Petition for A Writ of Certiorari — VanDyke v. Bluefield Gas Co.

PO RTO SEER ae OME ey ee fs

el ibn

a ba a

OPINION ..

JURISDICTION _......... oe Ak Tame tee

STATUTES INVOLVED... he A 2

QUESTIONS PRESENTED ................... 2

STATEMENT.) re Nee 3

SPECIFICATIONS OF ERRORS

TO BE URORD 7.5203.

REASONS FOR GRANTING THE WRIT ...... 8

CONCLUBION (0. os ot ae 16

APPENDIS: ko i a 17

CITATIONS

P $

CASES: Eited

Addison vs Huron Stevedoring Co.,

(CA 2) 204 F. (2d) 88 15

Armour and Co. vs Wantock, 323 U. S.

126, 65 S. Ct. 165 8, 9, 11

Bell vs Porter, (CA 7) 159 F. (2d) 117.

Cert. Granted 330 U. S. 817, Vacated 330 U.

S. 813, Rehearing Denied 331 U, S. 864 9. 11

Bowers vs Remington Rand Co.,

aged gail (2d) 114 9

rooklyn Savings Bank vs O'Neil, 324

U. S. 697, 65 S. Ct. 895 12

Brown vs. Dunbar etc., (CA 2), 189 F.

(2d) 871 15

Central Missouri Tel. Co. vs Conwell,

CA 8), 170 F. (2d) 641 8,9, 15

mas vs King, (CA 8), 157 F. (24) 463 10

Handler vs Thrasher, (CA 10), 191 F.

(2d) 120 13

. Howard vs Southern Bell Tel. Co., 72 F.

Supp. 276 10

Kirschbaum vs Walling, 316 U. 8. 517,

62 S. Ct. 1116 6, 14

Landaas vs Canister Co., (CA 3) 188 F.

2d) 768 ; 16

sister vs Guy F. Atkinson Co.,

be 9) 176 F. (2d) 984 16

issouri, K and T. Ry. Co. vs United States,

231 U. S. 112, 119, 34S. Ct. 26, 27 8

Rokey and Day vs Zimmerman, (CA 8)

157 F. (2d) 744 9

Rothman vs Publicker Ind., (CA 3) 201

F. (2d) 618 15

Skidmore vs Swift and Co., 323 U.S.

134, 65 S. Ct. 161 8, 9, 11

Super-Cold Southwest Co. vs McBride,

CA 5) 124 F. (2d) 90 10

ennessee Coal and Iron Co., os Muscoda :

Local, 321 U. S. 590, 602, 64 8. Ct. 698, 705 Sid 12

ii

_ Tripp vs May, yes 189 2g nl 198 15

Walton vs Southern Package Co.,

229 U. S. 540, 64S. Ct. 320 6, 14

STATUTES:

Fair Labor Standards Act of 1938

(29 U. S. C. A. 201 et seq)

Section 6; (206 2, f¢ Oy % 10, 12, 13,16

Section 7; (207 2, 7, 8, 9, 10, 12, 13, 16

Section 11 te ; (211 {<)) 15

Section 15 (a We; (215 (a) (5)) 15

Section 16 (b); (2]6 (b)) 2, 6, 8, 12, 13, 14, 16, 17

Portal-to-Portal Act,

(29 U.S. C. A. 251, et seq)

Section 3 (253 13, 17

Section 11 (260) 6, 8, 13, 14, 15, 16, 18 -

In The

SUPREME COURT OF THE UNITED STATES

October Term, 195+

No.

THOMAS J. VANDYKE, Petitioner

vs:

BLUEFIELD GAS COMPANY, Respondent

a corporation,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Your petitioner, Thomas J. VanDyke, prays that a writ

of certiorari issue to review the judgment entered in this

case on February 16th, 1954, by the United States Court

of Appeals for the Fourth Circuit.

OPINION BELOW

The po gg Ppa ae not are i Run The

opinion of the Court of Appeals - ~“ported

at 210 F. (2d) 620.

