Petition for Writ of Certiorari — Barras v. Salt River Valley Water Users' Ass'n (No. 511)

Supreme Court brief1957

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. — Ar 7 — i a FIiLBD

BUPREN F COUN V4 “SEP 3.) 1957

8 eee JOHN T. Fey, C

in the Sapien Court ut the duns Staten 88

OcTOBER TERM, 1957

i FAYE M. Barras, et al., PETITIONERS

Saur Riven Vaiusr WatTER USERS’ AssoctaTION

an Arizona corporation \

UNITED STATES COURT OF APPEALS FOR THE

MITCHELL J. COOPER

1631 K Sereet, N.W.

Weashingwoa, D. C

HERBERT B. FINN

- 123 West Monroe Screet

Phoenix, Arizona ~

w. r. A

8 Nice and Trum Building

Cowasel for Petstiowers

INDEX

é Page

—. —᷑̃ ͤ6b] md eT

I ˙ AA — 3

Question to Be Presented 2

Statute Involved - .—.—— 1

Statement of the Case F 9

Reasons for. Granting the Writ „ 5

— sisiclicsietesmniccuskorppaincann — — a

Appendix A: Decision of the bn of 833 1

Barras vs. Salt River Valley Water N

a1 Users Associaticn 10°

Appendix B: Decision of the Court of Appeals

9 Sturdivant vs. Salt River Valley

Water Users Association — 14 .

Ane C: Memorandum of Opinion and :

| Findings of Fact and Conclusions

N of Law of the District Court in

N Barras vs. Salt River Valley Water

„sers Association and Sturdivant

vs. Salt River Valley Water Users

. AAA 28

= 7

“CITATIONS ‘

Cases: * Page

Martino vs. Michigan Window. Cleaning | Co.

F //

Matcovoeh. vs. Anglin, 134 F. 2d 834. 8 en 8

McComb vs. Momaworhere Handicraft, * _

176 F. 2d 638 ..............2 1 5, 6.

Roland Electric Co. vs. o, Walting, 326 U.S. 657. 7

Rutherford Food Corp. vs. McComb, 331 U.S. 722. 6; 7

Tobin vs. Anthony Williams Mfg. Co. *

ITW cet chirah ane Stiientinatacginiieswines 6 6

Walling vs. Portland Terminat Co. * 5

330 U.S. 148 8 —ͤ e 6

United States Statutes: — oe '

r 1

WW — 2

2323 U.S. C. 1291 1291 —. — IE

28 U.S.C. 203 ee eee ee eee 88 2, 3

42 U.S.C. 301 (1946, as amended ) 26 U.S.C: an

1607 (i) (Supp. 1951).° P cae 7 .

. —

In the Supreme Caurt ul the Auited States

Octoser TIM, 1957

No.

Faye M. Barras, et al., PETITIONERS

a 3 v. :

Saur RIVER VALLEY WATER USERS’ ASSOCIATION, AN An-

ZONA CORPORATION ; 8 N

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Faye M. Barras on behalf of herself and thirty-four

other women pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Ninth Circuit, affirming, the judgment of the United

States District Court for the District of Arizona,which

denied relief to the petitioners herein. - ö

a “ OPINIONS BELOW

The opinion of the Court of Appeals has not yet been

reported. It is printed in Appendix A, infra. The opinion

of the Court of Appeals in the. companion case, Sturdivant

v. Salt River Valley Water Users’ Association, is not yet

reported and is printed in Appendix B. infra. The opin-

ions and the judgments of the District Court in both this

ne judgment of the Court of Appeals for the Ninth

Circuit was entered on July 5, 1957. The jurisdiction of |

this Court is invoked under 28 U.S.C. 1254(1).

= : «

. N :

a — il rms.

2 or Ape a3)

‘ . L

Tue District Court had jurisdiction under 29 U.S.C. 216

qn Cae Comet of Agente tnd javtetiotion ender 2p CSL

1291.

‘QUESTION TO BE PTESENTED

Whether the wives of employees of an employer in

interstate commerce are considered to be employed under

the definitions of the Fair Labor Standards Act of 1937,

as ainended, where

(a) The husband and wife (each husband admit-

tedly being an employee of the — resided.

: ina company station. 8 >

(b) The wife did work necessary to the ‘operation

of the company station and for the benefit of the

employer and aided the husband in \ the ee

of his duties.

_(e) The employer knew that ‘the u did this

work:

(d) The be were paid on a job-

rate basis under a system called a time- unit plan

and where a portion of the work performed by the

wives was work for which the 2 Was *

under this system.

(e) Little direct supervision or control was exer

‘cised by the employer over the performance of

duties either by the husband or the wife.

(f) Where no compensation was paid to the wives

for their work on behalf of the employer. The wives

were not carried on the company payroll.

_ ss STATUTE INVOLVED

Section 3 of the Fair Labor Standards Act (29 U.S.C.

203 entitled “Definitions” gives the following definitions:

“(d) i cr includes any person acting di-

rectly or indi y in the interest of an. employer i in

relatior to an employee but shall not include the

United States or any State or political subdivision of

a State, or any labor organization (other than when

acting as an employer), or anyone acting in the ca-

* of officer or agent of such labor organization.

(e) —— includes any individual ne

by an employ er.

ses

(g) ä includes to suffer or permit to

work.”

STATEMENT OF THE CASE eS

—

In November 1950, thirty-five: women 1 an

action against the Salt River Valley Water Users’ Asso-

ciation, an Arizona corporation, engaged in furnishing

irrigation water in the Salt River Valley of Arizona. The

amended complaint upon which the trial’ was held in the

District Court was filed on November 7, 1951.

This complaint alleged that the defendant was a ‘private

corporation; that the employees on whose behalf the suit

was filed worked in interstate commerce; and that each -

of the plaintiffs in the action, the petitioners herein, was

the wife of an employee of the defendant.

Just prior to the. commencement of this anther’ ‘the

husbands’ oß the petitioners filed an action for unpaid

minimum wages and overtime compensation. The com-

plaint in the husbands’ case, Leo ‘Sturdivant, et al. v.

Salt River Valley Water Users’ Association, an Arizona

corporation, which shall hereafter be referred to as the

companion case, alleged that they were paid under à so-

called time unit system, which essentially allowed

YS /

»/

a credit of so many minutés for each job performed. (The

Court of Appeals remanded the companion case to the

District Court for further proceedings relating to actual

time worked. See App. B. infra. )

The complaint in the instant case further alleged-that

the. husband- employees were described as zanſeros; that

each husband and wife lived at a ⁊arijero station; that

under the terms of the contract of employment it was

provided that the husband and his family occupied the

premises as servants of the company; and that each zan-

jero station, which was an employer ned building, was

by the irrigation company known as the zanjero division.

The function of the zanjero and his wife was to furnish;

water for the given geographical division after receiving

orders from users and company officials. The complaint

further alleged that*by the nature of his duties each zan-

jero was required to be out in the field many hours dur-

ing the day, that there were voluminous records required

to be kept by the zanjero and his wife; that each zanjero

station contained a telephone over which the zanjero and

his wife received water orders from users and orders

from the company. The employees of the company were

"| fequired to answer the telephone twenty-four hours a

day. The complaint further alleged that the zanjero di-

vision could not be operated Without the work. contrib-

= uted by the petitioners; that is, the wives. In addition to

answering tke telephone, the petitioners kept a great

proportion of the records that the company required its

employees to keep and received and transmitted numer-

ous orders complaints and other telephonic messages.

The District Court’ S. opinlon ruling against the petition-

ers stated that “the purpose of the Act is to establish

_migimum wages and maximum hours and not to create

any wage liabilities.” (App. C). The findings of fact of .

the District Court included a finding that it was a custom:

ary and usual practice of the users of irrigation water in

a zanjero division to call the zanjeros by telephone or to

come to the zanjero station to give the zanjero orders for

the delivery of water or relay complaints. The District

petitioners for the benefit of the employer was p

voluntarily at the request of the husband-emplo

Court further found, “All such work performed by plain- .

tiffs was work for which the husband was paid by de-

fendant pursuant to the terms and conditions of the col-

lective bargaining . between the * and

the zanjeros”. —

This finding was made ei a rulifig in the com-

panion case that the time unit credited to the husband

bore a substantially accurate relationship to the actual

time required by the husband to pertbrm his work. As

previously stated, the companion case has been femanded -

to the District Court for a finding of actual time worked.

