Ballard v. Consolidated Steel Corporation

• Decision Date: 30 July 1945
• Docket Number: Civ. No. 3850.
• Citation: 61 F. Supp. 996
• Parties: BALLARD et al. v. CONSOLIDATED STEEL CORPORATION, Limited, et al.
• Court: U.S. District Court — Southern District of California

61 F. Supp. 996

BALLARD et al. v. CONSOLIDATED STEEL CORPORATION, Limited, et al.

Civ. No. 3850.

District Court, S. D. California, C. D.

July 30, 1945.

Arthur Garrett, of Los Angeles, Cal., for plaintiffs.

Alfred Wright and Harold F. Collins, both of Los Angeles, Cal., for defendant Consolidated Steel Corporation, Limited.

J. F. T. O'CONNOR, District Judge.

(1) Action under the Fair Labor Standards Act

This case was tried before the Court sitting without a jury, and thereupon ordered to stand submitted on briefs to be filed, which briefs have been filed and duly considered by the court. The opinion of the Court herein concerns exclusively twenty-one firemen or former firemen, and twenty-seven guards or former guards, of the Consolidated Steel Corporation, Ltd., a corporation, who, as plaintiffs, all members of the American Federation of Labor (known as Guards, Shipyard Firemen, Plant Protection Local Union No. 1155), have brought suit against said corporation, hereinafter referred to for brevity as the defendant, to recover pay and/or overtime pay and liquidated damages under the Fair Labor Standards Act of 1938, Act of June 25, 1938, Ch. 676, 52 Stat. 1060, 29 U.S.C.A. §§ 201 to 219 inclusive, under conditions which it will be necessary to enumerate somewhat in detail as a predicate for the conclusions herein reached by the Court.

The defendant contended that the plaintiffs herein were bound to first submit this controversy to arbitration under the terms of the collective bargaining contract entered into between the Union and the defendant. The plaintiffs contended that the Union had no authority to make such a contract, and that the collective bargaining agreement was null and void under the recent decision of the Supreme Court in Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America, etc., 1945, 65 S.Ct. 1063, 1068.

In that opinion the Supreme Court said: "In fact, some of these statements expressly recognized the necessity of modifying or setting aside those collective agreements that did not conform with statutory standards."

While it is true that a strong dissenting opinion was written by Mr. Justice Jackson, concurred in by the Chief Justice, Mr. Justice Roberts and Mr. Justice Frankfurter, who held that the Union had the authority to enter into a collective bargaining agreement, and that these agreements should be respected and their terms enforced, this Court is bound by the majority opinion; and, in view of this recent decision of the Supreme Court, this Court is of the opinion that the contention of the defendant is unsound.

At the time of the commencement of the suit the defendant was doing business as a shipbuilder engaged in the construction of ships in a shipyard at Wilmington, County of Los Angeles, California; and, in the operation of such business, and in the construction of such ships, the defendant used materials substantially all of which were manufactured, purchased and transported in interstate commerce from and through states other than the State of California, and the ships built and manufactured by the defendant have been transported and distributed not only in California but throughout the world.

The foregoing narration of the defendant's business is one of the allegations of the plaintiffs, and is not substantially controverted by the defendant, except for the assertion that, in the latter part of the year 1941, during the construction of a new shipyard, certain employees of the defendant could not come within the purview of the Fair Labor Standards Act. This phase of the case will be alluded to later.

(2) Statute of Limitations applicable

Originally, this action was filed on September 8, 1944, by "Jesse W. Ballard, for himself and on behalf of all employees and former employees of the defendants similarly situated." On motion of counsel for the defendants that this was not a class action, and that all plaintiffs bringing suit should be specifically named, the Court directed counsel for Jesse W. Ballard to specify the names of the plaintiffs; and thereupon, under date of November 15, 1944, counsel for the plaintiff Jesse W. Ballard filed a "First Amended Complaint" specifically naming one hundred and thirty-two individuals, as plaintiffs, more or less, including Jesse W. Ballard.

During the trial, on motion of counsel for the plaintiffs, the case was dismissed without prejudice as to all the plaintiffs in the case except twenty-one firemen or former firemen, and twenty-seven guards or former guards, of the defendant corporation, hereinafter to be specifically named for definiteness, and the opinion of the Court does not adjudicate the rights of the dismissed plaintiffs, if any, in any respect.

