Appendix — Mendo Wood Products, Inc. v. Mulder

Page

; - Index to Appendices

Appendix A—Judgments:

J. Memorandum Opinion of the superior Court

2. Bindings of Fuet and Conelusions of Law of the

SupeFior Coult 2.0... -cccccsecescne

3. Jwlyment of the Superior Court

Opinion of the Distriet Court of Appeal oo."

weeteteces

t . be

—

Order of District Court of Appeal Denying Petition

TO GRCMONTOIE 5 5.0 osc eon cede ass

; ? .

6. Order of Supreme Coury of the State of California

Denying Petetion tor Hearing

Appendix B-—Constitutional Provisions and Statutes Whieh

the Case Involves;

}. Constitution 61 tle United States, Seetion S, Clause 3...

2. Constitution of the United States, Amendment NIV,

Section ]o..... Mende ePE RIOTS Pd ee wea ES ile Malan

$. Tithe 2s U.S.C. Judiciary aid Judicial Procedure, See-

at TORE iis cs bacasoitexicy POL Ah OF

4. Fair Labor Standards Act (Title 29 U.S.C., Labor

Chapter S, Sees. ZOT, 235, 210,

5. Motor Carrier Net of 1955 (Tithe 49 U.S.C. Transpor-

tation, Interstate Commerte. Net, Part TL, Seetions 302

Sf eer eee reer eer ere ;

6. Portal to Portal Pay Aet of 147 (Tithe 2o Use

Labor, Chapter G Sees. 255 and 260

7. Code of Federal Regulations Tith: 29, Labyr. Appendix,

-

Chapter 5, Sees. T7206). Ody ated Seetion Ts5.0 (05%. ,

*

* Also contained in) Tith 29, Code of Federal Repnila-

tiots, Seetion TS5 0, until that seetion was reniurabered

as T54.1 by 26 Federal Regulations 7732. Atgust 1s,

"OOH. and the danguage slightly, changed, bat) not ane

sueh ta. ver as to affeet this litigation.

ae ach

-—

~~

te _ Appendix A ~

Title of Court and Cause | =

MEMORANDUM OPINION AND OKDER

FOR FINDINGS

This is an action brought by the plaintiffs against

the defenmlants for overtime compensation under the

Fair Labor Standards Act. It is conceded by the

_ defendants that their operation ts covered by the Pair

Laber Standards Act unless they come within the

Motor Carrier Exeqnption found * Section 13 of the

Act.

It has been conceded by the plaintiffs that they were

employed by defendants in interstate conumerce prior

to the year 1959. The effect of. this pre 1959 activity

in interstate commerce will be discussed later in this

opinion. Likewise, there is.no basie fact conflict as te

the nature of the operation during 1959 and 1960. The

hasie dispute is whether or not the faets as conceded

Lring the shipments under the provisions of the Motor

Carrier Act. During the vear 1959-60 the defendants .

shipped lumber by two different means and each of

the plaintiffs was Involved in each of the methods of

shipping. The first method used by the defendants for

shipping their lumber was te haul it from their mill

over private roads to the railroad where the lumber

was loaded on, railroad cars and shipped out of state,

and admittedly in interstate commerce. Each of the

plaintiffs claimed that they drove trucks from the mill

to the railroad entirely on-a private read, It was con-

ceded that some trucks may from time to time have

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

‘i negligibl part of the trip and that most of the

’

trucks did not use this route. There is ne testimony to

contradict the plaintiffs’ claim that they did not tva-

verse U.S. Highway 10L in making deliveries to the

railroad. It is contended by the defendants, however,

that because the plaintiffs went under Highway 101

they thereby somehow became invelved with a public

highway which brings them within the provisions of

the Motor Carrier Act. The Cotrt i. not persuaded

that this is so and feels that this portion of the trans-

portation clearly comes Within the holding in 34 motor

carrier cases, Interstate Commerce nob, cited in-the

plaintiffs’ brief, ;

It is the finding of the Court, therefore, that such

shipments did not bring the plaintiffs within the scope

of the Motor Carriprs Act and, hence, -outsid> the

_ application of the Fair Labor. Standards Act.

The other type of shipment by the defendants dur-

ing 1959 and 1960 was a truck haul from the defend-

ants’ sawmill over the publi¢ highways, to wholesale

and retail himber yards, where the lumber was un-

loaded from the truck, held in. the yard, and later

trans-shipped to other poitits. The evidence does not

show that the defendants intended that the lumber be

shipped out’ of ‘state tipon- reaching its California

destination, no; did they intend that it, remain in the

state. It seems apparent to the Court that their pri-

mary concern Was With selling it, and that its dispost--

- tion after delivery by them was entirely within the

diseretion of the buyer of the Jumber, and that it

cannot be held that these hauls from the defendants’

‘mill'te the humber yan e ‘dag interstate commerce,

3

It seems to the Court that these shipments were simi-

lar: to. those deseribed in Dallum vs. Farmers Co-

operative Trucking Association, 47 7 Supp. 785, 789,

where the Court said:

5 andi it was the plan and intention of

the National Butter Company to store the butter

at St. Paul until such: time as transportation

thereéfto customers could be made. No further

movement of any particular part to any particular

person was contemplated. Delivery depended upon

the demand. of the customers of the National But-

ter C omp% any.’

The Court went on to indicate that under these cir

cumstances the local transportation was not in Inter-

_ state Commerce, |

We now return to the significance of interstate

transportation priot to 1959. The defendants. have

urged that even though a small part of the time spent

by the plaintiffs while i in the employ of the defendants

Was spent in intérstate shipments this would make all -°

of their employment exempt from the application of

the Fair Labor Standards Act. The case of Morris’ vs.

MeComb held that even though less than 4% of the

shipments of the employer were’ in Interstate Com-

merce, Where the employees were engaged indiserimi-

nately in that activity they were covered by the Motor

Carrier Act and exempt from the Fair Labor Stand-

ards Act. This case was followed in the case of Rogers

Cartage Company vs. Reynolds, 166° Fed. 2nd. 317.

where the Court held an employee who hac spent 39

out of 55 weeks engaged intra-stite shipments to *

nevertheless be covered by the Motor Carrier Act and

4

exempt from the Fair Labor Standards Act. If the

plaintiffs had engaged in even an occasional shipmient

in interstate commerce during the years 1959 and 1960

there would be no question, about their being exempt

from the provisions of the Fair Labor Standards Act.

But they did not do that, and hindsight new enables

us to see that there was a complete change in the

method -of operation beginning with January. 1959.