JURISDICTION

The judgment of the Court of A was entered

February [oth, 1954 (R. 99-100). urisdiction of

this Court is pp Sate under Section 1254 (1) of the

udicial g-4; (Act June 25th, 1948, c. 646, Sec. 1; 62

tat. 928; 28 U S C. A. 1254 (1)). /

1

STATUTES INVOLVED

The pertinent provisions of the Fair Labor Standards

Act of 1938, as amended, (29 U. 8, C. A. 201, et seq; Act

June 25th, 1938, c. 676, 52 Stat. 1060, amended, Act

October 26th, 1949, c. 736, 63 Stat. 910) and of the

Portal-to-Portal Act (29 U. 8. C. A. 251, et seq; Act May

14, 1947, c. 52; 61 Stat. 84) are set forth in the Appendix,

infra, pp. 17-18.

QUESTIONS PRESENTED

1, Whether an sg te of a gas eng so in sole

charge of the company’s business during a fourteen hour

period each night, but who is, in a portion of the period,

permitted to sleep when convenient and when not actually

engaged iin the duty of watching for prowlers, and

receiving and acting on telephone trouble

and service requests, is entitled under provisions of the

Fair Labor Standards Act, to compensation for all hours

required to be spent on the premises.

2. Whether, in the event part of the hours in such em-

ployment required to be spent on the premises each night

may be considered excluded noncompensable time, the

employer’s right to claim such exclusion is conditioned

upon furnishing such employee safe, clean, comfortable

and otherwise adequate sleeping facilities.

3. Whether, if such time is compensable as a matter of

law because of employer’s failure to furnish safe and

adequate sleeping facilities, the failure of an employee to

complain of, or protest, the lack of safe, clean, comfor-

table and otherwise adequate sleeping facilities may be

taken as a waiver or release of his right to compensativn

for such hours.

the award of liquidated damages provided in.

(b) of the Act (29 U. 8, C. A-216(b)).

2

STATEMENT

_ This action was instituted by petitioner in the District

Court for Southern West Virginia, to recover wages

claimed to be due from respondent under provisions of

the Fair Labor Standards Act of 1938, as amended (29

U.S.C.A. 201, et seq). Petitioner was employed by re-

spondent ei | the period from August 11th, 1951 to

pril 15th, 1953.

Respondent is one of a group of commonly owned and

controlled cor»xorations which sell and distribute natural

gas in the cix:es of Bluefield, West Virginia and Blue-

field, Virginia, sell and deliver bottled gas in a larger

territory of the two states, and sells, installs and services

gas appliances in the same areas. Its natural gas is pur-

chased, under authority of the Federal Power Commis-

sion from Amere Gas Utilities Company, which supplies

respondent from wells located neither in West Virginia

nor Virginia, (See Petitioner’s Original and Supple-

mental Interrogatories and Answers thereto, made a part

of the record below).

Petitioner was employed during the hours of 5:00 P.

M. and 7:00 A. M. each night, seven days a week, or 98

hours per week, at a salary of $150.00 per month (or

$34.61 per week). He was required to remain, during

those hours, on the premises of respondent’s service plant

in Bluefield, West Virginia, to watch for and report dis-

turbances and to wait for, receive, act on and relay tele-

phoned reports of trouble or service requests relating to

the business of respondent and all of its affiliated com-

panies (R. 44-45), the service plant being the only place

at which telephone communications at night, concerning

all of the companies, were received (R. 44-45). Peti-

tioner was alone and in sole charge during those hours.

Respondent’s report forms, and the evidence, indicate

titioner’s duties to be that of night-watchman (R. 13;

8-29; 49-50; 15) but his brings duty was that of night

telephone clerk. or operator. ‘ile respondent admitted

that petitioner’s duties were the same, except for the

volume of calls received after 10:00 P. M., during the

entire night (R. 48-49), that petitioner was reg: ed to

3

stay, during the 14 hours each night, in the service plant

(R. 44; 16; 20-21), and that petitioner’s presence at the

plant between the hours from 10:00 P. M. to 7:00 A. M.

were essential and of benefit to the res ent’s busin

and of its affiliated enterprises, (R. 52-53), it intend

to pay petitioner only for his hours on duty from 5:00 P.

M. to 10:00 P. M. each night, or for 35 hours per week,

for the weekly compensation of $34.61 (R. 48-49 :

50-52). Petitioner, a man 58 years of age, did aot know

what his pay was to be until he received his first pay

check (R. eae) and thereafter asked for, but did not get,

a raise in pay (R. 24; 44; 68). Petitioner testified, with-

out dispute, that respondent once tried to increase his

daily duty hours from fourteen to fifteen and one-half

hours, without a change in pay, but on petitioner’s objec-

tions, abandoned that plan i R. 23).