The defendant employer had also denied that its em-

ployees were covered by the Fair Labor Standards Act

but the District Court found against the defendant-em-

ployer on this point and no appeal was taken by the em-

‘ployer, The nub of the decision of the District Court was

that the work of the petitioners was not controlled by

tne employer. — N

Ass a matter of fact because of the nature of the em-

„ ployer’ s operation there was little control or direct super-

vision exercised over the work of the ey

' REASONS FOR GRANTING THE WRIT

> The decisions and opinions of the District-Court and of

the Court of Appeals adopt an interpretation of the Fair

Labor\Standards Act. which, if adhered to, will frustrate

the intent and purpose of the Act and carry a trend of

interpretation of the word ‘ ‘employ” to where it very

closely approximates the common law definition: In ad-

dition as will be seen the Ninth Circuit is now in direct

N conflict with other circuits.

Both the 4th Circuit in McComb v. 3

ä 8

7 f

He: dicrajt, 176 F. 2d 63 (4048) te the 8th Circuit in

Tobin v. Anthony Williams Manufacturing Company,

196 F. 2d 547 (1952) have adopted the Rutherford Food

Corp. v. McComb, 331 U.S. 722, 67 S. Ct. 1473, 91 L.Ed.

1772 (1947) doctrine to the effect that an employee is one

whose work is a part of the integrated unit of produc-

fion” or in other words they have applied the test of

_ “economic reality” to the particular-task. However, the

9th Circuit in this case reverts almost completely to the

question of control for the purpose of determining

whether or not there exists an n employer and eve

relationship.

The lower courts ie the instant case based their opin-

ae ions on the decision of this Court in Walling v. Portland

Terminal Company, 330 U. S. 148, 67 S. Ct. 639, 91 L. Ed.

809 (1947), in which decision this Court recognized that

its language might lead to same abuses. The Portland

Terminal case turned on whether or not the persons in-

volved as learners or apprenticés -were employees. This

Court said in that case that the construction requested

by the Wage and Hour Administrator: * * would

sweep under the Act each person who, without promise

or expectation of compensation, but solely for his per-

sonal purpose or pleasure, worked in activities carried

on by other persons either for their pleasure or profit.”

330 U.S. 152, 67 S. Ct. 641, 91 L. Ed. 813.

- This decision is used to circumvent the obvious inten-

tion of the Fair Labor Standards Act; that is, to make

the definition of the word ‘employ’ “the broadest defi-

nition that has ever been included in any one Act”. Sen-

- ator (now Mr. J — Black, h Congressional Record :

7659.

2 the opinions of the courts below are allowed Ws

it will result in a judicial amendment of a statute, some-

thing which in social security legislation required an act

—

etre 3 | 3

ot Congress. 42 U.S. C. 301 (1946, as amended), 26 U.S.C. .

.- 1607 (i). (Supp: 1951) Since there has been no decision

on this point subsequent to the Portland Terminal mat-

~ . ter, or on any related point since Rutherford Food Corp.

v. McComb, supra, ae en enn ee

reconsider the matter.

Further, the lower courts’ decisions n will open

the way for. a raft of new decisions which will permit -

employers by the he assignment of work to require the wives

and even the families of employees to work without com-

. "pensation. The use of the classical common law criteria, -

particularly that of the right of control of the servant's:

conduct to determine employment relationship under the

Act is meaningless where little direct supervision or con-

trol was exercised over the husbands deer were admitted- |

ly employees. :

Most of the matters arising under the definition of the

word “employ” in this Act have involved independent

contractors. See Rutherford Food Corp. v. McComb, 331

_ US. 722, 67 S. Ct. 1473, 91 L. Ed. 1772 (1947); Roland

Electrie Company v. Walling, 326 U.S. 657, 66 S. Ct. 413,

90 L. Ed. 383 (1946); Martino v. Michigan Window

Cleaning Company, * 173, 66 S. Ct. 379. 90 L. Ed.

603 (1946) ; a

Although there have been other — litigated in

connection with this word, nothing has arisen which has

deen precisely in point. But as we have noted above, this

Court has time and again pointed out how broad are the

boundaries of this Act, as intended by Congress. The

very derivation of the word indicates its remedial nature.

As stated in Rutherford Food Corp. v. McComb, supra.

he definition of ‘employ’ is broad. It evidently de-

rives from the child labor statutes and it should be

noted tht this definition a. to the child labor

provision of this Act, § 12”.

Qn the other hand at common law there were four

elements which determined the question of whether or

not a master and servant relationship existed: the selec-

tion and engagement of the servant, the payment of

wages, the power of dismissal, and the right to direct the

manner in which the work shall be done, that is, the right

to control the servant. 35 Am. Jur. Master and Servant

§ 3, p. 445. This last element of master and servant re-

lationship is of course the critical one under the com-

mon: law. See Matcovoch v. ‘Anglin, 134 F. 2d 834 (9th

» Cir 1943). .

A point bs point examination of the decision of the

District Court and in particular of those findings of fact

which were quoted by the Court of Appeals in its opin-

ion clearly indicates that the common law elements are

the indicia which govern the Court's findings. An examin-

ation of Findings d and 7 of the District Court clearly

indicates a close and studied attention € the common law

The decision? the District Court and the Court of Ap-

peals in this case have clearly and dangerously frustrated

the entire purpose of the Minimum Wage Act and opened

a dangerous loophole by which employers in interstate

commerce might secyre services and have employees per-

form work not for less than the minimum wage but for no

wage at all: If this were the sole result of the decision

and even if there were no conflict between circuits, cer-

tiorari would be clearly indicated.

For che reasons above set forth, it is respectfully sub-

mitted that this petition for certiorari should be granted.

Respectfully submitt

-MITCHELL J. COOPER

1631 K Street, N. VV.

* 2 . Washington, D. C.

82 HERBERT B. FIN Nx

125 West Monroe Street

Phoenix, Arizona

W. T. ELSIN Se

Title and Trust Building

Phoenix, Arizona

Counsel for Petitioners

September 1987

. 2 7 d *

o\@

—— —

APPENDIX.A

Untrep States Court or APPEALS FOR THE

NintH Circuit

—

No. 14.850. July 5, 1957

Faye M. Barras, et al., APPELLANTS,

: vs. | ae

Sat RIVER wann 1 Users’ 1 AN ArI-

} CORPORATION, APPELLEE.

PON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA N

Before: Srrrurxs. Pope and Fes, Circuit Judges

JAMES ALGER Fes, Circuit Judge _ |

Thirty-five women brought action against Salt River

Valley Water Users’ Association, under the Fair Labor

Standards Act, for unpaid wages. It was alleged each

was respectively an employee of the ASsociation and that

the latter refused to pay anything for services of any of

them. The Association filed answer denying that any one

of these women was its employee. It alleged that. any

work or service performed by arr~of these women was

done without knowledge of the Association, was volun-

tary, and was performed without expectation of. compen-

sation by the particular woman.

At the trial, it was shown that waters are collected by

the Association form a 13,000 square mile watershed and

converge at Granite Reef Dam, near Phoenix, Arizona.

From this dam, the water is diverted into canals. Through

the canals, the water flows into laterals and ditches.

Thereby it is distributed to lands of farmers and other

users. Thereby it is distributed to lands of farmers and

* „

other users. This water is — by an *

supply obtained by pumping.

The area controlled by the Association was divided into

sixty-two divisions, each in charge of a zanjero,' who was

‘admittedly an employee of the Association.“ It was his

responsibility to see that the water was delivered to the

user in such quantities and at such times as the user

might order. a

Each woman plaintiff was the. wife of a Zanjero, ‘and

lived with him at the house provided by the Associatior..

The zanjero was required to live at his station and to have

access to a telephone. He was not required to be married,

but practically all of them were. At the stations where

the zanjeros and their wives lived, the Association had

telephones, some office equipment and office files.

Witnesses for plaintiffs, some wives, testified that they

had answered many business telephone calls each day

and transmitted business information to users and em-

ployees of the Association by telephone and otherwise.

Some wives kept various records and made written re-

ports for the zanjeros and did filing work. In some in-

stances, a woman might do work for her husband in the

“field, turning in water, making farm. — operating

gates and cleaning ditches. |

There was the contention that a zanjero could not

operate bis division without the help of his wife. The

officers and employees of the Association Knew in a gen-

eral way that the wives helped their husbands more or

less. It was claimed that the Assocfation required the

wives to work, for, if the work were not done, the zan-

jero would be let go.