The Court feels wat they were no- Jonge® covered by

the Motor Carriers Act on January 1, 1959, and that

from that time forward they were subject to the pro-

visions of the Fair Labor Standards Act.

Section 207 of the Fair Labor Standards At indi--

cates that the basis for determining hours. shall be

weekly, Since it provides ‘that **No employer shall

employ any of his employees ... for a work week:

longer than 40 hours unless aa employee receives:

compensation for his employment in excess of the

hours above specified at a rate not less than 1's times

the regular rate at which he is employed.”’

It follows: therefrom that’ Plaintiff. Mulder shall -:

have judgment for $2.220.90, Plaintiff Woodall, shall

have judgment for $2,240.03, “and Plaintiff Pee

--_—

shall have judgment for $1885.77.

Normally an employee is entitled te liquidated dam-

ages equal to the-amount of overtime pay whieh he

should have been paid. It is provided, however, in 29

U.S.CLA, 260, "Tf the emplover shows to the satisfac

tion of the Contt that the act or omission giving rise

te such action was in geod faith and that he had

reasonable gréunds for believing thathis act or omis-

sion was not a violation of the Fair Labor Standards

9 g

Act of 1938 as amended, the Court may in its sound

discretion award no liquidated damaes or award any

amount thereof not to exceed the amount specified in

Section 216()) of. this Title.’ Here it is urged that:

based upon this section the Court should not make an ~

award of liquidated damages. It is well established

that the burden. of showing gvod ‘faith is upon the

defendants in an action such as this.

See Parks vs. Pucket, 154 Fed. Supp, 42,850.

It is stated in Rothman vs. Publicker Industries,

4 ae ; . e . . ° bed ,

Inc., 201 Fed. Reporter 2nd 618, 620, after quoting the

above section of the United States Code, as follows:

**We. understand this language to impose upon

the delinquent employer who had escaped the pay-

ment of liquidated damages a plain and substar-

tia] burden of persuading the court by Proof that

his failure to obey the tatute Was both i Mi goed

faith and- predic ated upon such reasonable

grounds that it would be unfair to IM Pose upon.

him more than a cempensatory verdict.”’

i

In that opinion the court approves the languave of

the District Court, which reads as follows:

~The utmost that eguld he. derived from. the

evidence in this respect is that the employer had

the héna fide belief that the plaintiff was within

the e xempt Glass. It is well settled that reasonntie

cause in the portal to portal act means moore than

that. The Court has no option other than to add

liquids ited. damages and counsel fees to the ver-

dict.

Based pon these authorities the Court is of the

Oplegn thi it it has. HO option but to add hanidated

damages te the verdiet in en amount equal to the

overtime pay. In addition, the Court is-obligated by

6

the -Act to make an award of attorney's fees to the

plaintiffs. The Court is of the opinion that 8500-00 is

a reasenable attorney's fee for each plaintiff in this

“action.

This brings us to the bre: tkdown- claim of Riddle.

The Court finds it diffelt to understand defendants’

claim that Riddle is net entitied to standby time dur--

-ing breakdowns. ‘It seems to the Court that it ‘is im-

material that the emplover had no practicé of paying

for breakdown time. The Court feels that defendant

Riddle has adequately established iis claim to break-

down time in the stm of £511.92, but that ne ither

® attorney’s fees nor a penalty would be appropriate in

this instance for it is not shown that this breakdown

time amounted to either overtime time not intluded

in the previous award or any othér form of compen

sation within the Fair Laher Standards Act. Actually

‘this award is based upon an implied contract to pay

the employee for time, spent for the benefit of the

employer and ix not based upon the Fair Labor Stand-

ards Act as are the rest of the claims-in this action.

‘The plaintiffs will prepare findings of fact and con-

clusions of law consistent with this opinion and the

matter will be on the Court's Calendar for the settle-

ment thereof on December 20, 1962.

Dated this 20th-day of November, 1982,

- Robert U. Winslow

6° Judge —

Filed Nov. 23, 1962 |

J. Broaddus, County Clerk

By MH, Deputy

*)

r

_ oO

[Title of Court and Cause]

FINDINGS QF FACT AND CONCL USIONS

OF LAW

The above entitled action came on regularly for trial

on the 30th dav of April, 1962, befare the court sitting |

without a jury, a jury having been expressly waived,

Thomas F. Cleland appearing as counsel for the plain-

tiffs, and Timothy O’Brien appearing as. counse] for.

the defendants, and the court having Heard the testi-

mony and having examinéd the proofs offered by -the

respective parties, and the causé having been sub-

mitted to the court for deeision, and the court being

fully advised‘in the premises now makes its findirtes

of fact as follows: . .

- Findings of Fact

1. That it is true that at all times herein men-

tioned defendants were engaged in the buying, proc-

essing, selling and transportation at Wholesale and

retail of lumber and forest products, That at said

times, defendants were subject to the laws of the State

of California arid to the provisions ¢f the Fair Labor

Standards Act enacted by the United States € ONLTESS,

Th: it it is true that during the years. 1959 and 1960,

the plaintiffs herein were employed by defendants as

truck drivers and while so employed, plaintiffs, at.

Various times and in various weeks, warked in excess

of forty (40) hours per week. That for said hours.of

overtime, plaintiffs were entitled to time and a half

whereas plainti Fs were paid only straight time, Theat

the hourly compe nsation of plaintiffs at straight time.

Was $2.37 por hour or more, That the amount of un-

oe

e

8

°

-

paid wages due plaintiff Albert FE. Mulder is the sum

of $2,220.90. That the amount of unpaid wages due

plaintiff Robert B. Riddle is tié sum of $1,885.77.

‘hat the amount of unpaid wages due plaintiff Arthur

—O. Woodall is the sum of $2,240.03. That cach of said

~ plaintiffs is entitled to said swums. That the same has

been demanded from defendants, but they have re-

| fused to pay said sums to, plaintiffs. Thai it has be-

come necessary for plaintiffs and each of” them to

employ an attorney ig prosecute this action. That the

sum of $500.00 Is a reasonable suri to allow for each

plaintiff herein for the services rendered by said attor-

ney. That the total of saidssum so allowed is the sun

f $i 50).00, That it is true that the failure of said

mae rs to pay said’ overtime is a violation of law

and said employers are therefore liable te said em-

plovees, the plain herein, in ab additional amount

to the wipaid wage. as iiquidated damages.

2. ‘That it is‘true that Robert b. Riddle while in.

the employ of defendants worked a total of 216 honrs

for which he received no .pay whatsoever. TH.at. the

current rate of-pay at the time was $2.37 per hour.