The Court found that petitioner was authorized to

sleep when he desired after 10:00 P. M. each night (R.

- 93; 3) on an iron bed located near a wall telephone in a

yep and supply storage room in respondent’s service

plant.

Petitioner was able to get naps amounting, on average,

in the five warm months, to not more than four hours

per night (R. 21-22) and in the seven colder months,

when room heat was necessary, to not more than three

hours per night (R. 22), but seldom had any long periods

R212 ay . M. of uninterrupted or untroubled sleep

Respondent assigned petitioner duty quarters, consist-

ing of a 12x14 ck dirty storage off the main

offices and shop rooms, filled full and high with old re-

cords and company equipment, in a small space of which

was located an iron, flat-springed bed, on which was ar

uncovered dirty mattress, and an old-type manually

operated, open flame, unvented gas burner, without pilot

light and automatic safety controls, which, because of

lack of space, was located not more than three feet from

the bed (R. 16-20; 26; 29-40; 43; 54-55). A telephone

was located on the wall near the bed. Old records, in

4

19; 33-34; 43). A room nearby had a wash bowl and

commode, but the bath tub was disconnected (R. 17-18;

38-39). One witness, who had oe He years experience re-

pairing and installing gas appliances for respondent,

testified that the heater, because open flamed, close to the

bed, unvented and without automatic safety controls was

dangerous for use in a room used for sleeping purposes

(R. 35; 40-41). The gas code of the City of Bluefield

proscribed the installation of such heaters in sleepin

rooms (R. 41; 46-47; 57-58), and petitioner was afraic

of it (R. 19; 21). Respondent’s general manager testifi-

ed that providing petitioner a safe place to sleep was not

part of the employment agreement (R. 49).

Respondent says no sheets, blankets, or pillows were

furnished because “ that would create a problem in laun-

dry and this and that” (R. 41-42) but plaintiff, in winter,

used a blanket, and in summer, a light counterpane,

brought from his home (R. 16-18; 30-31; 33-34) and fur-

nished his own pillow (R. 18). Petitioner took naps at

night fully dressed, except for removal of his shoes (R.

39; 20). Respondent’s janitor was required to clean

other rooms in the building but not petitioner's duty room

(R. 54; 38; 45; 24), and it was constantly dirty (R. 30:

32, 42-43; 38; 54; 85).

A radio, belonging to another employee, was located in

another room but could not be used in petitioner’s duty

room (R. 55; 17; 20). No cooking facilities were pro-

vided, petitioner usually eating at home cr, on a few

occasions, having his wife or daughter bring food to him

at the plant.

During the period after March, 1952, as to which re-

spondent kept records (R. 52-53), calls received and

acted on by petitioner after 10:00 P. M. were not nume:-

ous. Because of system trouble, calls prior to March,

1952, received after 10:00 P. M., were sumewhat more

numerous (R:21). Petitioner was not paid for any

duties performed after 10:00 P. M. or for more than

thirty-five hours per week (R. 48-49; 25).

During the entire period of employment, ,,. itione:

5

and other of respandent’s employees, had telephones at

home (R. 22-23; 31; 45-46), a fact known to respondent’s

general manager (R. 46). Petitioner never used any

time on duty for the transaction of personal affairs.

Respondent, through testimony of an officer-stock-

holder, offered proof that it believed and concluded, from

an alleged study made in 1951, that neither respondent

nor petitioner were covered by the Fair Labor Standards

Act (29 U.S. C. A. 201, et seq), being of the belief (1)

that respondent was not engaged in interstate commerce,

and (2) that petitioner’s duties were not such as to make

him a covered employee, even if the respondent were a

covered employer (R. 58-60; 92-93). This officer could

not recollect whether he had studied the decisions of this

Court in Kirschbaum vs Walling, 316 U.S. 517, 62. 8. Ct.

1116 and Walton vs Southern Package Co., 320 U. S.

540, 64 S. Ct. 320 (R. 60).

