Skidmore v. Swift & Co., 10493.

Citation136 F.2d 112
Decision Date01 June 1943
Docket NumberNo. 10493.,10493.
PartiesSKIDMORE et al. v. SWIFT & CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

R. Curtis McBroom, of Fort Worth, Tex., for appellants.

B. V. Thompson, of Fort Worth, Tex., for appellee.

Bessie Margolin, Asst. Sol., U. S. Department of Labor, of Washington, D. C., for amicus curiae.

Before HUTCHESON and WALLER, Circuit Judges, and COX, District Judge.

WALLER, Circuit Judge.

Appellants sued for overtime compensation under the Fair Labor Standards Act (U.S.C.A., Title 29, Sec. 201 et seq.), including attorney fees and liquidated damages, totalling approximately $77,000.00. All facts were stipulated, a jury waived, and judgment rendered for defendant. No questions as to coverage or minimum wages were involved.

Plaintiffs were firemen or elevator operators or relief firemen, none of whom regularly worked more than the minimum hours per week, unless time spent at the fire hall subject to call in case of an alarm is held to be "working".

Plaintiffs orally agreed that in addition to their regular eight-hour duties they would remain in the fire hall, or within hailing distance thereof, three and one-half to four nights each week so as to be available in the event of an alarm. On these nights they were not required to perform any tasks except to answer alarms, for which they received extra pay.

No fires occurred during the period under consideration, but there were a few occasions when a defect in the sprinkler system would automatically set off an alarm.

Plaintiff Millican never answered an alarm. Dennis answered one alarm on the average of every two and three-tenths months. Skidmore answered one on the average of each two and one-half months. Rousey averaged one alarm in each fifteen months. Phennell and Hayes each answered only one alarm in two and one-half years. Roark averaged answering one alarm every five months. The time consumed in answering an alarm was ordinarily from fifteen to thirty minutes.

Plaintiffs claim the right to be compensated in overtime wages for the entire time they were in the fire hall, available in case of an alarm.

The fire hall was equipped with steam-heated, air-conditioned sleeping quarters, with a pool table, domino table, and radio for the comfort, convenience, and relaxation of the men. Plaintiffs could retire at their pleasure and sleep throughout the night unless one of the rare alarms sounded, in which event they responded and were paid for so doing.

These facts give rise to the inquiry whether under the Fair Labor Standards Act an employee is working when he is sleeping, playing pool, dominoes, or the radio, merely because he has agreed to stay on the employer's...

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11 cases
  • Duquesne Warehouse Co. v. Railroad Retirement Board
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 11, 1945
    ...United States, 320 U.S. 422, 426; National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170. 7 136 F.2d 112. 8 In the Belo case, Judge Hutcheson overstated the Administrator's contention before denouncing it. And, in the instant case, he has simil......
  • Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, etc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 27, 1943
    ...playing, or preparing to work is as much a matter of fact as whether one is asleep or awake, or is laughing or crying. In Skidmore v. Swift & Co., 136 F.2d 112, this court recently held, in an action for overtime compensation under 29 U.S.C.A. ß 207, that the burden was on the employees to ......
  • Armour Co v. Wantock
    • United States
    • United States Supreme Court
    • December 4, 1944
    ...or recreation. The Court of Appeals for the Fifth Circuit on facts of considerable similarity reached an opposite result, in Skidmore v. Swift & Co., 136 F.2d 112; Id., 323 U.S. 134, 65 S.Ct. 161. To resolve the conflict we granted certiorari in both cases. Skidmore v. Swift & Co., 322 U.S.......
  • Mitchell v. Warren
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 31, 1954
    ...solely upon conjecture, as there was no substantial evidence upon which the court could predicate a judgment. See also Skidmore v. Swift & Co., 5 Cir., 136 F.2d 112. Here, however, although the employee kept no hourly record of his interstate driving, there is definite evidence that he made......
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