That the wages. due and unpaid to sad’ plaintiif is the

sum of $511.92. That the defendanis are indebted to

plaintiffs in the sum of $511.92 for said unpaid wages.

From the foregoing facts, the court con: ludes :

Conelusions of law.

lL; Tne plaintiff Albert F. Mulder ts entitled to

judgment against defendants in the sum of $I P9Q), MH)

for unpaid overtime wages plus interest at the rate of.

. :

:

9

‘ . s

>

7% -per annum from June 1, 1961, plus the sume of |

$2,220.90 as liquidated damages plus the sum of

$500.00 for attorney's fee. plus costs.

2. That‘the plaintiff Robert B. Riddle is entitled »

to the ‘sum of $1,555.77 unpaid. overtime wages pius

interest at the rate of 7 per annum from June L,

1961, plus the stm of $1,885.77 as liquidated, damages

plus the sum of $500.00 attorney's fees plus the sum of

$511.92 unpaid wages with interest from Jure 1, 1961,

together with his costs of suit. | :

3. That plaintiff Arthur O. Woodall is entitled to:

the sum of $2,240.03 unpaid. wages plus the interest:

thereon at the rate.of 7% per annum from June’ I.

1961, plus the sum of $2,240.03° icghidated damages

plus. the sum of $500.00 attorney's fees together witis

liis costs. as

Let judgment be entered avcordingly.

TFated: This 21 day of December, 1962.

: Revert 1]. Winslow

Judge. of the Superior Court

a

10

+

PROOF OF SERVICE

‘State of California

County of Mendocino.—ss.

I, the undersigned, declare under se unis of per-

jury: ieee | si

That I was at the time of the service of the papers

_ he ak ed to, over the age of. eightee n years and

~ not a party to the within entitled action.

That on November 30, 1962, I served a true cypy of

the Findings. of Fact and Conclusion of Law in the

above entitled action on Katherine Shanyfelt, legal

secretary for Timothy O'Brien, Attorney for De fend-

ants, 150 North Pine Street, Ukiah, California.

Dated: November. 30, 1962.

Sharon Johnson |

“Filed 7 21, 1962

W. J. Broaddus, Counti- Clerk

By M. M., De ‘puty.

B, *

[Title of Court and Cause}

JUDGMENT

This cause came on regularly for trial before the —

court sitting without a jury on the 30th day of April,

1962, Thomas F. Cleland appeared as attorney for the

plaintiffs, and Timothy O’Brien appeared as attorney

for the defendants, and the Court having ‘heard the

testimony and baving éxamined the proofs offered by

the respective. parties and the Court béing fully

advised on the premises and having filed herein. its

findings of fact and conclusions of law, and having

directed that judgement be entered in accordance there-

with; now, therefore, by reason of the law and findings

aforesaid : :

It is hereby Ordered, Ad judgedeand Decreed ;

1. That plaintiff Albert E. Muldér have judginents

against the defendants and cach of t} om the sum. of

$2,220.90 with interest thereon, at the rate of 7% per

annum from June 1, 1961, and the further sum oof

$2,720.90 with interest thereon at the rate of 7% per

aa from date hereof unti!. yaid, *

That plaintiff Robert I. Riddle have Indgment

astitiie’ the defendants and each of therm in the sum

of $1.-5%77 plus interest thereon at the rate of

per any am from June 1, 1961, anid the further sum of

$2,897.69 with interest thereon at the rate of 7% per

annum from date hereof until paid. | |

3. That plaintiff Arthygr Of Woodall have judgy-

Snont against the defe vidal cand each of the 1 in the

sum of $2,240.03 with interest at the rate of 7 per

annum from June 1, 1961, and judgraent for the

further. sum of BS 740.03 with interest thereon at the

rate of 7% per annum from date hereof until paid.

4. That plaintiffs have judgment against the de-

fendants for their costs herein taxed at §....

Dated : "This 21 day of December, 1962.

Robert L. Winslow

one Judge of the Superior Court

‘PROOF OF. SERVICE

State of California | y :

County of Mendocino.—ss.

%

I, the undersigned, dec — unde 'T penalty of per-

jury : :

That 7 was at the time of the service of the papers:

herein referred to, over the age. of eighteen years and

not a party te the within entitled action.

That on November 30, 1962, J served a crue copy of

the Judgement tn-the above entitled aetion on Kather-

ine Shany.elt, legal secretary for Timothy O’Brien,

Attorne v for Defendants, 150 North Pine Street,

A kiah, California. aA

Dated: Noveasker 30, 1962.

. a Se . Sharon Johnson

Filed Dee. 21, 1962

W. J. Broaddus, County Clerk

" By M.M., Deputy

Judgmetits Book 38 Page 331

Entered Dec. 21, 1462

¢.

.

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13

In the District Court of A ppeal

State of California.

First Appellate District

Division Two

1 Civil No, 21,307

ooo -----—- &

Albert Mulder, Robert I. Riddle, wa’

Arthur ©. Woodall,

Plaintiffs and Respondents, |

Mendo Wood Products, Inc., E. C. |

Welch and J. D. Welch, Jr., |

: Defendants and Appellants.

ace Romero Mine Tied AACE

OPINION

‘This is-an action by three: former employees of

defendant Mendo Wood Products, Ine. to recover

wages allegedly due them under the Fair Labor Stand-

ards Act of 1938 (29 U.S.G.A., §8 201 “et seq.). The -

complaint alleged that plaintiffs Albert Mulder, Albert

Woodall, and Robert Riddle, were each employed ws

truck drivers by the: defendant for. specified periods

during the vears 1959 and 1960; that each of the

plaintiffs worked’ a considerable number of hours in

excess of 4° hours per week; that at the times siieh

employment was performed, defendant was subject te

the provisions of the Fair Labor Standards Act and

+

i ld

«

was required tom pay plaintiffs time-and-a-half for

their hours of overtime;-that defendant had | in fact

paid plaintiffs only straight time and tlat they. were

therefore entitled to recover he difference between —

-time-and-a-half and straight time for the hours of

overtime worked, liquidated damages in an equal

amount, and attorney's fees. In addition, plaintiff

Riddle alleged that during the years 1959 and 1960,

he had worked a number of hours in the defendant's

employ for which he had received no pay whatever)

He sought straight wages for, the hours so were

liquidated damages in an equal amount, and attorney

fes.

The defendant answered, admitting that it was sub-

ject to the Fair Labor Standards Act at the times

mentioned in‘the complaint, and that it had emploved

“plaintiffs as truck drivers during the periods alleged.