Upon these facts the District Court found (1) that

since petitioner was provided “with a room in which to

sleep” and “a — safe and comfortable bed and other

equipment,and quarters, on which to sleep”, though “ar-

rangements” were made by which petitioner was to pro-

vide his own bed clothing, petitioner was not entitled to

compensation for six of the fourteen hours in each night

which -he ought to have slept, and was, therefore,

entitled to j t only for sixteen uncompensated

hours per week in excess of the forty hour statutory max-

imum, and (2) that respondent's “good faith conclusion

that the Wage and Hour Law did not zpply” warranted

a denial of any liquidated damage award provided by

Section 16 (b) of the Act (29 U. S. C. A. 216 (>)),

under Section 11 of the Portal-to-Portal Act (29 U.S. C.

A. 260) (R. 2-7).

After overruling petitioner’s motion to modify and

review its findings (R. 1; 8-10), the District Court enter-

ed judgment for petitioner only for actual due, at

overtime rate, for the hours in excess of forty hours and

reesancnte gr. Been Ase orS wey gece For

h ae 1,722.00, with costs .

mt — 00, attor

Petitioner appealed, ee as error the Court’s re-

‘fusal (1) to allow petitioner judgment for wages for the

full ninety-eight hours per week required to be spent on

respondent’s premises, (2) to award liquidated damages

upon the liability found, and (3) to award an sc caonatie

attorney fee. Respondent did not appeal.

The Court of Appeals affirmed all the findings and

conclusions reached by the District Court (R. 95-99),

except the findings relating to the adequacy, comfort and

safety of sleeping facilities furnished (R. 98). The

Court, instead, apparently an a its decision respect-

ing respondent’s failure to furnish safe, adequate and de-

cent facilities upon petitioner’s accession “without ap-

parent protests” to the arrangement that he furnish his

own bed clothes, and the fact that petitioner “never made

any complaint—about the facilities given to him”, such

as the “lack of a bath tub,—the dangerous type of heater

cat and—the general dirtiness of the quarters”

(R. 98).

SPECIFICATIONS OF ERROR TO BE URGED

The Court of Appeals erred:

1. In holding that six light duty, standby hours of the

fourteen hours in each night that petitioner was required

to be on duty in employment of this nature, on respond-

ent’s premises, are not compensable time under provi-

sions of Section 6 and 7 of the Fair Labor Standards Act

(29 U.S. C. A. 206 and 207), it has decided a question of

importance in a manner in conflict with a decision ot the

Court of Appeals for the Eight Circuit, and contrary to

the interests of justice.

2. In holding that, nothwithstanding respondent's fail-

ure to furnish petitioner safe, adequate and decent sleep-

ing quarters, bedding and facilities, the six light duty,

standby night hours, were not compensable time under

the Act, it has decided a question of importance in a

manner inconsistent with decisions of this Court, and

contrary to the interests of justice.

3. In holding that petitioner’s failure to complain of

7

the lack of safe, adequate and decent sleeping facilities

constituted a waiver or release of petitioner’s right under

the Act, to compensation for six light duty, by hours

in each night, it has decided a question of importance.in

a manner inconsistent with a decision of this Court, in

conflict with the holdings of other circuits, and contrary

to the interests of justice. :

4. In holding that respondent’s showing of mere belief

that it was not violatin yer Sat of ions 6 and 7

of the Act (29 USCA and 207), warranted the de-

nial of the ERE damage award required by Section

16 (b) (29 U. S. C. A. 216 (b) ), under provisions of

Section 11 of the Portal-to-Portal Act (29 U. 8. C. A.

260), it has decided an important question of Federal law

in a manner in conflict with, and as to which there is con-

fusion in, decisions of the Courts of Appeals of various

circuits, state appellate and trial courts, and contrary to

the interests of justice, and which has not been, but should

be, settled by this Court.

