Petition for Writ of Certiorari — Bicanic v. J. C. Campbell Co.

" ! aa FILAD

4 JAN 24 1946

CHARLES ELwone OROPLEY

ME Rea

/

Supreme/Court of the Anited States

OCTOBER TERM, 1945

Noelle" #73

; 4 WILLIAM V. BICANIC, FRANK AKAR, GEORGE ELICH, CARL

MOE, MARTIN WONSKI, MARTIN DYBEVICK AND NIKOLA

GROSDANICH, IN BEHALF OF THEMSELVES AND ALL

t OTHERS SIMILARLY SITUATED,

Petitioners,

. aa

d J. C. CAMPBELL COMPANY, A CORPORATION,

it > Respondent.

y.

8

HARRY OZUPIY, STEVE GESWINE, WALTER L. CARLSON,

nt JOSEPH SKALA, JR., JOHN STIMAO, JACOB MACIAG, AILI

of WAPOLA, ERICK HELLMAN, MAYNARD lL. SCHNEIDER,

is ANDREW ALSZEWSKi, ALEX KANGAS, JOHN NESLAND,

NIKOLA GROSDANICH, ELMER OSOFF, CHARLES A.

MUELLER, JOSEPH SCHONE, VICTOR CARLSON, EDWARD

ty ANDRESEN, CHARLES WAPOLA, CARL E. MANYBERG,

ed DAVID McMILLEN, IN BEHALF OF THEMSELYES AND ALL

OTHERS SIMILARLY SITUATED,

Petitioners,

rd e

r’s | NORTH STAR TIMBER COMPANY,

“a PETITION FOR WRITS OF CERTIORARI AND BRIEF

be -

is LEE PRESSMAN

Petition for Writs of Certiorari 1

Summary Statement of the Matter Involved 2

Questions Presented 4

Reasons Relied Upon for the Allowance of the Writs................ 4

Brief in Support of Pet*tion for Writs of Certiorari................ 9

I. Opinions of the Court Below 9

Il. Jurisdiction 9

Ill. Specification of Errors Intended to Be Urged....................... 9

IV. Argument

oT.

- INDEX TO CITATIONS

Page

Armour & Company v. Wantock et al. (1944), 323 U.S.

126 5, 6, 7, 9, 12, 15

Butler v. Carter, 8 WHR 92, decided January 6, 1945 (Ga. Sup.

Ct.) 5,

Chicago, R. I. & P. Co. v. U. S. (C.C.A, 8th), 3 Fed, CB. 28

Fleming v. North Georgia Mfg. Co., 33 F. Supp. 1005, 1006-7 (N. D.

Ga.) 14

Fleming v. Warshawsky & Co. (C.C.A. 7th) 123 F. (2d) 622, 626... 10

Griffiths v. Commissioner, 308 U. S. 355, 357, 358 11

Hanson v. Lagerstrom, 133 F. (2d) 120 4,5

Larsen v. Rice (1918), 100 Wash, 642 10

Maryland Casualty Co. v. U. S., 305 U. S. 651 10 |

Minneapolis & St. L. R. Co. v. U. S. (C.C.A. 8th), 245 Fed. 60, 64;

cert. den, 245 U. S. 666 14

Missouri, K. & T. Ry. v. U. S., 231 U. S, 112, 119 14

Overnight Transportation Co. v. Missel, 316 U. S. 572, 582, 583... 5, 12

Pinkley v. Allied Oil Corporation, 8 WHR 434, decided March 5, 1945

(Ill. App. Ct.) §, 11

San Pedro L. & S. R. Co. v. U. S. (C.C.A. 8th), 213 Se 14

Skidmore v. Swift & Co. (1944), 323 U. et | Se .. 6, 7, 9, 12, 13, 15

Tennessee Coal, Iron & Railroad Company v. Muscoda Local No. 123,

ete., et al., 321 U. S. 590 10

U. S. v. Chicago, M. & P. S. Ry. Co., 195 Fed. 783 (W. D. Wash. ).......-- 13

U. S. v. Morley Construction Co. (C.C.A. 2d), 98 F. (2d) 781, 789,

cert. denied sub. nom, 10

U. S. v. Pitcairn, 23 F. Supp. 242 (E. D. Mo.) 14

U. S. v. St. Louis Southwestern Ry. Co. of Texas (W. D. Tex), 189 |

Fed. 954, aff'd (C.C.A. 5th), 199 Fed. 990. 14

Walling v. Harnishfeger Corp., 325 U. S. 427 §, il

Walling v. Helmerich & Payne, 323 U. S. 37 5, 11

Walling v. Youngerman-Reynolds Hardwood Co., 325 U. S. 419... 5, 11

~—

Supreme Court of the Anited States

OCTOBER TERM, 1945

Nos.——

WILLIAM V. BICANIC, FRANK AKAR, GEORGE ELICH, CARL

MOE, MARTIN WONSKI, MARTIN DYBEVICK AND NIKOLA

GROSDANICH, IN BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED,

Petitioners,

vo

J. C. CAMPBELL COMPANY, A CORPORATION,

Respondent.