As an affirmative defense to each cause of action, de-

fendant alleged that it was a private carrier of prop-

erty by motor vehicle within the meaning of Part II

of the Interstate Commerce Act (49 U.S.C. A. 88 301

et seq.) ; that plaintiffs were employees with re spect to

whom the Interstate Corimerce Commission had the

power to establish qualifications and maximum hours

of service pursuant to said act; and that plaintiffs

were accordingly exernpted from the. maximum hours

and. overtime provisions ‘of the Fair Labor Standards

Act by section 13, subdivision (>) (1) of said act (29

US.C.A., §213(b)(1))..

The evidence established that defendant was a Cali-

fornia corporation engaged m the manufacture and

15

sale of studs, and that its principal place of business

was located at the Ridgewood Ranch in Ukiah, Cali-

-- fornia. In order té deliver-its-studs to-purchasers, the—

defendant used trucks which it leased from other’

companies and which were eperated by drivers in its

own.employ. Plaintiff Mulder was employed by the

defendant as a truck driver during the period from

January 1, 1959 through September 15, 1960; plaintiff

Woodall, during the period from J anuary 1, 1959

through July 15, 1960; and plaintiff Riddle, during the

period from January 1, 1959 through August 15, 1960.

Time cards covering the periods in question showed

that each of the plaintiffs had worked a substantial

number: of hours in excess of 40 hours per week, for

which they were paid only straight time. Computa-

tions based upon these time cards demonstrated that

the difference between straight time and time-and-a--

half pay for the total number of overtime hours

‘worked came to $2,222.90 in the ‘case of plaintiff

Mulder ; $2,240.33 in the case of plaintiff Woodall; and

$1,885.77 in the case of plaintiff Riddle. In addition,

plaintiff Riddle, during the period fon May 1, 1959

through July 31,-1960, spent 216 heurs attending his

truck during breakdowns on the road and received 10

compensation whatever for this tims. Straight time

pay during the period in question was $2.37 per hour.

The evidence relative to the interstate character of

defendant’s trucking operations revealed that in the

year 1958, defendart’s drivers did transport shipments

‘ of studs to various out-of-state destinations. It was

conceded by the defendant, however,. that no out-of-

16

state deliveries were made. during 1959 cr 1960. The

testimony pertaining to the defendant’s reason for dis-

continuing these deliveries was somewhat conflicting.

Elwood Welch, the secretary of defendant corporation,

testified that there had-been no change of .company

policy commencing in the year 1959, and that the

defendant was at all times willing to sell and deliver

its studs to both in-state and out-of-state buyers. °

Plaintiff Mulder testified; however, that there had

been a definite change in delivery procedures subse-

quent to 1958 and that the defendant henceforth ar-

ranged to have its out-of-state buyers come to the

Ridgewood Ranch and pick up the studs ordered in

their own trucks. He also testified that the defendant

did not have either an Interstate Commerce Commis-

sion permit or Interstate Commerce Commission

plates for its trucks. , | |

In any event, all of the hauls made by defendant's

drivers during the years 1959 and 1960 were between

two points within the State of Califoriia. In the

majority of cases, the drivers would pick up studs at

the Ridgewood Ranch and deliver them to various

traets under construction and. to retail or wholesale

lumber dealers. Although the defendant introduced .

evidence to the effect that certain of these wholesale ,

dealers ultimately shipped some of the defendant’s

studs to outof-state retail buyers, there was no evi-

dence.that such shiyments were part of any continuous

out-of-state movement commencing at the Ridgewood

Ranch. To-the contrary, plaintiff Mulder testified that

the bills of lading or waybills showed the ultimate

17

“ destination of the loads delivered by defendant’s driv-

-er’s to be the lumber yard,of the particular California

wholesaler. Mr. Welch himself confirmed this testi-

“mony, and stated that the defendant’s duties with re-

gard to its studs ceased upon delivery to an in-state

w':olesale customer, that the defendant did not under-

iake to tell its wholesale customers what te do with the

studs, and that any further shipment of the studs was

-dictated by the wholésaler’s own requirements and. by

orders which it might receive from its own out-of-state

customers.

In addition.to the intrastate shipments to tracts and

to retail and wholesale lumber dealers, there was also

evidence that the defi ndant’s drivers were occasionally

required to haul studs, by way of private road, from

the defendant’s stud mill to a railroad -siding also

located on the Ridgewood Ranch, where the studs were-

loaded on ears and shipped to various out-of-state des-

‘tinations. The-total distance from the mill to the sid-

ing was some 114 to 2 miles.

There was also evidence that sometime during 1959,

defendant’s drivers delivered the component parts for

a feed mill from the Miller Manufacturitig Company

in Modesto, California, to the Ridgewood Ranch, and

that certain of these parts had been manufactured in

other states. The feed. mill machinery had been or-:

dered by Welch & Welch, @ partnership, whose prin-

cipal place-of business was also located at the Ridge-

wood Ranch and whose members were identical with

the shareholders of defendant corporation. Mr. Welch

testified that the two companies frequently exchanged -

18

equipment -and labor. and that defendant corporation

had provided the trucks and drivers to pick up and

deliver the feed mill parts ordered by Welch & Welch.

Mr. Thompson, the president and general mariager of

the Miler: Manufatturing Company, testified that _

Weich & Welch had ordered the parts for the feed mill

from his company, that certain of. the parts had. been

manufactured by his company in Modesto and. other

parts had been ordered from out-of-state manufactur-

ers. Mr. Thompson also testified that’ certain of the

parts manufactured outside the state had-been pur-

chased by his company from dealers within the state,

and-that other parts which had been ordered directly

from out-of-state sources were stored by his company |

' for some five or six months before heing sold to a

particular in-state customer.

‘Upon this evidence, th: trial court found that dur-

ing the years 1959 and 1960, the defendant was subject

to the provisions of the Fair Labor Standards. Aét

and had employed plaintiffs as truck drivers; that at

various’ times during these years,: plaintiffs had

‘worked in excess of 40 hours per week’; that although

plaintiffs were entitled to Gnente mea for the |

hours so worked, defendant paid them only straight

time; that plaintiff Muider was entitled to unpaid

vages In the amount of $2,220.90, plaintiff W oodall to

Meio wages in the amount of $2,240.03, and plaintiff.

Riddle: to unpaid wages in the amount of $1;885.77;

that defendant's refusal to pay the amounts due had

necessitated the bringing of the instant action and that

$500 was a reasonable amount to allow each plaintiff

19

¢ Sf

-for attorney's fees; that plaintiffs nine det entitled

to liquidated damages in the amount of their unpaid

wages. The court also. found that pleintiff Riddle had

worked 216 hours for whieh he received no pay what-.

ever, that his wages s at that time were. $2.37 per hour,

and that he was entitled to recover the sum of $511.92.

