Skidmore v. Swift & Co.

• Decision Date: 23 July 1942
• Docket Number: Civ. No. 269.
• Citation: 53 F. Supp. 1020
• Parties: SKIDMORE et al. v. SWIFT & CO.
• Court: U.S. District Court — Northern District of Texas

53 F. Supp. 1020

SKIDMORE et al. v. SWIFT & CO.

Civ. No. 269.

District Court, N. D. Texas, Fort Worth Division.

July 23, 1942.

Tommy Forbis and Dee Estes, both of Fort Worth, Tex., for plaintiff.

Thompson & Barwise, of Fort Worth, Tex., for defendant.

WILSON, District Judge.

This is a case under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. It is a suit for overtime, based on alleged night work. The facts are all stipulated. The defendant does a general packing business, purchasing, handling, slaughtering, dressing, processing, selling and distributing livestock in interstate commerce. The regular daytime work of plaintiffs, Dennis and Millican, was in general fire hall duties for the defendant which mainly consisted of keeping the fire hall and all fire fighting equipment, including the sprinkler system, in good condition, and answering fire calls. The regular daytime work of plaintiffs Skidmore, Rousey, Phennell, Hayes and Roark was running the defendant's elevators, but certain nights were required to stay in the fire hall and respond to such calls as came in. The practical effect was that plaintiffs alike took their turn at sleeping at the fire hall certain nights out of the week, the time they were there and awake being spent pursuing whatever pleasurable pursuits, or personal duties, they cared for. At all of such times, however, they were subject to fire calls, for which they were paid per call, from the effective date of the Act up to January 1, 1940, 50 cents and thereafter at 64 cents. For their regular work they were paid weekly salaries, running from $27 to $29. The hours they were at regular work, the hours off for meals, off from regular duty, off nights at their homes, or wherever they wanted to be, the number of fire calls answered, what they were paid for them, and what each received each week, was all accurately kept and set forth in the stipulation. For their allotted time at the fire hall, they were required to be there. It was their duty as much as performing their regular work, only that, except for such emergency calls, which were few, they could spend their time, "talking, reading, bathing, dressing, shaving, sleeping, playing pool, dominoes, checkers and other games, listening to the radio".

Of course we know pursuing such pleasurable occupations or performing such personal chores does not constitute work. But does the fact they were subject to calls, though rare, make such hours, so spent, work hours under the Act for which overtime compensation is due them? That is the initial question. I do not think so. The Administrator's ruling on this subject strikes me as right: "In some cases employees are engaged in active work for part of the day but because of the nature of the job are also required to be on call for 24 hours a day. Thus, for example, a pumper of a stripper well often resides on the premises of his employer. The pumper engages in oiling the pump each day and doing any other necessary work around the well. In the event that the pump stops (at any time during the day or night) the pumper...