5. In affirming the judgment of the District Court.

REASONS FOR GRANTING THE WRIT

1. The Court’s holding that an employee whose duties

require him to remain alone, on his ry gh premises,

in charge of its business for a fourteen hour period each

night to watch for intruders and to wait for, receive and

take action on gas system trouble reports and service re-

quests is not entitled to compensation for that part of the

time gh | which actual duties were light and in which

he was authorized to rest, is erroneous, is in direct con-

flict with the decision of the Court. of Appeals for the

Eighth Circuit, in Central Missouri Tel. Co. vs Conwell,

(CA 8), 170 F. (2d) 641, and implicitly conflicts with

this Court’s holding in Missouri, K. T. Ry. Co. vs

U. S., 231 U. S. 112, 34S. Ct. 26; Skidmore vs Swift and

Co., 323 U. 8. 134, 65 S. Ct. 161; Armour and Co. +s

Wantock, 323 U. S. 126, 65 S. Ct. 165, which hold that,

except in the case of coy Seeenrene hour duty em-

ployees, as to which (b) *he Administrator has promul-

gated regulations permitting exclusion of designated un-

interrupted sleeping time and (3) who were paid for

duties performed qaiuie designated sleeping time, an

employee who is employed to wait on an employer's

premises, rather, than merely waiting to be employed, is

entitled to com tion for the full number of hours

onsen g so to be spent exclusively for his employer's

it.

This exception to the ral rule of compensability

under Section 6 and 7 of the Act (29 U. S. C. A. 206 and

207), which is applied to twenty-four hour duty em-

ployees, as to whom reasonable regulations respecting

exclusion of — idle pe designated ol een

uninterrupted s were prom recogni in the

Wantock and Skidmore cases, supra, and in the cases of

Bowers vs Remington Rand Co., (CA 7), 159 F. = )

114, Rokey and Day vs Zimmerman, (CA 8) 157 F.

(2d) 734; and Bell vs Porter, (CA 7) 159 F. (2d) 117,

all involving firemen, and applied by the Court below, is

clearly not applicable to ye bg whose occupations

and duties are not of closely similar nature. Central Mis-

sourt Tel. Co. vs Conwell (CA 8) 170 F. (2d) 641.

The Court of Appeals for the Eighth Circuit, which

had previously applied the exception respecting firemen

in Rokey and Day vs Zimmerman, supra, correctly dis-

’ tinguished it from the different situation presented with

respect to eleven hour shift telephone operators in Cen-

tral Missouri Tel. Co. vs Conwell, supra. Examination

of the Conwell case will disclose a fact situation closely

similar to that in this case, Indeed, if anything, the facts

in this case warrant even more strongly the application of

the general rule of total compensability than do those in

the Conwell case, since petitioner ( ap tae additional

guard duties (b) was alone in sole charge of, and re-

sponsible for, respondent's utility system and affiliated

and enterprises the entire fourteen hours spent

each night on the premises.

As in the Conwell case, petitioner was “required to be

in (the service plant) ready to serve — rendered —

necessary service for which (he) confessedly received no

compensation (after 10 P. M.) — (and) was not thete for

9

rpose of. nor for an Purpose of (his) owa

oe t's benefit”. And he was “

nesta of the Ei th Circuit, which 2 lies the ral

rule of the igh consonant with pigs genera

and intendment of Sections 6 and 7 of the Fain P Labor

Standards Act.

In y egal pail (CA 8) 8) 157 F. )2d) 463, 467, the

same Court earlier zed and applied the ‘rationale

of the Wantock and Ski wm cases, supra, that the prin-

cipal test of compensability for idle time is whether the

employee ts employed to wait on the premises of oe

arn

oe oe cases of Super-Cold Southwest Co. vs McBride,

ye A 5) 124 F. (2d) 90, and Howard vs Southern Beil

el. Co., 72 F. Sage: 276, cited by the Court below, are

clearly distinguisha le from the instant case because the

employees in those cases were not required to remain on -

the employer's premises.

2. The Court’s holding that petitioner must be con-

scene to be = a exception to the general rule -

ull com ility for hours employees are i

wait on tes cokes premises, which has been epplie sd

' only to twenty-four hour duty employees such as firemen,

conflicts with the holding of this court i itly condi-

tionin rip gases for night duty hours

— 1) the employer furnishing safe, and de-

eeping facilities and (2) compensating him for

cas within the designated sleeping period actually spent

at work.

The Gourt. of Appeals (8. 98), ead.the recond, indicare

oe Sr lekek canteens sage

type of heater furnished, and — the general dirtiness of

the quarters”. That safe, adequate and decent sleeping

facilities were not furnished petitioner is clear from the

opinion below (R. 98) and the record.

