# Petition for A Writ of Certiorari — VanDyke v. Bluefield Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_2170%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1954 - **Citation:** 347 U.S. 1014 ## Text 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