There was no ev idence of any contract of employment .

‘A ditch rider or Wee

detween any of these wives and the Association. It was

the contention of plaintiffs that the common law rules of

employment did not apply and that the Association con-

sented to ‘suffer and permit“ these wives to perform

work for it. ”

The trial court found:

“The zanjero wife, including these women plaintiffs,

were not required. by defendant to perform any

duties as à condition of their husband's employment.

Plaintiffs received no instructions from defendants;

and defendant had no policy whereby it requested

the zanjero to instruct his wife with respect to duties

to be performed by her. Defendant exercised no

control over plaintiffs with respect’ to the manner

in which they used their time or with respect to

their activities: plaintiffs at all times were at liberty

to, and did leave the premises at any time and it was

not necessary for plaintiffs to notify defendant at

any time concerning such departures; ‘some wives,

including some plaintiffs, were employed regularly

away from the divisions by persons other than de-

* fendant with or without the knowledge of defendant, —

and without objection by the defendant.”

“Any work performed by zanjeros wives, including

‘plaintiffs, for the benefit of defendant was work per-

formed voluntarily, unknown to the defendant, and

not under the direction and control of defendant,

but at the request of their husbands. The extent of

the assistance of the zanjero wife to the husband

was controlled by the husband; in many cases the

-wife did not in any manner assist the husband in the

performance of his duties; in other cases the husband

induced the wife to assist him in varying degrees.

Assistance by the wife or other members of the fan-

ily was not necessary for the efficient performance

of the zanjero's duties. All such work performed by

plaintiffs was work for which the husband was paid

by defendant pursuant to the. terms and: ‘conditions

Pair Labor Standards Act, & 3(g), 29 U.S.C.A. § 203(g).

—— ash wretks ii

—— ol

‘

W — totes 0 Wha thebdder tn

of the collective bargaining agreement between the

defendant and the zanjeros.”

_ The trial court concluded:

“Defendant did not at any time material herein, suf-

fer or permit plaintiffs to work for it, and, therefore,

‘defendant did not employ plaintiffs.

n that defendant did not employ plaintiffs, the pro-

visions of the Fair r Standards Act of 1938, as

amended, 29 U.S. C. A., Sec. 200 [sic], et seq., are not

applicable.“ f

These findings must be affirmed.’ There is no error.

This Court is of opinion no.mistake was made.

Affirmed. 55 &

(Endorsed: ) Opinion. Filed July 5, 1957.

Paul P. O’Brien, Clerk.

Rule 52, Federal Rules of Civil Procedure.

APPENDIX B N

UNITED States Court or APPEALS FOR THE

Niern Circuit

No. 14,850 July 3, 1957

LEO Sturptvant, et al, APPELLANT .

vs.

SaLr RIVER VALLEY WATER USERS’ ASSOCIATION, AN ARI-

ZONA CORPORATION, APPELLEE. .

UPON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Before: . STEPHENS, Pore and Fre, Circuit t Jugs.

JAMES ‘ALGER FEE, Circuit Judge:

This is an action brought by Leo Sturdivant “for him-

self and in behalf of 35 (thirty-five) others, each of whom

is similarly situated” and has designated Sturdivant te

bring it on his behalf against the Association’ for account-

ing and back wages unpaid, in violation of the Fair Labor

Standards Act.“ Sturdivant, and each of the others desig-

, nated, is a zanjero, “one who rides the ditch.” They. to-

* gether with others to the total number of sixty-two di-

vision zanjeros, are employed hy the Association to con-

trol the flow of water in the irrigation system, turn water

into and out of laterals of the farmers, as requested, per-

> form maintenance and other duties, as directed.

The Association filed answér, and the cause was tried

by the court without a jury. The defense was based upon

two grounds. First, it was contended that the zanjeros

were not ergaged in activities covered by the Fair Labor

Standards Act and Amendments. Second, the agreement

‘Salt River Valley Water Users’ Association.

29 USC A. § 201, on , :

| 15

between the Association and the Unien, to which all

these zanjeros belonged and which was — rd

collective bargaining, was a bar to relief.

A considerable volume of testimony was taken. The

trial court held for plaintiff. All the zanjeros were found

to be under the provisions of the Act.“ The trial court

granted judgment in favor of each of; the zanjeros for

whom Sturdivant brought action in an amount which

would compensate him for the difference between $.70

per hour, from January 25, 1950, through November 27,

1950, and an hourly rate of $.75, required by the mini-

mum wage provision, of the Act for this period.“ The

hours were figured according to the agreement with the

Union hereinafter described. An appeal has been taken

by thirty-five of the thirty-six persons mentioned in the

judgment, as though each had been a plaintiff. No appeal

was taken from the adverse judgment by the Association.

The main argument has been about the terms of. de

agreement, which was entered into between the Union

and the Association, dated d. October J. 1945, and which

was used as a a defense.

The evidence tended- to show ‘that the agricultural

lands served with water by the Association were divided

into sixty-two zanjero divisions. Each of such ¢ivisions

comprises roughly an area of four thousand acres. The

Association furniskes each zanjero with an isolated house,

equipped with a telephone, in which he lives with his

family, if he has one.

Each, zanjero operated his division without direct |

‘This follows prior holdings of this Court, Reynolds vs. Salt

River Valley Water Users’ Association, 9 Cir. 143 F.2d 863, cert.

den., 323 U.S. 764; Salt River Valley Water Users’ Association

vs. National Labor Relations Board, 9 Cir. 206 F.2d 325.

29 U.S.C.A. § 207 (a) (1).

e a . i. \

e 16

supervision. The communication with the supervising

employees and the main office was by telephone.

Through this medium, requests ahd orders for service and

other work were received by him, and by this he in-

formed the watermaster of the quantities of water needed

and other matters concerning the operation of the divi-

sion. He daily written reports to a central office.

But he operated his division and did his work essentially

without other supervision.

During the growing season, the zanjeros necessarily

worked long hours and were on call day and night seven

days a week. In the winter, they may have worked as

little as three or four hours a day. When the zanjero was

not performing duties for which he was paid, he was not

under control of the Association and was at — to

use and did use his time as he desired. a

These zanjeros were represented by an Wee

ao streng Union, the International Brotherhood of Electrical

Workers, Local Union 266, which was the certified col-

~ lective bargaining agency for this class of employees of

the Association, among others.

The original collective bargaining agreement, hereto-

fore referred to, was dated October 1. 1945, but this has

deen renewed or renegotiated annually and amended

from time to time-since that date. These were intended

to be the full agreements between the Union and the As-

sociation, covering wages, hours and working conditions.

These agreements gave recognition to the nature of the

work performed by the zanjeros and the irregular and

_ fluctuating hours and the variation therein between the

growing season and the winter months, together with *

practical impossibility of supervision.

In order to meet this problem, each zanjero was re-

quired to maintain a written record of the various cuties

performed ” him during eacif work week. In 2 to

meet the difficulties just outlined, the agreements pro-

vided a schedule of these duties and a specified time

which would be credited to a zanjero for the — 3

ance of that duty.

In order to minimize: the variation Nan pay for :

| winter months and the growing season, each zanjero was

guaranteed by these agreements a weekly wage all year

around of approximately $48.00, besides the accomoda-

tions furnished to him. f 8982

The agreements applied the tyme credits listed upon th

schedule to determine the number of hours worked d

Ing the week. If the zanjero worked more than forty

hours in a particular week, the wage was determined by

dividing the guaranteed wage by the number of hours

worked. This established the hourly rate: of pay. If the

latter. were less than $.70, that figure was used as the -

hourly wage. If the figure arrived at by this computation

were more than 8. 70, then the figure loa ae set the

-hourly wage. Upon this base for forty hours, the zanjero

was also paid time and a half for every hour which he

worked over forty. The whole 8 was based

upon the time credits above described.

However, a somewhat cryptic provision ‘contained i in the

agreement gave the zanjero a right to turn in an itemized,

deta‘!ed statement of the hours worked each work week.

