion Which the trial court should not have, and could»

not have ignored— but. did. Florida v. U.S., 282 US

194, involved a U nited States District Court and. an

order of the Interstate Commerce Commission—1 ‘ather

than State law in a State court. | We, nevertheless,

have the views of this Court—upon the question of

tindings:expressed in the language of Mr. Chief Jus-

tice Hughes. Therein a proposal had heen snbinitted

to the Commission efor a revision.of interstate rates.

The Commission made a tabular comparison of other

rates, concluded that the interstate rates thus pro-

posed were reasenable, and made certain findings

(p. 206). In its discussion of the circumstances of

that case the opinion says, page 212: )

“it must appear that there are findings, sup-

ported by evidence, of the essential facts as to the

particular traffic and revenue, and the effect of

the intrastate rates, both as existing and as pre-

scribed, upon tire income’ of the carrier, which

justified that conclusion.”

The opinion continues to discuss the absence of

findings upon various essential points, and ‘strongly |

presents confirmation of the rule’ petitioner: believes

should be applied in the instant case (page 215):

“The question is not mekely one ef the absence

of elaboration or of a suitably complete statement

of the grounds of the Commission’s determina-

tion, * * * but of the lack of the basic or essential

findings required tv support the’ Commission's

order. In the absence of such findings, we are not

‘called upon to examine the evidence in order to

resolve opposing. contentions as to what it shows

- or to spell out and state such conciisions oF Fact

‘as it may permit. The Commission. is the fact-

finding hody and the court™examines the evidence

‘not to. make findings for the Commission bet te”

ascertain whether its findings are. a ad tly sup-

ported.” 3 ;

. OF dike purport Was Webster-Brinkley Co. v. Bel

field, 166 F.2d 814 (C.A, 9th Cir.) where a Fair

Labor Standards Act was inte rpreted in ~ heht of

the necessity for findings.: + 7

Thus this Cotrt has spoken senncealins the necessity

of essential findings—and the holding therein as wo

less appropriate to the State ease which is” here

brought before this same Court) for review. ‘Phat

“this is true is. established by uuinerous decisions of

this Court, The classic language of Mr. Justice Holmes

>.

*)

v

In Dares v. Wechsler, 253 U.S, 22, at p. 24, expresses

it well: |

“Tf the Constitution and Jaws of the United

states are to be enforced, this Court cannot accept

as final the ‘decision of the state tribunal as to

what are the facts alleged to give rise to the right

or te bar the assertion of it even upon local

crounds.” .

.

And: ‘

Oyania ve California, 332 U.S. 633.

The decisions are clear that. is is ‘not hecessary -

‘vor the Interstate Commerce Commission under the

Moter Carrier Act of 1935 to actually establish the

_ reasonable requirements” ete, in that Act provided.

‘In the language of Morris v. MeComb, 382 Us. 422,

which comments tipen and expressly carries along the

rules laid down in the cases of Levinson ve Spector

Motor Service; 330 US. 649, and Pyramid Motor

Freight Corp..v. Ispass, 330 ACLS. 695,-it is said, at.

pase 431, that it is: '

. vo... the character of the aétivities rather than

the proportion of either the employee's time, or

of his activities that determines the actial neéd

for the Commission's power to establish reasan-

able requirements with respeet to qualifications,

maximum hours sof servies, safety of operation

and equipment.” ,

And at page 434 the opinion further states:

“We hold that the Commission has the power to

eestablish qualifications and maximum hours of

service, pursuant to the provisions of Seetion Jos

31

of the Motor Carrier Act, for the entire classifi-

cation of petitioner's, drivers and ‘mechanics’ and

it is the existence of that power (rather than the

preaise terms of the requirements actually estab-

lished by the Commission in the exercise of that

power) that Congress has made the test as te

“Whether or not Séction 7 of the Fair Labor

Standards Act is applicable to these employees.

Congress has gone out of its way to make this

purpose clear in cases comparable to the one be--

fore us.” (emphasis by the Court.)

To the same effect is Southland Gasoline Co. 4.

Bayley, VY US. AL

These same cases are also authority that Op. 423 of

the Morris: case) 3 to 4 per cent of the total carrier

services, distriliuted generally through the vear, Is

aiffielent. te enipower the Commission, although net

holding that avy specific proportion is required. This

oplion reviews prior cases—and contains other ib

lustrations.

