Levinson v. Spector Motor Serv.

• Citation: 59 N.E.2d 817,389 Ill. 466
• Decision Date: 19 March 1945
• Docket Number: No. 28309.,28309.
• Parties: LEVINSON v. SPECTOR MOTOR SERVICE.
• Court: Supreme Court of Illinois

389 Ill. 466

59 N.E.2d 817

LEVINSON

v.SPECTOR MOTOR SERVICE.

No. 28309.

Supreme Court of Illinois.

Jan. 17, 1945.

As Modified on Denial of Rehearing March 19, 1945.

Appeal from Third Division, Appellate Court, First District, on Appeal from Municipal Court of Chicago; Wendell E. Green, Judge.

Action by Max Levinson against Spector Motor Service, a corporation, to recover overtime compensation and damages under the Fair Labor Standards Act. A judgment for plaintiff was reversed, 323 Ill.App. 505, 56 N.E.2d 142, and the plaintiff appeals on a certificate of importance.

Judgment of Appellate Court affirmed.

Yale & Yale, of Chicago (Harry L. Yale, of Chicago, of counsel), for appellant.

Golden & Golden, of Chicago (David Axelrod and Harry J. Lurie, both of Chicago, of counsel), for appellee.

THOMPSON, Justice.

This is an appeal on a certificate of importance from a judgment of the Appellate Court for the First District. Appellant, Max Levinson, brought an action in the municipal court of Chicago, against appellee, Spector Motor Service, a corporation, to recover overtime compensation and an additional equal amount of damages, pursuant to sections 7 and 16(b), of the Fair Labor Standards Act of 1938. 52 U.S.Stat. 1060, 29 U.S.C.A. ss 201-219. We shall hereinafter refer to the appellant as plaintiff and to the appellee as defendant.

From October 1, 1939, to October 6, 1941, plaintiff was employed by defendant, a Missouri corporation, licensed in Illinois and engaged in interstate commerce as a motor carrier of freight. Section 7 of said act, which it is contended was violated, provides as follows: ‘(a) No employer shall, except as otherwise provided in this section,employ any of his employees who is engaged in commerce or in the production of goods for commerce-(1) for a workweek longer than forty-four hours during the first year from the effective date of this section; (2) for a workweek longer than forty-two hours during the second year from such date, or (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.’

The aforesaid provisions of the act became effective October 24, 1938, and plaintiff claims that he worked 87 hours per week for the period from October 1, 1940, to October 6, 1941, during which time defendant violated section 7 of the act by refusing to pay him time and a half for all hours in excess of 42 hours per week during the period from October 1 to October 24, 1940, and for all hours in excess of 40 hours per week from October 25, 1940, to October 6, 1941, less one week's vacation.

Plaintiff was employed by the Spector Motor Service at its terminal located at 600 West Twenty-fifth street, in the city of Chicago, and checked, unloaded and received inbound freight. The inbound receiving platform is about a half-block long, connected with the office, and the trucks coming in back up against the terminal. The work of unloading is performed by gangs of three or four men together. One is a checker, one is an unloader and one is a wheeler. The checker goes into the office, asks for bills to correspond with the incoming load, and, after securing the bills from the terminal manager, his gang starts unloading freight on the terminal. The duties require the checker to check the freight, the sorter sorts it out, and the wheeler puts the freight in separate sections in the terminal and is told by the checker where to put it. The outgoing freight was operated in a similar manner but was carried on mostly in the nighttime. Plaintiff, as checker, had supervision of the others working with him, was in contact with the office, and checked payrolls, as well as shipment bills from various States named thereon against shipment freight loads, to see that they corresponded and tallied correctly.

Defendant contends that plaintiff has no right to bring any action under the Fair Labor Standards Act because the nature of his employment specifically exempts him from its provisions; that it is engaged in the business of interstate freight by motor vehicle and that it is under the specific jurisdiction of the Interstate Commerce Commission by virtue of the United States Motor Carrier Act of 1935, 49 U.S.Stat. 543, 49 U.S.C.A. s 304; that plaintiff worked as a dockman, loader and dock foreman, and during all of said time performed no duties other than those inherent to, directly connected with and incidental to, the safety of the vehicles and the cargo carried thereby and the persons connected therewith or who might come in contact with said cargo, vehicles, or either or both of them; and that plaintiff does not come under the provisions of the Fair Labor Standards Act for the reason that employment of this nature is specifically exempted thereby.

The trial court found the plaintiff worked 87 hours per week during the period for which this suit was brought and that the major portion of the work performed by him during that period did not affect the safety of defendant's operations and that plaintiff was not exempted from the provisions of the act. It is contended by defendant that this finding that the plaintiff is not exempted is erroneous as a matter of law and is against the manifest weight of the evidence. It is also contended by defendant that the amount of the judgment entered exceeded the court's jurisdiction in plaintiff's fourth-class action. In this respect the court found that plaintiff worked 87 hours per week from October 25, 1940, to October 6, 1941, which is 48 4/7 weeks which, under section 7(a)(3), were limited to 40 hours per week; that the salary of $150 per month divided by the number of hours worked and time and one-half for overtime, in violation of the provisions of the act, amounted to $487.44, and also found that, under the provisions of the act, plaintiff was entitled to a like sum of $487.44, as liquidated damages, and under further provisions of the act, entitled to attorney's fees in the sum of $175, and entered judgment for $1149.88, accordingly.

The Appellate Court held that plaintiff was exempted from section 7 of the Fair Labor Standards Act for the reason that some part of his workweek was devoted to the direction and supervision of the loading of interstate motor-vehicle carriers and that some of his duties substantially affected the safety of operation. The correctness of the Appellate Court's holding that the true determinant is whether an employee performs any duties which substantially affect the safety of operation, rather than whether the duties affecting safety are substantial, is the principal question before this court for solution. At this point it might be said that the trial court held as a matter of law, and found as a matter of fact, that the major portion of plaintiff's work did not affect the safety of defendant's operations within the meaning of section 204 of the Motor Carrier Act of 1935, and that plaintiff was not, therefore, exempted by virtue of said section 13(b), of the Fair Labor Standards Act of 1938, while the Appellate Court held that some part of plaintiff's work was devoted to the direction and supervision of loading of interstate motor freight carriers, that there was no question that the loaders in his gang were exempted from section 7 of the Fair Labor Standards Act because of the manner in which their work affected the safety of the operation of defendant's motor vehicles and that the duties of plaintiff, who planned and directed the loading, affected that safety. The Appellate Court further held that the true determinant is whether an employee performs any duties which substantially affect the safety of operation rather than whether the duties affecting safety are substantial, and that the finding of the lower court that plaintiff is not exempted was erroneous as a matter of law.

It is urged...