Wf he believed his pay check did not cover the amount |

due him “based on the hours worked during the work

week.” If he did not make such a statement within five

days after he received his pay check. the computations

made by the Association shall be binding upon the

parties.”

x Pee this course cannot be justified. The com-

plainant” Sturdivant has appealed and, if the course of the

—

’ proceeding has been improper, the -eause should be re-

The whole attack is upon the findings and conclusions

of the trial court. The criticisms are, in: general: First,

it is objected that the Association did not pay the regular

rate for the basic forty hours worked or time and one-

half for overtime. Secorid, it is said the findings did not

accord with the Belo Plan“ and the Belo Amendment.“

~ Third, it is said the collective bargaining agreements are

invalid because these provided for pay based not on hours

worked, but on the number of jobs performed irrespec-

tive of time worked, and that the zanjeros were not paid

for all hours worked. Finally, it is assigned as error that

no liquidated damages were allowed.

Te basic approach of “complainant” : is that the agree- .

ment was void upon its face because they were on duty

continuously and therefore were entitled to eredit for

~~ twenty-four hours in each day. This contention is com-

pletely refuted by the record, However, the hours and

times which were worked were * irregular and

can be only viewed as piecework.

Counsel for complainant said in n their position:

It is our position in this case the zanjeros are on call for

24 hours a day and therefore they are Working 24 hours

a day. * i

Insofar as the attack on the wes] ene of the agree-

ments related to-the computation of the basic pay, it

shauld receive attention. An improper method of calcu-

lation would in and of itself demonstrate illegality. Wal-

ling vs. A. H. Belo Corporation, 316 U.S. 624; Bay Ridge

Operating Co. vs. Aaron, 334 U.S. 446. The Belo case held

that an agreement providing for a basic rate for the first

Transcript of Record, page 270.

19 < *

forty-four hours and not less than time and orie-half for

all in excess of forty-four hours, as well as a guaranteed

weekly wage for the benefit of employees with fluctuat-

ing workweeks, was valid under the Act. The so-called

Belo amendment’ provided that such a plan, providing

for a regular rate of pay not less than the statutory mini-

mum, is valid; if employment is pursuant to a bona fide

individual contract or a collective bargaining agreement,

and there is provided a weekly guarantee of Pay for not

more than sixty hours.

“The trial court held that: neither of these had an in-

validating effect on the agréements here. The method of

spreading the guaranteed pay over the total number of

hours worked and compensating for overtime by paying

once and a half the basic hourly figure for every hour

over forty was approved in Overnight Motor Transpor- |

tation Co., Inc. vs. Missel, 316 U.S. 572. The Bay Ridge °

case has no applicability here. It was there held that,

where a contract provided for bonus pay or extra com:

pensation should be given for specialized hours, which

would not be included in basic pay for the forty hours

and thus would not be used in the computation of over-

time, the entire’scheme was illegal. ö a

The trial court held that the validity of agreements

containing guaranteed wage plans depends upon the facts

in each case, and the Fair Labor Standards Act imposes

no particular form of contract on the parties. ‘The trial

court also found these agreements met the requirements

of the Act. The court — found that the time

credits, noted above.

bear a substantially accurate e

ship to the actual time required by Plaintiffs to per-

form all the work required of them in that Piaintiffs

—

SCA S 20 (00 a 0

2 a —

20.

were not requiréd to work time in excess of. said

, agreed credits to perform all the work required. nes

The record bears out this fiinding. The situation called

for a guaranteed wage plan. These were agricultural

workers, who, because of peculiar circumstances, were

compensated under the provisions of the Fair Labor Stan-

dards Act. Such labor is, by the terms of the legislation

itself, usually excluded.’ The record shows that the condi-

tions of. industrial labor did not prevail here. At certain

periods of the year, there was practically no work to be

done. The ditches were dry. In the growing season, the

zanjeros were required to change water at times in the

night and take orders for changes day or night. The work

of each zanjero was necessarily done with a minimum

of supervision. At all times, he was essentially his on

supervisor. He was required by circumstances to keep his

own records. Basically, his employment’ ‘consisted. of

oF piecework.-

As a result of these conditions, the Asiociation fur-

nished the house in which the zanjero and his wife and

family, if any, lived. The 20enjero himself kept records

of his own time upon forms furnished by the Association.

Several items on the schedule were accorded the actual

time worked. There was complaint and some testimony

that the zanjero was not always paid for the time worked

and that the calculations of the Association were wrong.

But the zanjero was given an opportunity to ask correc-

tion based upon his own records under. the agreements.

The situation called for some practical solution. The

one chosen was arrived at by collective bargaining by a

strong union. Of course, if the basic scheme of time al-

location bore no relation to the actual times necessary

for the particular operation, the fact that the agreements

were negotiated over a course of- years by collective bar-

gaining would not render it legal. However, this circum-

stance should be considered in determining whether or

not each agreement was fair on its face. There is very

strong evidence to support the finding of the trial court

that the agreements were arrived at in good faith and

that there was a substantially accurate relationship be-

~ tween the time credits so agr&d upon and the actual

time necessary for the zanjero to perform all the work

required of him. *

Sturdivant takes exception to another. finding of the

trial court:

The work performed by Plaintiffs a. which they

were compensated as hereinabove found cohstituted ~

all the work performed by Plaintiffs for Defendant.

Prior to January 25, 1950, Plaintiffs were compen-

sated at an hourly rate which complied with the

minimum wage provisions of the Federal Labor

Standards Act

This objection must be ‘sustained. The 8 is vague

and indefinite and does not find the essential for a dispo-

sition of. the issues formulated on the complaint.

The “complainant” was responsible for this error. The

matter was treated at the trial as if the issues were the

validity of the agreements exclusively. As has been noted.

above, if the basic allocation of hours and pay were il-

legal or if the time credits had not borne any relation to

reality, this would have been sufficient. But the complaint

set up that Sturdivant and others were not paid for all

the hours which each worked. This complaint then at-

tempted to state thirty-six causes of action. If it were

proved that any person for whom claim was properly

presented in the action in any one work week labored

more hours than those for which he was comperisated, =

that cause of action would be established without more.

This i is the right —— by the Act. It would be accord-

‘See 29 USCA. § 213(a) (6).

——

ed irrespective of the 38 of the agreements. u

could not be cut off by any stipulation of the agreements

that the objection by the zanjero must t de made within

five days.

The trial court was led into error by the method of trial

dy the complainant.“ It was decided that, if it were

proved that each agreement was fair on its face and did

not violate the basic logic of the Act and that the time

credits bore a substantially accurate relationship to real-

ity, basis was-laid for a judgment for defendant. When,

therefore, the trial court further found that payments

were made to each of the persons involved in accordance.

with the time credits and the record prepared by the

zanjero himSelf, the matter was concluded.

g This reasoning is the basis for the finding to which criti-

cism is directed. But each person whose claim was prop--

erly before the court was entitled to prove that he worked

more hours in his employment in any specific work week

than those for which he received compensation. The trial

court could consider the record which he turned in to the

.. Asseciation, but that would not be necessary or in all

events conclusive. The 2 in each instance would be

dne of fact.

The ‘objections to these findings must therefore be

sustained on this ground. Although the full record is here,

this Court is not empowered to make findings. As to any

work week in which any person properly involved has

proven that he worked actual hours in the service of the

Association, in excess of, those for which he was paid, +

there should be a specific finding. This should set owt

the actual hours worked and the pay received and the

pay found due. Obviously, if the guaranteed wage were

paid and 8 1

1 USCA. 62 (2).

be required: wt te thie Sek tad otk obs Wins

pay and he actually did the work tn less time, no finding

is necessary. Similarly, an aggregate of time credits

which were paid for according to the agreement, where

mme zanjero worked on the whole less time, would venire

no congideration. :

But, where the record shows no b that i in one work

week or a series of work weeks a particular zanjero

worked more hours than those for which he was paid,

there should be a. definite finding.

We must also consider the final exception herein. It

was objected that the trial court concluded that plaintiffs

are not entitled to liquidated damages. “Hf the court find

that any of the persons properly i in this suit are entitled

to recover for any hours for which they have not hereto-

fore been paid, the court must also consider whether the

~ failure to make the payment was in good faith and there-

upon decide whether or not to award liquidated damages.

xnis Court does not attempt to pass pon any of these

auestions of fact.

Remanded for specifiic findings or retrial:

POPE, C. < concurring specially:

iI 0 with direc.

tion for further trial and findings: Judge Fee correctly

states that “The matter was treated at the trial as if the

issue were the Validity of the. agreements exclusively.”