HARRY CZUPIY, STEVE GESWINE, WALTER L. CARLSON,

JOSEPH SKALA, JR., JOHN STIMAC, JACOB MACIAG, AILI

WAPOLA, ERICK HELLMAN, MAYNARD L. SCHNEIDER,

ANDREW ALSZEWSKI, ALEX KANGAS, JOHN NESLAND,

NIKOLA GROSDANICH, ELMER OSOFF, CHARLES A.

MUELLER, JOSEPH SCHONE, VICTOR CARLSON, EDWARD.

ANDRESEN, CHARLES WAPOLA, CARL E. MANYBERG,

DAVID McMILLEN, IN BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED,

Petitioners,

Ly

NORTH STAR TIMBER COMPANY,

Respondent.

PETITION FOR WRITS OF CERTIORARI AND BRIEF

| TO THE HONORABLE THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Petitioners respectfully show that they seek herein a re-

view by this Court of the final judgments of the Supreme

Court of Minnesota, Court of last resort of that State, affirm-

ing judgments of the District Court of the Eleventh Judicial

District, St. Louis County, Minnesota, docketed June 6, 1945,

2

for respondents each for fifty & 40/100 ($50.40) Dollars, in

petitioners’ actions under the Fair Labor Standards Act of

June 25, 1938, Chapter 676, 52 Stat. 1060, 29 U.S.C. Section

201, to recover unpaid overtime compensation while employed

as cooks, cookees, and bullcooks in a lumber camp in inter-

state commerce by respondents.

SUMMARY STATEMENT OF THE MATTER INVOLVED

| The undisputed facts most favorable to respondents * are

‘ as follows:

/ During the period from on or about December 3, 1940, to

on or about April 7, 1943, each respondent was a corporation

| licensed and doing business in the State of Minnesota and was

engaged in the business of cutting, hauling, sap-peeling and

skidding pulpwood and timber in northern Minnesota, and

especially in Lake County, Minnesota (1 R. 312; 2 R. 365).

All of the pulpwood was sold and delivered within and outside

of the State of Minnesota, the vast majority of such shipments

being sold and delivered outside of the State of Minnesota.

(1 R. 312; 2 R. 365).

| Each respondent operated lumber camps where it was en-

gaged in getting out pulpwood (1 R. 313; 2 R. 365). To facili-

tate and as a necessary part of this business of cutting, skid-

ding, sap-peeling, loading and hauling pulpwood and logs each

respondent maintained and operated camps in Lake County,

Minnesota, which camps included bunk houses and cook houses.

' Such maintenance and operation of said bunk houses and cook

/ houses were necessary to the proper and efficient operation

of the work of each respondent in producing pulpwood and

logs (1 R. 313; 2 R. 367).

Petitioners and others were employed by the respective re-

spondents in the capacity of either cook, cookee or bullcook.

All of the petitioners customarily started work at 4:00 A. M.

and stopped work at 7:00 P. M. and for two hours of this

period received no overtime compensation. (1 R. 51-58; 2 R.

1 Both cases rest upon the same facts. Both were tried subject to a

stipulation “that the testimony introduced in either case should be con-

sidered as the testimony in both cases” (1 R. 311; 2 R. 364). In this

petition the records in the North Star and Campbell cases will be re-

ferred to as “1 R. —” and “2 R. —”, respectively.

1'at ®

3

58-64.) The duties of the cook in said camps usually consisted

of starting the fires in the cook house in the morning, pre-

paring food for 6 o’clock breakfast, preparing food for the

men to take with them for their lunch at noon, doing what-

ever baking was necessary or advisable, preparing 11 o’clock

lunch for those employees who were not in the woods, pre-

paring the evening meal, generally having charge of the

kitchen, cutting the meat when necessary, and putting away

the food and keeping the kitchen and the food clean and

sanitary (1 R. 313; 2 R. 367).