Judgment was accordingly entered and det endant ap-—

vealed therefrom.’ |

Appellant first contends that its trucking oper: rtions

were-exempt from the wage and hour provisions of the

Fair Labor Standards Act by virtue of section 13, sub-

(division (b)(1) of said act (29 U.S.C.A,, § 213(b)

(1)), which provides in relevant part that ‘*The pro-

visions of section 207 of this titfe shall not apply with |

respect to any. employee with respect to whom the -

Interstate Commerce Commission has power to estabe

lish qualifications and maximum hours of ser Vice a

sudnt to the previsions of section 304 of Title 49.

Section 304, subdivision (a) ( 3) of Title 49 (49

U.S.C.A., § 304(a)(3)), provides that “It shall be the

duty of the Commission . . . [t]o establish for private

carriers of property by motor vehic le, if need therefor

is found, reasonable. requirements to promote safety

of ope ration, and to that end prescribe qualifications °

and maximum hours of service of employees, arid

standards of equipment.’ Pursuant to section: 303,

subdivision aed (49 ionic: § 303(a)(17)),

ixihch Oe notice of appeal actually provided or ge **de-

fendants Mends Wood Products, Ine., B.C. Weleh and oD.

Welch, Jr.. hereby appeal . . from said judgment,’” the ia

two individuals appear t hav e abandoned their appeal and have

filed no briefs w ith this ourt. ;

ro ns:

... [t]he term ‘private carrier of property by motor: .

vehicle’ means any person ... Who or which transports

in interstate or.-foreign commerce by motor vehicle.

,property of which such person is the owner, lessee, or

‘bailee, when such transportation is for the purpose of

sale, lease, rent, or bailment, or in furtherance of any

commercial enterprise.” Pursuant to section 303, sub-

division (a)(13) (49 U.S.C_A., § 303(a)(13)), *. ..

[t]he term ‘motor vehicle’ means any vehicle ... . used

upon the highways in the transportation of passengers

vr property ...’’ Seetion 303, subdivision (a) (12) (49

US.C.A., § 303(a)(12)), provides that **. . . [t]he

term ‘highway’ means .the roads,. highways, streets,

_and ways in any State.” ; ;

The application of the exemption set forth in section

13, subdivision (b)(1) of the Fair Labor Standards -

Act is determined solely by the existence of power to

regulate in. the Interstate Commerce Commission and

it is not necessary for the commission to hive exer-

cised this power and actually established qualifications

and maximum hours of service, (Levinson v. Spector

Motor Co. (1947) 330 U. S. 649, 661.) |

Appellant asserts that it clearly qualified as a *‘pri-

b

vate carrier of property by motor. vehicle’” subject to-

the commission’s power to regulate because tne inter-

state character of its operations was conclusively’ es-

tablished by evidence that (1) appellant's trucks were

driven to out-of-state destinations prior to 1959 and no

change in company policy occurred in 1959; (2) ap-

pellant’s trucks delivered studs to wholesale lumber

‘dealers who subsequently ‘“transhipped”’ these studs .

’

al

to_ out-of-state destinations without’ reprocessing; (3)

appellant’s trucks carried machinery from the Miller

Manufacturing Company in Modesto tothe Ridgewood |

Ranch, and certain’ of this: machinery was ordered

from out-of-state manufacturers; and (4) appellant’s

trucks carried studs ‘to railroad sidings, where such

studs were loaded and ‘shipped to. out-of-state des-

tinations. si | |

Taking’ these contentions .in ordér, it is apparent

that the testimiony pertaining to the presence or ab-

sence of a change in company policy regarding out-of-

state deliveries presentéd a question of fact for the

‘trial. court. Although .appellant’s secretary testified

‘suffice to render appellant a private

that no such change oceurred, there Was evidence that .

appellant had arranged to have its out-of-state buyers

pick up their studs at appeilant’s mill at all times’

subsequent to 1958 and that appellant made no single

out-of-state delivery- during 1959 and 1969. Under

such circumstances, it clearly cannot be said that the.

evidence was insufficient as a matter_6f law to support

a finding that here kad been a change in company

policy and that appellant had. deliberately discon-

tinued its out-of-state deliveries afier 1258.

~The evidence that appellant: delivered -its products

te California wholesalers, some wf. whom ultimately

reshipped the products out of state, spmilarly does not

1 i care subject to -

the regulatory powers of the’ Interstate Commerce

Commission. Sine the evidence clearly indicated that

appellant bad no further interest in its studs following

sale and delivery to California wholesalers, it is appar-

_ ent that appellant did not participate in any continu-

ous movement of products into interstate commerce.

In Daum v. Farmers Co-Operative Trucking Ass'n.

(D. Minn. 1942) 46 F. Supp. 785, the court held that

butter which was delivered to a distributing center

and stored until such time as it could he transported

to customers was not in iriterstate commerce until such —

time as, it left the distributing cénter enroute to out-

of-state customers. Although the butter was trans-

ported to the, distributing center vith knowledge that

it might eventually be shipped out of state, no further

movement of the butter to. any particular person was

contemplated aud ‘delivery was dependent upon ‘the.

demands of customers. The court stated, ** Mere inten-

tion. by the owner to place goods in interstate coin-

meree, or the gathering of goods at a depot for that

purpose, is not. sufficient. It must appear that the

‘goods have entered upon transpertation to another

state before it can be said that they are in interstate

commerce, (Pp. TS7-7Td5a, )

In the present case, the record Is ine oid of any evi-

deyce that appellant’s studs were already destined for

a particular out-of-state customer.at the ume they left

the Ridgewood Ranch. The evidence establishes, to the

contrary, that appe sl: int seld its studs only: to Califor-

~ Ila whole ssalers and: that it had no foreknowledge of

the fact that certain of its studs might, ultimately be

shipped ‘out of state.

Appellant's delivery of feed mill parts to the Ridge-

wood Ranch presents the converse situation. The evi-

dence reveals that the machinery in question. was

23

ordered by We ch & Welch'from is Miller ‘Manufac-

turing Company in Modesto, California. Although it

is true that certain of these parts were ordered by the

Miller - Manufacturing Company , from out-of-state

sources, there is ho indication in the record that either.