The court men undertook to deal with what it conceived

to be the issue before it by finding: [Tlhe time credits

agreed upon... bear a substantially accurate relationship

to the actual time required by Plaintiffs to perform all of

the work required of them in that plaintiffs were not fe-

quired to work time in excess of said agreed credits to

perform all the work required.” I agree that the problem

' before the court cannot be dealt with by lumping off all

L * J

— a

we *

24 ; ö :

the claims in that manner, tor, as the opinion states, n

person whose claim was properly before the court, was

entitled to prove that he worked more hours in his, em-

ployment in any specifie work-week than those for which

he received compensation. The soundness of that posi-

tion, thus stated by Judge Fee, is demonstrated by what

the Supreme Court said in Bay Ridge Co. v. Aaron, 334

USS. 446, at p. 473, as follows: The defect in this argu-

ment, however the government's position is construed, is

that it treats of the entire group of longshoremen instead

of the individual workmen, respondents here.”

The problem which confronts us has arisen from the

fact that the collective bargaining agreement under toox

Jo assign a specified number of minutes to eértain stated

‘tasks, and the agreement was that the “unit-time allow-

ance“ used in the contract should be the basis for com-

puting — hours worked dy each zanjero. But as was

This was in Section 2 of Article XI which read as follows:

“Section 2. Due to the fact that the zanjeros do not report to

any of the offices of the Association for work and the time nec-

esarily worked by them for the Association is to a certain de-

8 within their control; it is hereby agreed by and between

e parties hereto that the following unit-time allowance shall

be used as a basis of — hours worked by each of .

the zanjeros:

(1) For each lateral or farm 8 including waiting time,

if any, incident thereto—15 minutes.

“(2) For each, card made out for continued or completed runs

—21l6 minutes.

“(3) For each run scheduled (including master buys) —3 min-

utes.

„ For each site traveled on Association’ s business—2 min- :

utes. :

“«5) For making each lateral report—10 minutes.

“(6) ‘Fog time worked by Relief zanjeros when not t operating

a division—Actual time as ordered.

“(7) Fantime spent under orders to stand by for eme cies

or in t erformance of other duties as ordered Actual time.

ker. cleaning grates or nen adjustments at forebays

Actual time.

held in the Bay Ridge case, supra, and as Judge Fee has

stated, the Act requires each employee to be paid accord- .

ing to the actual hours worked by him. My understanding

of thecholding of the Bay Ridge case is that this Statutory

obligation cannot be modified by any sort of agreement.

The trial court djd not try the case upon the theory

which we are now holding was proper here, and hence the

_proof of the time actually worked by individual plaintiffs

was very sketchy: But there is in the record evidence,

which so far has. not been controverted, that some of the

zanjeros actually required and took more time than that

listed in the unit-time allowances of the contract to per-

form the named tasks. Thus the plaintiff Sturdivant testi-

fied that he could not make‘any of the lateral or farm .

changes within the time periods mentioned in the con-

tract and explained why in detail. This testimony seems

to indicate that when Sturdivant was called to make a

farm change (for which 15 minutes was allowed) he

often had to make headgate adjustments at several points

for several miles along the ditch which were required

upon the mere turning of the extra head of water.at one

farm. For instance, when the additional water was added

to the ditch from which. several heads were presently

flowing, the increased supply in the ditch necessitated

readjustments of the gates all the way along the line. He

testiffied that he was not paid for all the oe: done on

his division.

The witness. Archer, another zanjero, deecribed at

length the manner in which lateral or farm changes had

to be made, how a typical operation of that kind was ac-

— and how a farm change for which 15 min-

“(9) er | stand-by or waiting time, if any, and for all other

duties not specifically mentioned above, such as telephone calls,

attending to complaints. emergency calls, and the like, plus

time consumed over and above that allowed in items 1, 2. 8. 4

and ot hours per wer week

utes was allowed might require the zanjero to work up

and down the ditch for miles taking as much as 6 hours

for such an operation. |

While the plaintiffs offered to prove in each individual

case the exact number of hours that the zanjero put in,

the court declined to go into that question because, as

stated before, the case was not being tried on that theory.

I differ in one respect with Judge Fee and that is that

there is no basis in the record for the court's finding,

quoted above, to the effect that the unit time allowances

“bear a substantially accurate relationship to the actual

time required.” I think that finding cannot be made for

the simple reason that the proof of the actual time ex-

pended was not taken, I have difficulty in understanding

just what. that finding means. To me it does not spell out

just what this “relationship” is. My best guess as to what

that finding says is that these stated units represent

“average” time required to perform the duties specified.

Il that is what it means it seems plain to me that some of

these plaintiffs are necessarily entitled to recover. The

act does not provide standards for compensation for aver-

‘age employees. It provides that an employee must be

compensated for actual time expended, No employer is

required by the act to hire any particular employee and

if his employee is below average in requiring more time

to do a stated job the employer need not keep him. But if

the employer hires à stated employee he must pay at least

the minimum wage for every hour worked by that em-

ployee and time and one-half for every hour worked over

40 hours. Thus if these units represent some sort of aver-

age it would appear that the below average employees

had put in more time than they were paid for.

In general my view is that although the negotiated |

contract between the association and the union appears

to de the result of a sincere effort to arrive at a reasonable

- - Solution of a most difficult problem, yet the general

' principles which underlay the decision of the court in

the Bay Ridge case, supra, necessitate a retrial of tl. s

case for the purpose of arriving at the findings called for

in Judge Fee's opinion. .

(Endorsed: ) Opinion: Filed July 3, 1957. .

Paul P. O’Brien, ‘Clerk.

APPENDIX C

In THE UNrtrep States District Court FOR THE DISTRICT

or ARIZONA

Civ-1550-Pxx.

Lro STURDIVANT, ET AL., PLAINTIFFS .

| it v 2

SALT RIVER VALLEY Water Users’ ASSOCIATION,

_ AN ARIZONA CORPORATION, DEFENDANT |

cCoe.-1851-Puc. a

Far M. BARRAS, ET AL., hanes

Vs.

SALT River VaLLeY Water Users’ ASSOCIATION,

XN ARIZONA CORPORATION, DEFENDANT

MEMORANDUM ON DECISION

Srurpivant CasEs P

Two issues are presented for determination: (a) Were

the plaintiffs engaged in activities covered by the Fair

Labor Standards Act and Amendments? (b) Is the con-

tract between plaintiffs’ Union and defendant a bar to

plaintiffs’ claim for relief?

It appears that the Amendrr ent to the Act effective N

January 25, 1950, did not en! rge the meaning of the

term agriculture as originally used, but merely added an

additional exemption. This being so, the rule announced

in Farmers Reservoir and Irrigation Company v. Me-

Comb, 337 U.S. 755, is controlling here on that score.

Defendant insists that its activities bring it within the

scope of the Amendment so far as plaintiffs are con-

cerned. It is.conceded that water stored under the proj-

N 29

ect is used for the generation of electric power, which is

sold at a profit. Who receives this revenue was a subject

of considerable debate, but this issue does not appear to,

be of consequence. Without deciding who receives the

profit it appears that water is stored for other than agri-

cultural purposes and that someone profits from this

deviation of use.

It is contended by dubia that plaintiffs are only

‘employed in the operation of waterways far removed

from the points at which electricity is generated, and that

water they distribute is used only for agricultural pur-

poses. and that no profit is derived from such distribu-

tion or use. If the reservoirs may be considered as sep-

arate and apart from the ditches, cana's and waterways

there is considerable merit in this contention, but it

seems ‘unrealistic to consider them in this light. The res-

ervoirs and waterways are an integrated whole for the

impounding and distribution of water. One is of no con-

sequence without the other. Hence it would seem that

plaintiffs, who were charged with the duty of turning

water from canals or ditches to lands under the project

were connected not only with the distribution of water,

but also with its storage, however remote that connec-

tion may ‘be. It is evident that all field employees of

defendant, whether zanjeros, reservoir-tenders or main-

tenance men re employed in the physical operation,

control and m tenance of the association’s reservoirs,

My ¢onclusion is, that plaintiffs activities are covered

by the Act as amended.

canals 5 heaa, ates.

The lective bargaining agreements under which

zanjerog have des employed since 1945 were renewed

or renegotiated annually and were intended to be the

full agreements between the Union and the Association

covering work and compensation.

overtime wages.