The cookees were generally required to assist the cook when

necessary, put food on the table, clear the table and wash

the dishes and cooking utensils, and put them away (1 R. 313;

2 R. 367-8).

The bullcooks were generally required to have plenty of

wood on hand for the stoves, build fires in the bunk houses,

and when needed, keep the lamps in condition for use and

light them when needed, get necessary water to the different

buildings, sweep the buildings and scrub the floors when neces-

sary, and in general to do the janitor work around the bunk

houses (1 R. 313-4; 2 R. 368).

The bunk houses and cook houses were for the use of the

employees of each company (1 R. 314; 2 R. 368).

During all of the time these various petitioners worked for

the respective respondents they were working under a con-

tract between the employer and the union to which they be-

longed, which provided the rate of pay that they should receive

per hour and the number of hours available to them to work

(2 R. 225-6, 230). They were paid on the basis of the hours

to be made available, both straight time and overtime, and

the rate of wages fixed in the contract was not in any case

below the minimum to be paid according to the provisions of

the Fair Labor Standards Act.

Liability of each respondent is predicated upon the failure

of each respondent to pay the petitioners for all of the hours

worked under the Fair Labor Standards Act, since apart

from the lunch hour for which no claim for compensation is

made, the employees were employed within the meaning of the

: ar

Fair Labor Standards Act 14 hours and were paid for 12

| hours.

_Byier the issuance of a bulletin by the Fair Labor Standards

Administrator holding that the employees involved herein were

subject to the overtime provision of the Fair Labor Standards

Act contracts were entered into between the Union represent-

ing petitioners and the respective respondents translating their

monthly wage rate into an hourly basis but so as to yield the

same amount as petitioners had been theretofore paid (2 R.

225-6, 230, 255, 257). These contracts specified the hours

available for overtime purposes as 12 hours.

In 1943, the Circuit Court of Appeals for the Eighth Circuit

handed down a decision in: Hanson v. Lagerstrom, 133 F. (2d)

120, upholding the applicability of the Fair Labor Standards

Act to petitioners. Prior to that time petitioners had failed

to claim payment of the disputed hours. Claims were made,

however, subsequent to that time.

ae ene la

2 ee

Questions Presented:

1. Whether a court is justified in denying a claim for over-

time compensation because the contract of their labor

{ organization described above limited the hours avail-

f able to 12 although petitioners in fact worked 14 hours.

i 2. Whether a court is justified in denying a claim for over-

time to petitioners who in fact were suffered and per-

mitted to work overtime hours either because peti-

tioners failed to claim payment for such hours or be-

cause they were not required to work such hours.

3. Whether petitioners should be paid for time “on the

job” whether or not it was necessary for them to do

any work.

Reasons Relied Upon for the Allowance of the Writs

The Supreme Court of Minnesota has decided a Federal

question of substance in a way not in accordance with the

applicable decisions of this Court, and in that connection error

is assigned and reasons presented for the allowance of the writ,

as follows:

1. The trial court found that the petitioners had a period of

two or more hours a day “available” as free time (1 R. 315,

ea

2 R. 369) and that they were “able” to perform their work in

the “hours available under the contract”. The Minnesota

Supreme Court held there was evidence to support this finding

and that it would not substitute its judgment for that of the

trial court (19 N. W. (2d) 7, 11). But the measure of hours

worked under the Fair Labor Standards Act is not the hours

within which employees are able to work but the hours within

which they are in fact suffered or permitted to work. Butler

v. Carter, 8 WHR 92, decided January 6, 1945 (Ga. Sup. Ct.);

Pinkley v. Allied Oil Corporation, 8 WHR 434, decided March

5, 1945 (Ill. App. Ct.).

2. The trial court relied on the union contract to show that

the petitioners were not required to work the full elapsed time

and did not pass on the question whether in fact they were

suffered or permitted to work and did work during the entire

elapsed time.

More importantly, the trial court ignored the fact that the

purpose of the contract was to translate previous monthly earn-

ings into an hourly basis and was not intended to define hours

worked for purposes of the Fair Labor Standards Act. The

term “hours available” used in the contract to define the over-

time period to be worked did not contemplate a scheduled

period of free time and was wholly arbitrary in character.

Walling v. Helmerich & Payne, 323 U. S. 37; Walling v.

Youngerman-Reynolds Hardwood Co., 325 U. S. 419; Walling

v. Harnishfeger Corp., 325 U.S. 427.

3. Petitioners failed to present claims for overtime compen-

sation for the hours in dispute because of doubt as to the ap-

plicability of the Fair Labor Standards Act. After the deci-

sion in the case of Hanson v. Lagerstrom, supra, these claims

were presented. The trial court justified its failure to find

respondents liable for the hours in dispute which were worked

because no claim had been presented during the period in dis-

pute. This is an erroneous view of the law. See Overnight

Transportation Co. v. Missel, 316 U. S. 572, 582, 583.