At this point petitioner would like to present to this

Court a point raised in Question Presented, No. 2,

supra, and in the subheading to this treatment. Peti-

tioner presented this contention ino nearly identical

language to the Califoriia Supreme Court at pages

‘12,13 and 14 of its Petition for Hearing Owhich has

come forward, not as a brief, but as a part of the

transcript of the record).

It was shown in the Statement of Facts in the Cour

below, and in the Statement of the Case dierein, SH pid,

that petitioner had beon envaved sinee 1955 in the

hauling of huimber en route to ae | points. During

32

the entire period dowii to 1960, inclusive, beth plain-

tiffs below and petitioner believed the operations were,

as they admittedly had been prior to January 1, 1959,

in interstate commerce, and so exempt from the pro-

visions of the Fair Labor Standards Act. After 1960,

plaintiffs below brought this action and seught te

prove that during 1959 and G60 such exempt status

ne longer obtained. ‘To such contention is addressed

this argument.

Why a change in its status? It was making. the

shipments referred to in the Statement of the Case—

it was ready at any time to make out of state ship-

ments by trucks—if the orders came in. There was no

point of stoppage of its status. We have been able to

find nu case which says how--or when—such a right

is lost. Petitioner is not a common carrier, with pub-

lished tariffs—but, like all other such motor carriers,

enjoys quite’ an informal -status—determined by .the

nature of its activities. ay |

Petitioner submits that the facts set forth above

and the law discussed igthis petition shold settle the

controversy—i ind do se ithe it. Whatever rights’ peti-

tioner formerly had as a private motor carrier if still

has, It has never Jost them-—no one has ever taken

them away—no official body has ever notified it that

it has Jost its rights. Just when was there a termina-

tion? We have’ found no eriterion—but it must be a

long, long time. Would anyone stop petitioner if it

shipped a truckload of *tstuds”’ to the East coast to-

morrow morning? Or while plaintiffs were still

working for it? And if its rights had not been

terminated it still has them, and as a consequence,

33

during 1959 and 1960 plaintiffs were exempt from the

coverage of the Fair Labor Standards Act—just as

they had been in 1958 and prior years. Henee they

were not entitled to recover any of the amounts

aimed. Paar e.

Would an out of state delivery on January 1,.1958 -

have heen without the operation of the exemption? |

Or one on July 1, 1958? When, then, did the exemption

expire—iad are we not entitled to know when? If

petitioner had shipped out one load in December, 1959

would ‘it have been “reinstated”? If so, from what

source 7

When and how has the Interstate Commerce Com-

inission revoked the fight-to enjoy this privilege? Is

there any formal proceedings required ? Was there any

such preceeding? Was there any proceeding / Does not

the consideration of these numerous inquiries compel.

the conelusion that a finding of such termination was

absolutely essefitial to sustain a judgment in this case?‘

Only the Commission (which has not acted, and does

not- ordinarily act in such sftuations) or the trial

court in this ease could determine the situation. And

if the trial court ix to deprive petitioner of its ad--

mitted rights under the federal act then it must. neers-

sarily inake a finding to that effeet. We hare no find-

ing! . .

What were the findings’ of fact in this ease. ov,

perhaps, what were nof the findings of fact in this

case?

f

‘There were no findings as to the <pecific puerto. of

employment of any of the plaintiffs, the periods “or

which time and one half was to be paid, or the number

. 34

of hours at which the one and one half times basic

rate Was required by the law. There was a finding that

plaintiffs worked various times in excess of 40 hours

.per week and there was a finding that the. plaintiffs

each received a rate of pay of $2.37 per hour or more.

No finding was made as to the specifie rates of pay

upen which the overtime awards were computed or

made, And there are no findings of fact.on appellant's

affirmative defense that plaintiffs were exempt from

the overtime provisions of the Fair Labor Standards

Act. There are no findings of fact ayto the number

of hours worked by each plaintiff in excess of 40 hours

per week.

Actually, evidence consisting of the plaintiff's orig-

inal time cards (which have come forward in the’

record to this Court ) contradict ‘the tr lal court's find-

Ings of fact as to the amount due each plaintiff for

overtime. This has been heretofore set forth.