It is plaintiffs’ contention that because the contracts

contain unit-time allowance for certain of the activities

required to be performed they are invalid. It is said that

Walling v. Harnischfeger Corp., 325 U. S. 427, supports

this view. In this case on time studied jobs employees

were paid “incentive bonuses” or piece-work earnings”

in addition to base pay. In computing overtime the only

factor considered was base pay. The Supreme Court held

‘that the computation of overtime on this basis rather.

than the rate actually received violated the Act. How-

ever, it was not held that time-studied jobs violated the

Act. It may be added that in United States v. Rosenwas-

ser, 323 U.S. 360, the Court held quite the contrary. It

was there said that such employment is not prohibited,

but the Act merely requires that the earnings be con-

verted to an hourly basis for determining minimum and

The instant contract is further 00 upon the

ground that it finds no sanction in Walling v. Belo Corp.,

316 U.S. 572, or the so-called Belo Amendment, 29

U.S. C. A. Sec 207 (e). Numerous decisions are cited by

the parties on this issue. An analysis of these cases would

serve no purpose.

It may be gathered by reading them that the validity

of guaranteed wage plans depends upon the facts in each

case, and that the Act imposes no particular form of

contract on the partis In each case the test is whether

the wage stipulated in the contract of employment is

fictitious or whether such rate is in fact the actual rate

— — —

Mecomb v. Sterling Ice & Cold Stora Co. 165 r. 2d 285.

McComb v. Pacific. & Atlantic Shippers n., 175 F. 2d 411;

Overnight Motor Transportation Co. v. Missel, 316 U.S. 572:

— Helmerick & Payne, 323 U.S. 37; Wailing v. Young-

erman Reynolds Hardwood Co., 325 US. 419: Walling v. Har-

nischfeger Corp., 325 U.S. 427; Walling v. Haliburton Oil Well ö

Cementin 8 331 U.S. 17; Madison Ave. Corp v. Asselta, 331

US. 199; * 334 U.S. 446.

paid for the normal non-over time work week. Contracts

- stipulated wage rate do not. The contract here meets the

of employment in which the stipulated hourly rate bears

no relation to the guaranteed compensation violate the

Act, while contracts in which the guaranteed compensa-

tion is actually predicated upon and compũted by the

requirements of the Act. *

There is no claim made, that although me hours of

work were irregular and seasonal, that the guaranteed

ulated rate: Such contingency is covered by the contrack

wage was not regularly paid. However, it is contended——

that zanjeros were not always paid according to the stip-

which allows the employee to point out. such error to the

employer and collect the correct amount. The record does

not disclose that this relief was ever sought.

wages were fixed at 75c per hour. During the period from

The amendment to the Act (Sec. 13(a)(6)) became

effective January 25, 1950. By this amendment minimum

January 25,.1950, to November 28, 1950, plaintiffs were

paid less than this amount. They are entitled to recover

the difference. In other respects the contract is not viola-

tive of the Act.

The Barras Cases "

Im the Barras matter the Court is asked to classify the

. wives of plaintiffs as zanjero clerks and fix their compen-

sation as such.

The record shows that only married men were em-

pluyed as zanjeros, and it further appears that the wife

often assisted the husband w ith his paperwork at home’

and often received telephone calls. But it is difficult to

see how the Fair Labor Standards Act can be tortured

into covering this situation.

The Act, Sect. 3(e) (g). defines “employee” as “zed

individual employed 8 an 9 and employ“ b

—

‘ on t

a. Psy N ;

— ;

32 0 8

ineluding to suffer or permit to work.“ The purpose of

the Act is ta, establish minimum wages and maximiim

hours, and nd to create new wage liabilities. No case has

been found showing facts which even approximates the

facts here, but from decisions dealing with the applicable

Section of the Act it may be fairly concluded that cer-

- tain rules have emerged in somewhat similar situations.

I think it may be said that one over whose hours of labor

the alleged employer has no control, and to whom the

employer is under no obligation to pay wages is not an

“employee.” The evidence does not disclose that de-

fendant had the right to require the wives to work at any

time, nor does it appear that they were suffered or per-

. mitted to work under circumstance where an obligation

to pay them can be implied. The work they did in_assist- -

ing their husbands may well be said to have been for a

third person and not for defendant. The facts here would

see mto be analogous to the situation found if one took

piecework to his home. It has been held that such work-

er's employment brings him under the Act, but it could

hardly be said that a relative, who unknown to the em-

ployer, aided with the work also could claim to be an em-

ployee entitled to compensation. The plaintiffs: in the

Barras Case are not entitled to recovery.

Findings-vf-fact, canclusjpgs of law and judgment con-

sistent herewith may be submitted. @ )

Dated: November 17, 1954, at Phoenix, Arizona.

Is/ DAVE W. LING,

| Judge.

(Endorsed): Filed November 18, 1954.

— —

Walling v. Portland Terminal Co. 330 U.S. 148; Wallin

Nashville, Chattanooga & St. Louis Railway, 330 US. 158; al.

ling v. Jacksonville Terminal Co., 55 Fed. Sup. 302; Fox v. Sum-

mit King Mines, 143 F 2d. 926; Walling v. McKay, 70 Fed. Sup

160; Rogers v. Schenkel. 162 F 2d 596. Helena lendale Fe

Co. v. Walling, 132 F 2d. 616; Walling v. Sanders, 136 F 2d.

In rue UNITED STATES Disraict Count FOR THE DIsTRICT

or ARIZONA # } «

ae ae | Civ-1550-Pux. ae

‘Leo Srimptvanr, ET Al., , PLaneTirrs,

— — —ũ— — — ey —— 8 3

— 2 3 — 3

Sar RIVER VALLEY WATER USERS’ Aue, n.

AN ARIZONA CORPORATION, DEFENDANT.

FINDINGS OF FACT AND CONCLUSIONS ¢ OF

LAW AND JUDGMENT

The Court having heretofore heard the trial of the

above case and being fully advised in the premises, now.

makes the following:

Finding of Fact

The Defendant

A. Defendant is a corporation. organized in 1903 under

the Laws of the State of Arizona. The statutes in force

in the Territory of Arizona in 1903 provided for the or-

ganization of only “private” or public“ corporations

and private corporations could be organized only for the

purpose of.religion, charity or benevolence, sociability

or learning, or for profit.

B. Defendant was organized for the purpose of de-

veloping storage facilities with respect to and the dis-

tribution of the waters of the Salt and Verde Rivers. The

shareholders of Defendant are restricted to landowners

who possess prior appropriation rights to t'e waters of

ie Salt and Verde Rivers. Defendant's primary func-

tion is to act as the agent of its landowner-shareholders

for the delivery and distribution to said landowner-share- |

holders of their waters.

C. Defendant derives s some of its revenues from assess-

ments levied equally on its shareholders to defray the

cost of distributing and delivering water to its sharehold-

ers. Defendant does not have the power, by virtue of its

Articles of Incorporation, to levy assessments in an

amount in excess of the costs of distributing and deliver-

ing water to its shareholders.

D. The Salt River Project Agricultural Improvement

& Power District, a political subdivision of the State of

Arizona, was organized in 1937, pursuant to the pro-

visions of Artitle 7, Chapter 75, A.C.A., 1939. The share-

holders of and the lands embraced within ö are

identical to the District.

2 1937, all property of the Defendant was trans-

- ferred to the District, and the District assumed the debts

and obligations of the Defendant, including the debts due

the United States for the construction of the original

water distribution and storage project. Defendant agreed

to operate the water disribution system and the hydro-

* electric system of the District as an Agent of the District.

Defendant remains primarily liable to the United States

Government for its debts.

F. In 1949, by written agreement, the. District assumed

the operation of the hydro-electric system and Defendant

as agent of the District, the water distribution system.