Welch & W ele: or appellant and its drivers were

‘aware of this fact. In addition, there was evidence to

the effect that certain of the parts which had. been

manufactured out of state Were, either obtained from

California suppliers or were re tained i in the war chouse

of the Miller Mannfacturing Company for se vera |

months prior to their delivery to the Ridgewood -

Ranch. Under such circumstances, we believe the trial

court would be justified in conchiding that the parts in.

_ question were No longer in interstate transit when they

were picked up by appellant’s trucks. | Moreever, in

our opinion an isolated incident of this natiire is not

sufficient to render appellant and its e a s subject

to the regulatory powers of the Interstate Commerce

Commission. |

The deliveries to the local railroad siding on the

Ridgewood Ranch.appear to ‘fall direetly within the

holding of Henry W. Robe rtson Contract Carrier Ap-

plication { (1942) ) 34 L.C.C. Reports, Motor Carrier

Cases, No. M.C96212. In. that case, the applic ae

‘sought a permit authorizing his operation in: inter-

state or. foreign commerce as a contract carrer hy

motor vehicle, The evidence revealed that-the appli-

cant tranisperted zine and lead concentrates from the

mine bins to cars at railroad siding rs, Where they were

loaded and shi; oe tu ‘out-of-state poitits. The ship

24+

ments from the nines to the sidings covered distances

of not. more than two miles .and were entirely intra-_

state and over private rights of way. These Shipments

were made, however, with the intent to transport, the

concentrates in ea contimuous Movement to out-of-state

‘destinations, The commission nevertheless held that the

applicant was not subjeet to its regulatory powers. in

so hGiding, the commission pointed out that Part HH of

the Dnterstate Commerce Act, from which it derived

its powers, defined ‘tmotor vehicle’? as ‘any vehicle

. used upon the highways...’ (see 49 U.S.CLA., §

3053(a)(13)) and further defined “highway” as ‘the

reads, highways, streets, and ways in any State’’ (see

49 US.C.A § 303(a)(12)). Since the applicant

shipped his woods only over private rights of way, he

did not qualify as a contract. carrier ‘hy motor ve-

hicle’’ within the meaning of the act.

In the instant case, appellant’s drivers similarly

made practically all of their trips to the railroad

siding entirely over a private road on-the Ridgewood °

Ranch, the only exceptian occurring when the load was

of such an unusual size that it would not go through

the underpass beneath Highway 101, at. which time,

for a short distance, the trucks would traverse said

highway. It is alse to be noted that. said highway

traversed the Ridgewood Ranch, the owner of the fee

to the area over which the state enjoyed an easement

for the purpose of the highway use.

Appellant strenuously argues that the trial court’s

method. of computation fails to comply with the Fair

«

Labor Standards Act and demands 2 reversal of the

20

judgment on this ground alone. We have read the

testimony and examined the exhibits offered on behatf —

of plaintiffs, and we find no support for such conten-

tion. The appellant ignores the fact that we are faced.

here not with persons working a set five-day week w ith.

an eight hours per day schedule of employment, but

‘rather truck drivers who worked a seven-day week

with only an cecasional gpy off each month, if for-

tunate, and whose pay was based on an hovrly -rate

requiring the truck “to be moving, refueling, loading

or unloading, the hours of pay necessarily varying

with the distance from the plant to the place ef deliv-

ery. The trial court's adoption of plaintiffs’ allowance

of 80 or 88 hours for each pay pr rod Was more than

fair to appellant, for we can re fadily see how by reason

of breakdown ‘of the equipment or other delays a

driver could, during a seven- -day week, only be en-

titled to straight time well below 40 hours and yet im

the following week be so continuously. occupied ‘that

iis compensable time would run many hours beyond

the straight time period of 40 hours, yet ander the

computation here used would sacrifice overtime hours

to make up the deficit below the 40 hours in the pre-

vious week before setting the number of his compen.

sable overtime hours. Such advantage enjoved by the

appellant furnishes no valid ground for complaint. If

appellant wished a more detailed method of computa-

“tion, it had its oy portunity to develop the same, for it

was from its records that the figures arrived | at by the

trial court were deduced.

Appellant next contends that the court erred in

awarding respondents penalties In an amount equal to.

in.

26

the wipaid overtime wages found to be*due them. Ap-

pellant asserts that the record contains uncontroverted —

évidengé that its failure to pav its employees time-and-

-achalf for overtime was due to its good faith belief

that it was not subject to the wage and maximum hour —

provisions of the Fair Labor Standards Act. Under

such cireumstances, appellant contends that the award

of penaltjes must be reversed.

Pursnant to section 207, subdivision (a)(1) of the

Fair Labor Staridards Act (29 U.S.C.A., 6 207(a)

(1)). tne employer shall employ any of his employees

... for a workweek Jonger than forty hours, unless

such employee receives compensation for his employ-

ment in excess of the hours above specified at a rate

not Jess than one and one-half. times the regular rate

at which he ts employed ary

Section 216, subdivision () (29 ULS.C.A,, § 216(b) )

provides that ‘\Any employer who violates the pro-

*

visions of 2... section 207... shall be liable to the

employee or employeés affected in the amount of .. .

their unpaid overtime compensation... and in an

additional equal amount as liqaidated damages.”

Section 260 of the, Portal-To-Portal. Act (29 U.S.

C.A., § 260), upon which appellant relies, provides

that ‘fn any: action commenced prior te or on or

after May 14, 1947 to recover... unpaid overtime |

compensation, or liquidated damages, under the Fair

Labor Standards Act of 1935, ax amended, if the

employer shows to cue satisfaction of the court that

the act or omission giving rise to such aetior was im

geod faith and that he had reasonable ¢rounds for

‘believing that his act or omission was not a violation

‘

ts hand

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

the court may, in its sound discretion, awdrd no

liquidated damages or award any amount thereof not

to exceed the amount specified in section 216(b) of

this title.”’ oa ; |

In order to escape payment of liquidated damages,

pursuant to the section above quoted, the employer

ust sustain the plain and substantial burden of per-

suading the court by proof that his failure to obey the

Fair Labor Standards Act was both in good faith and

* predicated upon such reasonable ground that it would

be unfair to inpose upon him more than a compersa-

tory judgment. (Wright v. Carrigg (C.A.S.C. 1960)

275 F. 2d 448.) ;

In the present case, appellant has failed to direct

this court’s attention to any testimony demonstrating

that appellant had reasonable grounds for believing

that it was not required to pay its employees the over-

time compensation required under the Fair Labor

Standards Act. Although appellant now asserts that

it was.under the belief that its interstate activities

rendered it subject to Part Li of the Interstate Corn-

merce Act and thereby exempted it from the wage and

maximum hour provisions of the Fair Labor Stand-

ards Act, this contention is not borne out by the ree-

ord. which reveals that appeiiant made no interstate

truck shipments during the years 1959 and 1960, and

that appellant never applied for or received an Inter-

state Com nerce Commission permit or plates. The

only testimony ‘bearing directly upon appellant's good

faith belief thet it was exempt from the wage and

maximum hour provisions of the Fair. Labor Stand-

28

ards Act consisted of Mr. Welch’s statement that he

Niad always considered lumber ‘tan interstate article”’

regardless of where it was shipped or what was done

with it. Under such cireumstances, it cannot be said

that the court abused its discretion in awarding: re-

spondents liquidated damages.