The exclusion of ge aantngae for hours of designated

sleeping time, even in the case of twenty-four hour duty

firemen as to whom the Administrator has made an ex-

ception by special regulations respecting idle time, is

clearly conditioned upon the showing that the employer

provided adequate, clean, safe and reasonably comfor-

table sleeping facilities in which to take a “normal night's

sleep”. Skidmore vs Swift and Co., supra; Armour and

Co. vs Wantock, supra. ;

The Court below cited Bell os Porter, supra, in which

sleeping time compensation was denied, as authority for

the te. d general proposition that this Court, in ot

certiorari thereto (Cert. granted 330 U. S. 817, Vacate

330 U. S, 813, Rehearing denied 331 U. S. 864), “has

upheld, however, the rule that sleeping time is not com-

pensable”, (R. 97 ). Not 1, te the denial of a writ by

this Court not a “holding”, but the facts in that case,

involving firemen on twenty-four hour duty who are ex-

cepted from the general rule, and that the court below

“aid not find that sleeping quarters were inadequate or

of such character — that — (the firemen were) unable

to obtain normal rest” and that they were furnished

“sleeping facilities, bedding, clothes lockers, showers,

toilet facilities and laundry service for bedding”, sup-

ported the court’s denial of compensation for sleeping

time, and, being consistent with the decisions this Court,

justified denial of the writ. |

Consequently, the holding of the court below that,

notwithstanding the respondent’s failure to furnish peti-

tioner safe and comfortable sleeping quarters and facili-

ties, required as a condition of excluding desi

sleeping time from hours ordinarily to be counted com-

pensable under Section'6 and 7 of the act, even in the

special class of firemen, conflicts with the holdings of

is Court in Skidmore vs Swift and°Co. and Armour

and Co. vs Wantock, supra, which implicitly coadition

Hil

or predicate the application of the exception to. the.

eral rule of compensability u upon the. Pio Sn

ing adequate aleepion ng se pe a a i i i

in a case such

premises, per icts with the holdi <r aggccone tov in

Brooklyn Savings Bank vs O'Neil, Uz 8. wie 65 S.

Ct. 898. which proscribed the release by an ‘of

claims wet under Sections 6, 7 and 16 (b) 0 the Act

‘(29 U. S.C. A. 206, 207 and 216 (b) ). 5

The Court below, conceding that ad ws err

for sleeping were not provid

compensation for the idle night hours. upon "peidowcr’s

agreement, “‘without protests, to furnish hts own bedding”

and that he “never made any complaint to his: #

about the “lack of a bath tub, — the dangerous type of

heater furnished, and — the general dirtiness of the

quarters” (R, 98). In other words, the court below holds

that petitioner, by agreement, inaction or failure.to com-

plain, waived or released his right to, or is estopped. to

claim, compensation for idle hours, in lieu of decent, safe

and comfortable sleeping facilities. Even if the excep-

tion to the general rule of camapensenaty for sae “.

ployed to wait on the employer $ premises, Bigs

firemen, is applicable to pa oi it is clear that an pom

ployer must either pay for such ‘time or provide safe,

comfortable and decent sleeping facilities. It follows

that only if the right to compensation under Sections 6

"se 7 of the Act can be waived or released, can the right

to adequate a in lieu thereof be waived

or released. Tennessee Coal and Iron Co. vs

Muscoda Local, 321 U, 8: $90, 602, 64'S. Ct. 698, 705

This Court’s holding in. Brook: n Savings 7 SAE

O’Neil, supra, prior to the peas of the Portal-to

412

Portal Act (29 U.S. C. A. 251, et seq), that an ent

could not release or otherwise relinquish benefit to

which he was entitled under au echomie ct

and 16:(b) of the Fair Labor Standards Act short of full

ag asege yment was modified by Section 3 of the Portal-to-

Portal Act (29 U. 8. C. % 253) only to the extent of

tfectng express cht to dliguide settlements and releases

liquidated damages provided in

¥ ka ‘ia Fair Labor Standards Act (29 U.

S.. we 41 ).. Moreover, the language of Secticn

3 (c), (29 U. 2 C. A. 253 (c)) providing that “such

compromise or waiver, —. according to the terms

thereof, be a complete satisfaction, — —and bar —”, clearly

indicates that even with respect to the right to liquidated

damages, an express written waiver or compromise in-

strument still is required.