G. The agreements between the Defendant and the

District provide that the revenues received by the Dis-

trict from its operations in excess of its cost of operation :

> Shall be transferred to the Defendant to: a) pay debts

due the United States,-b) for construction and better-.

ments of the water distribution system, and c) apply

balance to the cost of the distribution and delivery of

water. These revenues do not equal the amounts set forth

in a), b) and c), above and additional assessments are

levied against shareholders to supply the deficiency; if |

in the future these revenues ever exceed said expendi-

tures by virtue of the provisions of Publi¢ Law 478, 79th

Congress, Second Session, 1946, said excess revenues must

be applied to repay to the United States the original debt

of the landowners for the construction of the original

water storage and distribution project; by virtue of said

Public Law 478, if and when said debt is retired the said

excess revenues of the District may not be distributed as

profits and the electrical production of the District could

de sold at a price sufficient only to pay the Cost of operat-

ing the District and the Defendant. 0 5

H. That the reservoirs of the project were constructed

ard are used for the purpose of storing water for agricul-

tural. purposes. Since the construction of the reservoirs,

hydro-electric plants have been installed, and water re-

leased for irrigation purposes furnishes power for gen-

eration of electricity. Water from reservoirs is never re-

leased’ merely for the purpose of developing electric en-

ergy. but only when it can be used for irrigation purposés.

‘Electric energy thus generated is delivered and sold for

domestic use, commercial and mining purposes. The

the stored waters are distributed to the shareholders.

by canals, waterways and ditches. The defendant is ep-

gaged in the business of operating and maintaining

ditches, canals, reservoirs and waterways. The ditches,”

canals, reservoirs and waterways, known ‘as the Salt-

River Project, are used for the distribution of water for

agricultural purposes and for the generation of electrici-

ty. The Salt River Project is operated as an 1 4.

whole for the impounding and distribution of water for

the purposes. One is of no consequence without the other.

The water so delivered is used by the landowner-share-

holder exclusively for the purpose ‘of growing agricul

tural and horticultural crops. °

‘I. The Defendant has shown, based upon the state of |

the record and the evidence presented to this date, to

‘the satisfaction of the Court that its act or omission giv-

ing rise to the action filed by the laintiffs was in good

faith, and that it had reasonable grounds for delieving

that its act or omission was not a violation of the Fair

Labor Standards Act of 1938 as amended.

II.

The Plaintiffs

A. Plaintiffs were employees of the Defendant charged |

with the duty: of turning waer from canals or ditches

of the Project. Plaintiffs activities were connected with

the distribution and storage of th e water of the Project.

Plaintiffs, who were zanjeros, mployed in the physi-

cal operation, control and mc of the Associa-

t ion’s reservoir, canals and headgates. Their work was

closely related and directly essential to the production

of good#for interstate commerce. \

B. On August 9, 1941, the International Brotherhood |

of Electrical Workers, Local Union 266, was certified as

the collective bargaining agent of several classifications

of employees of Defendant; ‘Plaintiffs and zanjeros are a

class of employee represented by said Union.

C. Pursuant to agreement dated October 1, 1945,

- between ‘Defendant and said Union, together with amend-

ments executed thereto from time to time thereafter, the

wages, hours and working conditions of paintiffs were

and have been determined; the nature of the work per-

formed by Plaintiffs necessitated irregular and fluetuat-

ing hours of employment in each work week; the agree-

ments between Defendant and said Union gave recogni-

tion to said irregular and fluctuating hours and a guar-

anteed weekly wage was provided, by which Plaintiffs.

were compensated for hours worked in each work week

up to and including 40 hours; in addition said agree-

ments provided for the payment to Plaintiffs of time and

one-half their regular rate of pay for all hours worked

in excess of forty in each work week. The collective bar-

gaining agreements under which zanjeros have been em-

ployed since 1945 were renewed or renegotiated annually

and were intended to be the full agreements between the

Union and the Association covering wages, haurs and

working —-

The nn served by Defendant are divided into 62

zanjero divisions, each operated by a zanjero. Each of

f said divisions comprises roughly can area equivalent to

4,000 acres.

vision and he advised his immediate superior, the Wann

master, of the quantities of water needed from day to

day, and other matters concerning the operation of his

division by telephone, excepting only daily written re-

ports mailed to a central office.

D. In order to determine the n of Hours nee

in each work week, each Plaintiff was required to main-

tain a written record of the various duties performed by

him. The said agreements provided that a specified time

would bé credited to Plaintiffs for the performance of

each duty. Appendix. A“ sets forth the duties and cor-

responding time credits allowed for:the period covered

by this suit; the time credits agreed upon and as set forth

in Appendix “A” bear a substantially accurate relation-

ship to the actual time required by Plaintiffs ta perform

all the work required of them in that Plaintiffs were not

required to work time in excess of said agreed credits to

perform all the work required.

E. Plaintiffs at all times material herein have been

paid pursuant to the terms and conditions of said collec-

_ tive bargaining * \ ma Sar ey an

F. When Plaintiffs were not performing their duties,

for which they were compensated as hereinabove found.

they were not under the control of Defendant and they

were at liberty to use and did use their time as they de-

sired.|The work performed by Plaintiffs\for which they

were compensated as hereinabove found constituted all

the work performed by Plaintiffs for Defendant. -

G. Prior to January 25, 1950, Plaintiffs were compen-

sated at an hourly rate which complied with the mini. .

mum wage provisions of the Federal Labor Standards

Act;4rem January , 1950, through November 27, 1950.

the wage schedule effect permitted a rate which would

not de less than $.70 per hour, whereas the minimum

wage provision of the Act between said dates required

an haurly rate not less than $.75; the amount each Plain-

tiff would have earned between January, 23 1950, and

November 27. 1930. nad the minimum hourly rate paid

by Defendant been 6 78 per hour is set. forth in Appen-

dix B..

Conclusions of 4

, A. Plaintiffs are employed in the ee of malas

tor commerce within: the meaning of the Fair ‘Labor .

Standards Act of 1938, as amended, 2

B. The provisions of Section 13 (a) (6) of the Federal

Labor Standards Act of 1938, as_amended, 0

plicable to the Defendant.

C. The collective bargaining agreementa outta forth

the hours worked and method of pay of plaintiffs are

valid subsisting agreements and are not violative. of the

provisions of the Fair Labor Standards Act of. 1938, ex-

cept only that from the period January 25, 1950, through

November 27, 1950, the said agreements violated the Fair

Labor Standerds 4 of 1938. in that said agreements

“

39 or

provided for a minimum wage of not less than $.70 per

hour and not $.75 per hour as provided by law.

D. That Plaintiffs were paid pursuant to the terms of >

said agreements and were paid for all hours worked pur-

suant to the provisions of the Fair Labor Standards Act

of 1938, except for the period January 25, 1950, through

November 27, 1930, and except for the amounts set forth ~

in A p pe ndix H

. Paintifis are not ergitled to 8 chen.

Now. Therefore, It ™ Hereby Ordered, 1 and

Decreed:

„ 1. That the individual Plaintiffs herein . udgment

against Defendant each in the amounts Set fo *

pendix “B” attached hereto..

2. That Plaintiffs collectively~ have 3 against

Defendant as and for attorney's fee, the sum of One Thou-

‘sand ($1, 000.00) Dollars. :

3. That een: nie judgment against Defendant for

* costs. :

4. That Plaintiffs recover 9 as and for liquidated

damages.

5. That Plaintiffs’ complain in all other respects be

and the same is hereby dismissed and in all other respects

‘Defendant have judgment against Plaintiffs. -

Dated at Phoenix, Arizona. this 27th \ day of May. 1955.

0 DAVE w. LING.

Appendix *

Seetion 2 of Article XI of the Collective 8

Agreement between the Salt River Valley Water Users

Association and international Brotherhood ol rden

0 7.

Workers Local Union B-266, in effect, at all times ma-

terial herein provides:

“COMPUTATION OF HOURS WORKED”

“Section 2. Due to the fact that the zanjeros do not

report to Any of the offices. ot the Association for. work

and the time-necessarily worke d by them for the Asso-

ciation is to a certain degree within their control, it is

hereby agreed by and between the parties hereto that

the following unit-time allowance shall be used as a basis

of computing the hours worked by each of the zanjeros:

“(1) For each lateral or farm change, including waiting

time, if any, incident thereto—15 minutes.

2) For each card made out for continued or *

runs—2½ minutes.

3) For each run scheduled (ineluding master sb

3 minutes.

“(4) For each mile traveled on — 8 armed

each lateral report—10 minutes.

“(6) For time worked by Relief zanjeros when not op-

erating a divisten— Actual time as ordered. —

(J] For ume spent under orders to stand by for emer-

4 geneies or in the performance of d duties as

ordered Actual times ;

(8) For cleaning grates or making adjustments at fore-

bays Actual time.