While the Court is satisfied that the three years' statute of limitations applies to this suit to recover pay and/or overtime pay, and liquidated damages¹; and that all pay and/or overtime pay for services rendered prior to three years of bringing suit is barred by the three years' statute of limitations, it will not be necessary to determine from which dates the three years' statute of limitations begins to run, that is, from September 8, 1944, or November 15, 1944, in view of the fact that none of these forty eight plaintiffs now in the case entered the employment of the defendant corporation prior to December 7, 1941, and no claim is being made for compensation for time and/or overtime for services performed on and after May 1, 1944.²

(3) Plaintiffs' position

The names of the twenty-one firemen or former firemen, and of the twenty-seven guards or former guards, now remaining in this case as plaintiffs, and who are solely concerned with the decision of this Court, are as follows:

                Firemen:                      Date of Employment
                Captain Robert E. Dunn,       March 11, 1942
                Peter G. Findlay,             November 16, 1942
                Frederick C. Stock,           April 15, 1942
                Kenneth A. Arnold,            October 7, 1942
                John L. Hameetman,            May 16, 1942;
                William J. Gerlach,           October 30, 1942;
                Harold H. Ross,               October 20, 1942;
                John F. Weigel, Jr.,          September 28, 1942;
                John Feely,                   January 26, 1943;
                John M. Davis,                October 6, 1942;
                Clyde E. Morrison,            June 1, 1943;
                Kenneth W. Moore,             September 13, 1943;
                Harry Berman,                 May 12, 1943;
                Lester Roberts,               December 20, 1942;
                Jack R. C. Gregory,           April 3, 1942;
                David O'Leary,                August __, 1943;
                Cecil Baggs,                  March 11, 1942;
                George H. Langskov,           July 20, 1942;
                B. B. Smedley,                September 2, 1943;
                Roy R. Huckleberry,           October 28, 1943;
                Noble Reid,                   March 5, 1942;
                Guards or Policemen:          Date of Employment:
                J. G. Lukomsky,               December 7, 1941;
                Jesse W. Ballard,             December 10, 1941;
                Paul J. Anderson,             April 3, 1942;
                Frederick E. Rauh,            February 2, 1943;
                J. Tate,                      March 15, 1943;
                Seldon K. Henry,              March 25, 1942;
                Daniel J. Seiber,             July 10, 1942;
                Clarence H. Dick,             December 9, 1941;
                John W. B. Young,             March 24, 1943;
                Mrs. Marjorie W. Gerlach      November 22, 1943;
                Thomas Wilkie,                January 24, 1944;
                Earl A. Arm,                  March 18, 1942;
                Charles A. Runyan,            January 15, 1943;
                Thomas Vice,                  July 13, 1942;
                Herbert E. Rasmussen,         July 14, 1942;
                William E. Hagood,            February 14, 1944;
                John G. Lundgren,             April 10, 1942;
                Albert Dean,                  September 2, 1943;
                Lenn E. Sitz,                 August 14, 1943;
                P. H. Crutchfield,            November 30, 1942;
                Frank Oliphant,               July 22, 1943;
                Eldon N. Callaway,            December 11, 1942;
                Samuel Bailey,                May 5, 1942;
                Edward M. Harsh,              February 9, 1943;
                W. E. Hunter,                 May 10, 1943;
                V. P. Kirk,                   July 13, 1943;
                A. B. Cunningham,             April 24, 1943.
                

These forty-eight plaintiffs contend that within the three years' period immediately prior to the commencement of this action they were employed in an occupation necessary to the production of ships in California; that is to say, as guards and watchmen to protect the said ships and materials of which they were made, and the facilities with which they were made, from theft and from damage by sabotage.

While there was some evidence in the case to the effect that during the latter part of the year 1941, and at least for several months immediately subsequent to December of 1941, the defendant was constructing a new shipyard and shipyard facilities at Wilmington, California, and that during this period numerous guards and firemen were assigned to posts located on the new construction sites, such as shipways, docks, piers and open areas, and that, therefore, guards and firemen engaged exclusively in guard and fire watching duties on this class of construction would not be employed in interstate commerce,³ the evidence is not clear to the Court that any of the present plaintiffs during this period of time were acting as firemen or guards on this type of construction; in fact, the earliest time that any of the remaining forty eight plaintiffs in this case entered the employ of the defendant corporation was December 7, 1941, being plaintiff J. G. Lukomsky.

The court has jurisdiction over the subject matter of this controversy by virtue of the provisions of Sec. 16(b) of the Fair Labor Standards Act, and also by virtue of the fact that this suit arose under a law regulating commerce, namely, the Fair Labor Standards Act of 1938, Sec. 41(8), 28 U.S.C.A. The Court finds as a fact that all of the plaintiffs now before the court were engaged in interstate commerce, as that term is understood and interpreted under the Act.⁴

The amended complaint alleges that within a period...