In computing the overtime hours for which plain-

tiffs based their claim. plaintiffs did not take a single

_work *’week as a standard. Instead, they averaged

hours over a semi-monthly period. (RT 52:6-16.) It

is quite patently contrary to the definition of over-

time set forth in the Act itself-—and it was so held in

Black v. Roland Eiectrical Co., 68 F. Supp. 117 (D.C.,

}). Marviand).

Whether or not plaintiffs were exempt from the

Fair Labor Standards Act is, of course, a question of

law. Plaintiffs must have proven the number of hours

worked in excess of 40 in any given work week. This

figure must ‘then be multiplied by one half the rate of —

reguar compensation applicable to any workweek

«

oH)

in which hours in excess of 40 were worked. It is a _

right created by statute. It is, therefore, the legal

duty of plaintiffs to clearly establish each element of

the right to recover and this has not been done. Nor

do the findings of fact so state.. When records are

adequate under the Fair Labor Standards Act (and —

they were in this case, and have come forward as a

part of the-record)- findings cannot be based—as were

the findings .here—upon estimates, fuessworky or

plaintiffs’ computations.”

Anderson ve Mt. Cloments Pottery Co., 328 ULS.

6SO ; .

Gorchahoff vu. Calif. Shipbuilding Corp, 63° F.

Supp. 309. | .

The trial court failed and refused to make findings

on the specific number of hours worked by each plaiir-

tiff in excess of 4 in each workweek for whieh un-

paid overtime compensation. is claimed—it failed to

find the regular rate ‘of compensation applicable te

each workweek for whieh unpaid overtime compensa-

tion is Claimed. The District Court of Appeal opinion

ignored the omission of such findings—ind/sponsable

to the judgment. .

“May sucha device frustrate an employer in the —

protection of his rights under federal statutes /|Star-

divant ov. Salt) River ValleP Water Users Assn.

(CAL, 9th Cir.) 249 F.2d 944, was an action com-

meneed under the Fair Labor Standards Act and an -

appeal which the Court said carried ‘ta whole attack

upon the findings and conclusions of the trial court’.

The findings m this case were somewhat comparalbe

to those in the instant case. The Court said (p. 950)

36

_ there should be a specific finding in that: **this should

set out the actual hotirs worked and the pay received

and the pay found due.” To petitioner this seems a

clear and fair statement of a rule of law which could

hardly be otherwise. The Court remanded the case

for specific findings or a new trial.

These are the computatiots on which the trial court

based the judgment—in its findinigs of fact the court

merely adopted plaintiff's figures as the amount of the

unpaid wages due each item, (CT 36:6-10.) As we

have seen, they are clearly erroneous and contrary ts

the law. The District Court of Appeal ignored them,

but, involving a federal right as they do, petitioner

hopes for relief in this Court. |

The opinion of the District Court of Appeal com-

ple tely omits reference to hotidays—a ve ry vital mat-

ter in the failure of the findings. The epinion likewise

attempts to support its holding by reiving upon Dal-

lum v. Farmers Cooperative Trucking Assn., 46. ¥F.

Supp. 785. (Apdx. A, p. 22.) This was merely a Dis-

triet Court 6pinion (Minnesota). It is the only author-

ity SO & ited and petitioner respectfully asserts that the

istrict Court there heid that the essential character

of the commerce determined whether the plaintiffs

were engaged in transportation of goods in interstate

commerce, It does not support the opinion we here

attack. 7

The District Court of Appeal opinion refers to the

shipment of feed mill parts (R.T. 144, et seq.+-also

statement of the case, mae as merely an ‘isolated

incident’*. (Apdx. A, p. 25.) —— it was one of

i)

: 37 |

many—including the direct shipment from the mill

over the public high way in California to the railroad

station and thence to Georgia, Texas and Arizona, dis-

cussed hereinabove. .

The opimion held .that the finding of the total

amount of overtime paid to each respondent was a

“Statement of ultimate fact”—citing in support’

thereof Nisbet v. Rhinehart, 2 Cal.2d 477, 482. (Apdx.