9) For stand-by or waiting time, Many, and for all

other duties not specifically mentio above, such

us telephone calls, attending to complaints, emer-

gency calls, and the like, plus time consu

and above that allowed in items J. 2. 3, 4 and

14 hours per work week

“It is intended that the above computations shall not be

interlocking so as to produce dual credits for hours

—

41 .

worked. For example, no · eredits will de allowed for

duties performed under. items 1 to 5, inclusive, if at the

time of performing such duties credit és being allowed

under item 7 for ordered stand-by. In such cases one

credit only will be allowed.

“The weekly allowance under item 9 is for the opera-

uon of one division by a zanjero, and ah addétional allow-

ance of like amount will be made for each other division

that a ꝛanjero may M operating at the- same time. The

basic weekly rate of pay shall be incre by $5.50 per

day when a zanjero is required to double up and operate

two divisions at the same time. P

“It is also agreed that the sum total of hours worked as

_ computed above shall not exceed twenty-four hours in

any one work day from 6:00 p.m. to 6:00 p.m.

For the purpose of determining-the hourly rate of pay

to be allowed for hours worked during a work week in

which there both hours worked and vacation or sick

allowances, there’shall be added to hours worked during

the week an allowance of eight hours for each day of va-

cation or sick time. Hours worked Will then be paid for

att the hourly rate computed as above, until such*time as

the sum of hours worked plus the eight-hour-pe r day al-

lowance exceeds forty hours during the week, after

which time the rate of pay w a be one and one-half times

the hourly rate.

Af. in the jadgment of the zanjero, the amount paid

him by the Association is less, than the amount due him

under this Article XI, based on the hours worked during

the work week, then such zanjero shall Within five days

following receipt of his paycheck covering said week turn

into the Office ef the Irrigation Superintendent an item-

_ ized, detailed statement.of the hours worked each work

Wee ending in the period for which the paycheck is

given, and unless such statement shall be turned in with-

in such time, the computations made by the Association

shall be binding upon the parties. For the purpose of sat-

isfying himself as to the correctness of the Association's .

computation of hours worked, the books of the Associa-

tion shall at all times during office hours be open for *

zanjerò's examination and inspection.“

Appendix “B”

Name ; Amount Due

Anderson, Ry pele Wee Tenens wre „ $134.89

ve | — PORE 8 25.02

Barras, E. EK. — 8 154.69

Bollen, D 6 8

Bowers, John E. eee .

Carter, Foy OER ORCA .

„„ . Cannes 109.05

Engel. Carl E 1 3 CR

Gadd}, nai a one .

Gallagher, M 8 See

Harper, M. E. „F ngs oaase

Hendrix, Elbert ue 78.21

Horton, Stanley 8 4.29 -

Humble, Jimmy R. eae 60.07

Humphrey, N. B. A ene

Langdale,G.D. AL 42.03

Lawson, W V. 138.87

Leggin, Michael 5 178.19

Long. Cecil 8

Manley, H. K. 86.36

Menefee, Gene . sie 7.73

Patterson, P. |

Patterson. Ward am | 36.35 |

Pinkerton. G M.. (as sn?

Selliez, H. C. 12.11

Settlemire. C. D : 46.96

Smith, J. W. ) : 157.97

Sturdivant, Leo ........ rr 13.48

D . cceamnmthcnantin 43.59

v p mr

WW Rec Ra aE 82.83

Waldman, John ........ ......... 8 3 106.68

Webber J. W TTT 204.14

W.... OE eae

Wright. R. H.. . 3 „ 187.18

c —

Endorsed]: Filed and docketed May 27, 1955.

—

Unrtep States District Court

’ ron THE DISTRICT OF ARIZONA ~

Fave M. Barras, et al., Plaintiffs,

| — j vs *

Sat RIVER nn WATER Users’ Association, AN Am:

_ ZONA CORPORATION, DEFENDANT.

3 OF FACT AND CONCLUSIONS’ OF LAW "|

AND JUDGMENT

The Court having heretofore heard the trial of the -

above case, and being fully advised i in the premises, now

makes. the * 7

cS Findings of Fact

| me

The individual women Plaintiffs were at all times ma-

etrial herein wives of persons employed by. Defendant

as zanjeros. Plaintiffs and their husbands lived together

in a house owned by Defendant and leased by Plaintiffs’ l

husbands. The individual male Plaintiffs are joined as

technical party Plaintiffs only as a result of a require- .

ment of the community property laws of the State of

Arizona.

II.

The houses in Which they and their husbands resided

were equipped with a telephone, Which while installed

and maintained by Defendant to aid the zanjero in the

performance, of his duties, was also used and available

for the personal use and convenience of the zanjero and

his family. The Defendant also provided for the zan-

| 45

jero, filing cabinets, forms and stationery with which to

perform his duties. aris Re;

ö III.

It is customary and a usual practice for the individual

farmers in the area served by the zanjero to either call

the zanjero by telephone or to come to the zanjero house

personally to give the zanjero orders for the delivery of

—

water and other matters for which the zanjero was em-

ployed to perform.

IV.

Telephone calls would be received dy any member of

the family present. If the call related to duties of the

zanjero, and if he was present, then the zanjero would

respond to the call: if the zanjero was not present; the

wife or some other member of the family would relay

the message to the zanjero. The zanjero's wife frequent-

ly helped her husband by filling out water or Z. A. S..

cards and other clerical reports. 9

Generally, the zanjero was married, but the Defendant

has employed and is now employing unmarried zanjeros.

The Defendant prefers the zanjéro to be married and this

preference stems from the requirement of the defndant

that the zanjero live in the house situated on his division.

which might -be several miles from a populated area.

More stable employment tenure is nehieved among mar-

ried rather than unmarried zanjeros.

* *

a 1

The zanjero's wife; including these women Plaintiffs.

were not required by defendant to perform any duties

as a condition of their husband's employment. Plaintifts

—

received no instruetions from Defendant; and Defend -

ant had no policy whereby it. requested the zanjero to

instruct his wife with respect to duties to be performed

d her. ‘Defendant exercised no control ‘over: Plaintiffs

wie respect to the manner in which they used their time

or with respect to their activities: Plaintiffs st all times

were at liberty to, and did leave the premises at any

time and it was not necessary for Plaintiffs to notify De-

fendant at any time concerning such departures; some

wives, including som intiffs, were employed regular.

ly away from the divisions by persons other than De-

fendant with or without the knowledge of Defendant, and

wihiout objection by the Defendant.

VII.

Any work performed by zanjero wives, including f

Plaintiffs, for the benefit of Defendant was work per-

formed voluntarily, unknown to the Defendant, and not

under the direction and control. of Defendant, but at the

request of their husbands. The extent of the assistance

of the zanjero wife to the husband was controlled by the

husband; in many cases the wife did not in any manner

‘assist the husband in the performances of his. duties; in

other cases the husband induced the wife to assist him in

varying degrees. Assistance by the wife or other mem-

bers of the family was not necessary for the efficient per-

formance of the zanjero’s duties. All such work per-

formed by plaintiffs was work for which the husband was

paid by Defendant pursuant to the terms and conditions

of the collective bargaining agreement between the De-

fendant and the zanjeros.

VIII.

Prior to the filing of thèir action, plaintiffs at no time

notified Defendant that they were performing work for

the Defendant, nor did Plaintiffs at any time ever request

compensation for work allegedly performed.

_ Conclusions of Law

me : I. . ae

Defendant did not at any time material herein suffer

or permit Plaintiffs to work for it, and, therefore, De-

fendant did not employ Plaintiffs. ‘

i * 5 ure

In that Defendant did not employ Plaintiffs, the pro-

visions of the Fair · Labor Standards Act of 1938, as

amended, 29 U.S. C. A., Sec. 200, et seq., are not applicable. on

_It is, Therefore, Ordered, Adjudged and Decreed that

Plaintiffs’ complaint be and the same is hereby dismissed.

Ilt is Further Ordered, Adjudged and Decreed that

judgment be and the same is hereby granted Defendant.

It is. Further Ordered, Adjudged and Decreed that De-

fendant have and recover from Plaintiffs its costs in-

curred. bene ee 2

Dated at Phoenix, Arizona; this 27th day of May, 1955.

s DAVE W. LING

Judge.

‘(Endorsed!: Filed and docketed May 27, 1955.

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