In Handler vs Thrasher, (CA 10) 191 F. (2d) 120,

decided in aaa the princi ile of the O’Neil case was fol-

lowed, the Court holding that even though the employee

expressly agreed that he would not demand overtime Bay,

such an in contravention of Section

the Fair Labor Standards Act (29 U.S.C. A. 207), was

invalid and ad employee “cannot be estopped by its pro-

visions”.

Since, inieedtore, implied waivers or releases of bene-

fits of the are not embraced in, or a by, ,

4. The Court's holdi es ee a Bly.

to-Portal Act (29 U. S.C, A. 260) warranted the denial

oie ted provided under Section 16 (b) of

air Labor Standards Act (29 U. 8. eee )).

roaba tke found due under Sections 6 and

the Act (29 U. A 206 and 207), upon respondent’

mere claim of good faith involves an important. question

of Federal law as to which there is confusion and conflict

not, but should, decide. ify:

“13

Section 11 of the Portal-to-Portal Act (29 U.S. C..A.

260) provides that a court may “in its sound discretion”

deny an award of oF IN damages provided under

Section 16 (b) of the Fair Labor Standards Act (29 U.S.

C. A. 216 { )) if the “employer shows to the satisfaction

of pes soe at cori Rpwenenr nf noe th good fg i

at ad reasonable grounds for believing that his---

omission was not a violation—” of the Act. eres bo)

The trial court found that liquidated damages should

not be awarded because respondent “went into this mat-

t:r and secured advice” of a person not a lawyer (R. 60)

and “came to a good faith conclusion that the Wage

Hour Act did not apply”. (R. 7). The court below ap-

proved denial of liquidated only upon the testi-

mony of an officer and er of respondent, that

. eens petitioner was not a covered employee (R.

The only evidence offered in support of the Court's

exercise of the discretion reposed in it by Section 11, was

the testimony of this officer-stockholder of respondent

that he alone (R. 60) made a study, in 1951, of petition-

er’s job and duties, and concluded (1) that the respand-

ent, who buys its gas, by permission of the Federal Power

Commission, from an interstate gas company, distribut-”

ing and selling it through a connected system in the two

states of Virginia and W est Virginsa, was not in interstate

commerce and (2) that if in interstate commerce, the

petitioner's duties did not make him a covered employee.

The respondent’s first “conclusion” was obviously in-

credible, and, in view of this Court’s clear and unam-

biguous holdings in the landmark employee-

cases of Kirschbaum vs Walling, 316 U.S. 517, 62 8.

Ct. 1116 Fg! Ha Walton vs Southern Package Go.,

320 U, S. 540, 64 8. Ct. 320 (1944), the second “conclu-

sion” is hardly more credible. Respondent’s witness

couldn’t recollect whether he had st either of those

cases. (R. 60). ee RN 4

Since the good faith of respondent must be grounded

upon this se a employee coverage, this officer (1)

14

either did not make a study which inevitably would have

led to these decisions and, therefore, misled the trial

court, or if he made the study, found the cases-and, from

must have known that the petitioner’s employment

clearly was covered or, at least, assumed the risk of errur.

In either event, respondent could not have acted in good

faith, so that the trial court’s finding, approved by the

court below, that respondent has shown good faith, bein

without any support, constituted an abuse of the soun

discretion reposed in the court.

Moreover, the statute requires a showing of employer's

good faith and reasonable ground for belief in his in-

nocence of violation of the Act. Consultation with cone,

not trained in law, and who “concluded nothing” (R.

60) is, as the Court of Appeals recognized, obviously not

reasonable ground for belief in compliance with the

Fair Labor Standards Act.

Furthermore, there is positive evidence of respondent's

lack of good faith in its ype tee that, for the period

from August 11th, 1951 to March 15th, 1952, (R. 52; 11)

it kept no records of petitioner’s employment, in violation

of Sections 11 fc) and 15 (a)’ (5), of the Act (29 U.S.C.

A. 211 (c), 215 (a)(5)), and the showing that on

January 19th; 1953, it attempted a ruse designed to pre-

judice petitioner’s claim (R. 12; 50-52).