Appellant’s next contention is that there is.no sup-

port?in the evidence. for respondent Riddle’s award of

#511.92 as compensation for the hours spent with his

trick during breakdowns. We agree. An exarnination

of the findings fails to reveal thé precise basis for this

award, since the findings, as above noted, merely state

that respondent Riddle had worked a specified number

of hours and was entitled to recover wages therefor.

The trial court’s memorandum opinion, however, indi-

cates that this award was predicated upon an implied

contract theory whereby appellant employer imphedly

ugreed to pay bis employees for all time spent on its

behalf. Since the Fair Labor Standards Act contains

ho provisions specifically requiring the payment of

it would appear that this implied

contract theory constitutes the only basis, if any, upon

which the award could be’ upheld.

*9

‘breakdown time,

However. a thorough ‘review of the record fails to

disclose any evidence of sueh an implied contract.

Respondent Riddle testified that he had never dis-

cussed payment for breakdown time with appellant;

and that he had always: been par! only for actual

driving time, for fuel time, and for loading and un-

loading. He also stated that the trucks were equipped

with clocks which recorded the hours during which the

truck was in motion and which stopped when the truck -

29

was at rest. He stated that he.was always paid for the

time recorded. on-the dise and for ‘any additional time

‘spent in fueling, loading and unloading; that he never

asked appellant to pay him for his breakdown, time ;

_and that he continued to work for appellant knowing

-that he would receive no compensation for this time.

In view of this evidence, there is no justification for

the award of breakdown time to respondent Riddle.

Civil Code, section 1620, states that **An express con-

tract is one, the terms of which are stated in words.”

Civil Code, section 1621, provides that ‘‘An implied

contract is one, the existence and terms of which are

manifested by conduct.”’ It is settled that hoth types

of contract are identical in that they require a meeting

of the minds or an agreement. (Desny v. Wilder

(1956) 46 Cal. 2d 715, 735.) The true implied contract

consists of obligations arising from a mutual agree-

ment and intent. to promise where the agreement and

promise have not been expressed in words. (Silva v.

- Providence Hospital of Oakland (1939) 14 Cal. 2d

762, 773.)

In the instant case, there is a complete absence. of.

any evidence indicating that appellant aud respondent

Riddle ever arrived at an agreen: nt that appellant

~~ would pay respondent Riddle for his breakdown time.

To the contrary, the evidence is strongly indicative of

an implied agreement that ne such compensation

would be paid: Under such circumstances, the award

- of $511.92 to réspondent Riddle may not be upheld.

Appellant next contends that the trial eourt’ failed

to make findings of fact on ajl material issues raised.

—

30

by the pleadings and evidence. Appellant asserts, more

specifically, that the triai court failed to ‘make any

finding that appellant was not exempt from the over-

-time provisions.of the Fair Labor Standards Act; that

the court failed to find the number of hours worked

by each respondent in excess of 40 hours per week;

and that the court failed to find whether appellant

acted in good faith in failing to pay respondents time-

and-a-half for the ‘overtime hours worked.

The findings that appellant was subject to the Fair

Labor Standards Act during.the years 1959 and 1960

and that respondents were entitled to recover time-

and-a-half pay and liquidated damages for the over-

time hours worked negate by necessary inference ap-

pellant’s claim that it was exempt from.the wage and

hour provisions of the Fair Labor Standards Act.

(Kux v. Cal-West Lumber Corp. (1958) 162 Cal. App.

2d 500, 50%; Petersen v. Murphy (1943) 59 Cal. App.

2d 528, 534.) Since the court found the total amount

of overtime pay due each respondent and since such

findings are statements of ultimate fact (Nisbet v.

Rhinehart (1935) 2 Cal. 2d 477, 482), the court was

not required to make additional findings relative to

evidentiary matters such as the number of overtime

hours worked by. each respondent. (People v. Hecker

(1960) 179 Cal. App. 2d 823, 832; Gross v. Needham

(1960) 184 Cal. App., 2d 446, 463.) A finding that ap- .

pellant did not act in-geod faith when it failed to pay

respondents the required overtime compensation would

appear: unnecessary in view of the finding that re-

sponderts were entitled to liquidated damages. (Kux

vy. Cal-West Lutiber Corp., supra; Petersen v..

>

« ' .

31

Murphy, supra. In any event, appellant did not plead

the defense of good faith and offered no evidence

pertaining thereto,

Appellant’s final contention is that the findings of

fact, conclusions of law and judgment are unsupported

by the evidence in two respects: (b) that respondents

failed to prove the amount of overtime pay to which

. they were entitled, and (2) that the judgment Was

made tu run against E. C. Welch and J. D: Welch,

Jr..as wéll as against appellant. The first of these

arguments is Without merit, since. as above noted, |

respondents supported their wage claims by time cards

covering their total periods of employment during

1959 and 1960 and by itemized camputations based

upon those time cards. ;

Appellant ’s second contention raises a more SeTIOUS |

problems An examination of the pleadings and pretrial

conference orée > fails to disclose that the action was .

brought against any other defendant than appellant:

Merido Wood Products, Inc. At the commencement of

the trial, however, respondents’ attorney suggested a

> stipulation to the effect that appellant Mendo Wood

Products, Ine. was in the process of dissolution and

that. Jeff Welch and Elwood Welch had agreed that

any judgment which might be entered in. the action —

would be binding on them.: Counsel for appellant

stated that he had given counsel for respondents a

written guarantee but that he had no authority to file

it in the action, At a subsequent stage in the proceed-

ings. the subject was again broached, and appellant's .

counsel réiterated that there was a euarantee, that

32

respondents’ counsel had a copy, that it covered aiiy

judgment that might be rendered in the within action,

but went no further.