4. With respect to those petitioners who did not in fact per-

form physical work during the hours in dispute, the Supreme

Court of Minnesota has overlooked or ignored the controlling

. —— PrTRLGE LOPES YSIS PIPE ETERS TET

a

decisions of this Court which have not been distinguished,

modified, or overruled, to wit: Armour & Company v. Wantock

et al (1944) 323 U. S. 126 and Skidmore v. Swift & Company

(1944) 323 U. S. 134.

The Supreme Court of Minnesota has apparently overlooked

the statement made by the trial court in its memorandum as

follows (2 R. 374):

“It seems to me the question resolves itself largely into

whether or not men should be paid for time on the job

during which it was not necessary for them to do any

work, ...”

The trial court itself used the expression “on the job”. In

the Armour case, Mr. Justice Jackson said in part:

“We think the Labor Standards Act does not exclude as

working time periods contracted for and spent on duty in

the circumstances disclosed here, merely because the

nature of the duty left time hanging heavy on the em-

ployees’ hands and because the employer and employee

cooperated in trying to make the confinement and idle-

ness incident to it more tolerable. Certainly they were

competent to agree, expressly or by implication, that an

employee could resort to amusements proviced by the

employer without a violation of his agreement or a de-

from his duty. Both courts below having con-

curred in finding that under the circumstances and the

arrangements between the parties the time so spent was

working time; we therefore affirm.”

The Supreme Court of Minnesota has overlooked or ignored

the proper test in making its decision in determining whether

the petitioners were entitled to pay for all of the hours claimed.

The trial court in its memorandum stated that the question

resolved itself largely into whether or not men should be paid

for time on the job during which it was not necessary for

them to do any work. The court stated that the men were

on the job; and, even though they did not work, it is now estab-

lished by the decisions cited above that that time is hours

worked under the Fair Labor S tandards Act.

Petitioners do not believe that the mere fact that they were

not subject to call and would be unrebuked if they were un-

available justifies a denial of liability. ‘Those periods of rest

apeoere

snatched by petitioners were not fixed or scheduled exclusions

from working hours, but had to be snatched from between

tasks which governed the amount of rest which could be .

claimed. The fact that during the day there was a temporary

lull in the work of some of the petitioners does not remove

their service during this time from the scope of the Wantock

and Skidmore cases. This is so because the rest periods inso-

far as they existed were inextricably part of and shaped by

the work pattern.

5. The Supreme Court of Minnesota has failed to take into

consideration the fact that the trial court did not have the

opportunity of seeing the witnesses or hearing their testimony

and in fact was itself a court of review. The trial court

stated in its findings (2 R. 376):

“This Court did not have the opportunity of seeing the

witnesses or hearing their testimony, so this decision is

made upon the bare record.”

6. The Supreme Court of Minnesota failed to reconcile the

present case with the decisions of the United States Supreme

Court cited above when it stated in its opinion:

“Although the record would support findings to the

contrary, there is ample evidence to support the findings

made, and they must be sustained even though this court

might be inclined to draw contrary inferences from the

evidence and come to 1 different conclusion. Sommers

v. City of St. Paul, 183 Minn. 545, 237 N. W. 427. Even

if it were both proper and possible to determine and

consider the attitude of Judge Fesler and to determine

that he would have made a contrary decision, it would

serve no purpose other than to illustrate that, upon the

evidence, reasonable minds might justifiably come to dif-

ferent conclusions.”

WHEREFORE, petitioners, referring to the attached brief

| in support of their reasons for review, respectfully pray that

! this Court issue writs of certiorari directed to the Supreme

Court of Minnesota to certify and send to this Court full and

complete transcripts of the records herein, to the end that

, the cases may be reviewed and determined by this Court as

} provided by law, and that the decisions of the Supreme Court

of Minnesota may be reversed; and that the petitioners may

have such other and further relief in the premises as to this

Honorable Court may seem just and equitable.

And your petitioners will ever pray.

William V. Bicanic, Frank Akar, George Elich, Carl Moe, Martin

Wonski, Martin Dybevick and Nikola Grosdanich, in Behalf of

Harry Czupiy, Steve Geswine, Walter L. Carlson, Joseph Skala, Jr.,

John Stimac, Jacob Maciag, Aili Wapola, Erick Hellman,

Alszewski, Alex

By:

M. H. GREENBERG,

Counsel for Petitioners.

RPE IRL IE LNAI ERNE LEE ERI OI PSI EM LTP TEE TP RH PPR RETIN SNP