This Court has not yet had occasion to construe Section

11 of the Portal-to-Portal Act (29 U. 8. C. A. 260), and

there is general confusion riapioN: | the strictness or

liberality with which it is to be applied, among the de-

cisions of the various appellate courts. Some decisions

of appellate courts trial courts, and of the court

below, page's gk the denial or award of liquidated

damages without serious consideration, which is estab-

lishing a general pattern reposing absolute discretion in

- trial courts, Brown vs Dunbar, (CA 2) 189 F. (2d)

871; Central Missouri Tel. Co. vs Conwell, (CA 8),

supra; Rothman vs Publicker Ind., (CA 3) 201 F. (2d)

618: Addison vs Huron eshegr te ae — 2 204

F. ener Tripp: os May, (CA 7), 189 F. (2d) 198

while others deal with the subject with varying dégrees of

15

strictness, or apply different standards. Lassiter vs Atkin-

son, (CA 9) 1 . (2d) 984; Landaas vs Canister, (CA

3) 188 F. (2d) 768. be ,

If a trial court may deny award of liquidated damages

merely on the assertion of an employer that he acted in

good faith and that in his opinion he had reasonable

gees for believing in his innocence of violation of

¢ Act the statutory “sound discretion” has been, or wiil

soon be converted in practice, to “absolute discretion”

leading to practical repeal of the liquidated damage pro-

vision (Section 16 (b)) of the Fair Labor Standards

Act, which from its legislative history and terms, it is

obvious was not the legislative object sought in the enact-

ment of Section 11 of the Portal-to-P Act.

Moreover, since judgment for interest, ordinarily

chargeable upon other liquidated contractual demands,

is not permitted upon judgments for wages due under

provisions of Sections 6 and 7 of the Fair or Standards

Act, Brooklyn Savings Bank vs ‘O’Neil, supra, liquidated

damage awards under provisions of Section 16 (b) of

the Fatr Labor Standards Act should be denied, under

provisions of Section 11 of the Portal-to-Portal Act,

only upon strict and substantial proof supporting both of

the statute’s requirements of employer “good faith” and

“reasonable ground”

Whether the Court below erred in approving the de-

nial of the award of liquidated damages, and we contend

that it did, or whether it was right, it is submitted that

this Court should take this een to furnish guid-

ance and standards under which the “souad discretion”

reposed by the statute should properly b~ exercised.

CONCLUSION

For any or all of the reasons stated, it is ‘respectfully

submitted that a writ of certiorari should be granted.

FREDERICK T, KINGDON,

Attorney for Petitioner

May 3rd, 1954.

16

Section 16 hy Fair Labor Standards Act of 1938, as

amended ( . 8. C. A. 216):

“(b). Any employer who violates the provi-

sions of Section 6 or Section 7 of this Act (Scc-

tions 206 or 207 of this title) shall be liable +o the

loyee or employees affected in the amount of

their unpaid minimum wages, or their unpaid

overtime compensation, as the case may be, and in

additional equal amount as liqui ated dam-

ages.—”,

Section 3, Portal-to-Portal Act

(29 U. 8. C. A. 253):

“(a) Any cause of action under the Fair Labor

Standards Act of 1938, as amended, — may here-

after be compromised in whole or in part, if there

exists a bona fide dispute as to the amount payable

by the employer to his employee; except that no

such — cause. of action may be so compromised to

the extent that such compromise is based on an

hourly oor rate less than the minimum required

under such Act, or on a payment for overitme al

a rate less than one and one-half times such mim-

imum hourly wage rate.

* ¢ # # @# i

(c) Any such compromise or waiver, —, shall

according to the terms thereof, be a complete

satisfaction — and — bar to any action —.”

Section 11, Portal-to-Portal Act

(29 U. S.C. A. 260):

“260. Liquidated Damages. — In any action

commenced — to recover unpaid minimum wages,

unpaid overtime tion, ites Siem dam-

under the Fair Labor S$ Act of

1938 —, if the employer shows to the satisfaction

of the court that the — omission giving rise to

such action was in good faith and that he had

reasonable grounds for believing that his —- omis-

sion was not a violation of (the Act), the ‘court

17

may, in its sound discretion, award no liquidatcd

damages or award ian amount less than) specifi-

ed in ion 16 (b) of such Act.”