On December 21, 1962, jud&ment in favor of re-

spondents was entered. against appellant Mendo W ood

Products, Iné. Notice of appeal from this judgment

was filed on behalf.of Mendo Wood Products, Ine.,

BE. C. Welch and J. D. Weich, Jv. The latter two in-

dividuals, as above: neted, took no further steps to

perfect their appeal. On March 15, 1963, the court

entered a new judgment in order to eliminate: an

award of interest which had inadvertently been in-

‘din the original judgment. The amended judg-

-moent ran against defendants **Mendo Wood Products,

Inc., E. C. Welch, and J. D. Welch, Jr.” Although

this judgment is Hot a part of the record in the in-

stant appeal, it is this Juagment which appellant.

Mendo Wood Products, Ine. now attacks on the

ground that it was errorieously made to run against

the Welches. It is settled that an appellant may not

on his appeal urge errors which affect only his co-

se

parties who do not appeal, and that such errors can

be reviewed only at the instance of the parties affected

thereby. (Estate of Nepogodin (1955) 134 Cal. App.

24 161, 173; Broadway Fed. ete. Loan Assoc, v. How-

“ard (1955) 133 Cal. App. 2d 382, 400.) Since the

Welches ‘chose to abandon their appeal, ‘their rights

cammot be asserted by appellant Mendo Wood Prod-

ucts, Ine. as a ground for reversal.

e

Responde nts’ motion to dismiss this appeal, on the

evound that it was taken from a judgment which is

‘

; 33 :

nonappealable by virtue of having been superseded

by a new and different judgment, is denied.

In the present case, it is clear t@ us that the trial

judge: never intended the judgment to inelude an

award of interest. It was by inadvertence that the

judge signed this judgment, prepared by respond-

ents’ counsel, which awarded interést. Upon being

brought to-the court’s attention, respondénts immedi-

ately conceded the error and the matter was correctéd.

It is settled that where the amendment merely cor.’

rects a clerical error and does not involve the exercise

of judicial discretion, the original judgment remains

effective and unimpaired and the amendment does not

operate as a new judgment from which a new appeal

may be taken. (O’Connor v. Skelton (1961) 195 Cal.

App: 24 612, 614-615; MeConville v. Superior Court

(1926) 78 Cal. App. 203,°207; George v. Bekins Van

& Storage Co. (1948) 83 Cal. App. 2d 478, 480-481.)

For the reasons above stated, the Judgment is miodt-

fied by reducing the amount of damages awarded re-

spondent Riddle from $4,783.46 to. $4,271.54. and as

so modified, the judgement is affirmed.

Shoemaker, P. J.

We coneur:

Agee, J. i &)

Taylor, J. |

Filed March 17, 1964.

Lawrence R. Elkington. Clerk-

.

-

o

In the District Court of Appeal

State of California |

First Appellate District

Drvision Two

1 Civil No@21,307

- Albert Mulder, Robert B. Riddle, and |

Arthur O. Woodall,

Plaintiffs and Respondents,

|

Mendo Wood Products, | ‘tac. E. C. |

Welch and J. D. Welch, Jr., |

Defendants and Appellants. j

By THE Cotnt

The Petition for a Rehearing filed in the above en-

titled cause is hereby denied.

Dated, April 16, 1964

Shoemaker, P. J.

Filed April 16, 1964. -

Lawrence R. Elkington, Clerk.:

35

Order due’

May 15, 1964

In the Supreme Court of the State-of California

In Bank

“Albert Mulder, Robert B. Riddle. and |

Arthur 0. “Woodall, ,

Plaintiffs and Respondents, | |

, VS.

. Mende Wood Products, Inc., E. C. |

Welch and J. D. Welch; Jr., |

Defendants and Appe llants. +

ORDER DENYING: HEARING

AFTER JUDGMENT

BY DISTRICT COURT OF APPEAL

1st District, Division 2, Civil No. 21, 307,

Appellant’s petition for hearing DENIED. |

Schauer, J., is of the opinion that . the petition

should be granted. a

Gibson, Chief Justice

File d May 13, 1964.

Lawrence R.E Ikington, Clerk.

I. WILLIAM I. SULLIVAN, Clerk of thie Su-

preme Court of the State of California, do hereby cer-

36.

~ tify that the preceding is a true copy of an order of

this Court, as shown by the records of my office.

Witness my hand and the seal of the Court this

13 day of May, A.D. 1964. i

~ Wilham I. Sullivan, Clerk,

; By G. E. Bishel,

‘aes . ~ Deputy Clerk.

Filed May 13, 1964,

Wiiliam I. Sullivan, Clerk.

(

ws.

a. a

Appendix B

EacW of the following federal statutes have been re-

ferred to.in the foregoing petition, Each is extensive,

but only small portions are relevant th the matters

presented m the petition. This: Appendix Bo eoutame

such relevant provisions in exact quotation form. .

no

CONSTITUTION OF ‘THE UNITED STATES

_ (As printed in United States Code, Annotated)

Section 8 Clause 3, Regulation of Commerce

‘The Congress shall have Power * * * Toe regniate.

Commerce * * * mene, the several] states, * * *

.

Amendment XIV, Citizenship: Privileges and bm-

‘munities; Due Process; Equal 1 Protection; 2 ne

forcement. (As printed in United States: Code, anne-

tated.)

Section 1: * * * No State shall make or enforce

anv law which shall abridge ‘the pri. jHleges or im-

mnnities of citizens of ie “nited: States; ner

shall any State de “prive any person of dite, Hherty.:

or property, without due process of Taw: ner deny

to any person within -?ts jurisdietion the equal,

protection of the laws.

UNITED STATES ‘CODE

yi ithe 28 U BAN Judiciary and Jadiciat Proc dure,

Seetion 1257, in pertinent part: .

Final juden rents or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by ‘the Supreme, Court

as follows: \

hn.

‘ 42

permit -averaging of hours over two or more

weeks. Thus, 1f an. employee works 30 hours one

week and 50 hours the next, he must receive

overtime compensation for the ten (10) overtime

hours, worked in the second week, even though

the average number of hours worked in the two

weeks is 40.!

See. 785.0(a) The Fair Laber Standards Act

* * * also provides that no such employee may be

employed for more than 40 hours a week with--

out receiving at least time and one-half of his

recular rate of pay for the overtime hours. The

amount of money an employee should receive can-

hot be determined without knowing the number.

-of hours he has worked.” . yee,

.

a

‘Also contained im Tithe 29, Labor; Code of Federal Regula-

tions. Seetion 778.2 (e) and (d>.,

“Also contained in Title 29 Code of Federal Resulations, See-.

thon 7800) until that seetion was renumbered as 785.1 by 26

‘Vederal Regulations 7752, August 18, 1961, and the language

Slightly ehanged, but not in such manner as to affect this

litigation.