A, p. 30.) Again, that Court was in error, for the

Nishet case is strictly lomited by its terms to that type

of aetion in which a finding of indebtedness -is a

proper statement of ultimate fact. The Nishet case

recognizes only one exception to the rule that a gen-

eral finding of indebtedness is a conclusion of eh

That exception is the case of the “eonimioen count”

Petitioner respectfully submits that the Nésiet case

does not support the District Court of Appeal that the

hoiding of the amount of overtinie pay due is a proper

statement of ultimate facet. The net result, to be -

slightly repetitious, was to deprive “petitioner of its

rights under the federal! ‘statutes. ;

The correct California rule is set forth in the very

highly respected work of B. FE. Witkin on California

Procedure, Vol. 2, Trial, see. 113, af page S44. and in

the 1963 Permanent Supplement thereto (page: 569)

is found this language :

| “Indebtedness. In can action for accounting. a

general finding of inde btedness is insufficient if

the appellate court cannot discover from the

record the manner in which the account was eal:

enldted and ‘the items which entered into it.

(Shens: mv. Shenson (1954) 124 CLA. 2d 747. 754.

269 P. 2d 170.)”

The Shenson case involyed an accounting which failed

to show the court's couhy mutation.

The evidence, the findings and the conclusions. dem-

onstrate that the judgment was rendered without the

slightest consideration of the rights created by thie

Fair Labor Standards Act. Plaintiffs were awarded

monies fer unpaid overtime compensation (and pen-

alties, ‘plus attorney's fees) without considering the

Act's definition of overtime.” These awards actually

included compensation for hours plaintiffs did not

work—for holidays—even for hours they did not al-

lege in their complaint. And, of course, the total scope

of the plaintiffs’ activities must be considered ‘as-a

whole. |

The only reasonable contention that could be made

to uphold the findings of the trial eourt—affirmed by

the District Court of Appeal—would be refance upon

the finding that defendant (this petitioner) was sub-

ject to the. Fair Labor Standards Act. However, this

is not and cannot be a proper finding of gxesiltimate

fact. That such a finding is a mere conclusion of. law

is evidenced by innumerable authorities, including °

Kantar v. Garchell, 150 F.2d 47, (CLA., 8th

Cir.) : .

W cbster-Brinkley Co. v. Belfield, 166 F.2d 814.

(C.A., Sth Cir.). .

Petitioner realizes it cannot—even though it would

appear that it has already done so—imposed upen

this Court all the details+contentions—-and authori

ties—urged before the several state courts. It seeks

here only to cofivince this Court that it was ecessaty

-.

39

to have proper findings—that without them petitioner

has been wrongfully deprived of rights guaranteed

‘to it by constitutionally tested federal enactments;

and that such holding would in the~-future affect

“many persons, and that. hence the writ should be

‘granted. _

CONCLUSION

: ave ly the State Court here has decided a eee

question of substance ‘in a manner which petitioner

q

believes is probably not in accord with applicable de-

cisions of this court” (Supreme Court Rules, 19(1)

(a)); and surely petitioner has now established that

such belief was correct. The granting herein of the

writ of eertiorari applied for would serve two pur-

poses—hoth of which are desirable—both of which are

salutary—both of which are of importance. In im-

portance to the public ‘we have a. factor particularly

close to the heart of ‘his Court, in that it is of tre-

niendous importance tu a very considerable number of’

people—to all of che people—that a State Court be

not permitted:to deprive such persons, either real or

artificial, of the protection afforded to them by the

Constitution of the United States, or by enactments

of the Congress which have been declared to be within

the provisions of such Constitution, by the very simple

expedient of omission or refusal (in the present case

flat refusal) to sign findings of faét which are re-

quired by State, as well as Federal, law, as an essential

basis forthe entry of a judgment.

As petitioner has carefully pointed. out—and_ has |

tried to do so clearly and distinctly and unmistakably -

”

—brushing to one side other issues which were raised

in the lower courts and whieh it might also present to

this Court—all to the end of establishing both facts

and law which will, it trusts and believes, impel this

Court to issue the writ here prayed for. The other

reason! very important to petitioner and doubtless also

of -interest to this Court—although it fears not det >r-

minative upon that.ground alone, is the corr ection of

the grave injusticé by which petitioner will be mult

of vevy. considerable sums of money to go to the poek

ets of plaintiffs below, and of their attorneys, for

wages, penalties, and fees, none of ‘which were ever

in the slightest degree expeeted ‘or anticipated’ during

the period of employment or until long thereafter.

For the foregoing reasons this petition for a writ”

of certiorari sliould be granted.

Respectfully submitted,

JOHN F. Casey,

cme Counsel for Petitioner.

Timotoy W. O'BRIEN,

-JAMES F. Kempe,

| Counsel of Record.

(Appendix Follows) .