Barksdale v. Ford, Bacon & Davis

• Decision Date: 21 February 1947
• Docket Number: Civil Action No. L. R.-1323.
• Citation: 70 F. Supp. 690
• Parties: BARKSDALE v. FORD, BACON & DAVIS, Inc.
• Court: U.S. District Court — Eastern District of Arkansas

70 F. Supp. 690

BARKSDALE v. FORD, BACON & DAVIS, Inc.

Civil Action No. L. R.-1323.

District Court, E. D. Arkansas, W. D.

February 21, 1947.

Catlett & Henderson, Leon B. Catlett and E. DeMatt Henderson, all of Little Rock, Ark., for plaintiff.

Owens, Ehrman & McHaney, E. L. McHaney, Jr., and John M. Lofton, Jr., all of Little Rock, Ark., for defendant.

LEMLEY, District Judge.

This is an action under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., for overtime compensation, liquidated damages and attorneys' fees, brought against the defendant Ford, Bacon & Davis, Inc., by the plaintiff Guy W. Barksdale and 26 other men who were employed in supervisory capacities in the operation of the Arkansas Ordnance Plant during the late war.¹

The Arkansas Ordnance Plant, situated near Jacksonville, Arkansas, was one of a large number of similar plants engaged during the war, under a cost-plus-a-fixed-fee contract, in the processing and assembling of ammunition for the United States, all supervised by the Ordnance Division of the War Department, and under the management of various corporations, in the present case the defendant, Ford, Bacon & Davis, Inc.

The plaintiffs² bottomed their action on the ground that they were engaged in the production of goods for commerce, within the meaning of Section 207 of the Act; no contention was made that they were engaged in commerce. The action as to all of them was defended on the ground that they were not engaged in the production of goods for commerce, and hence not covered by the Act; and as to all of them except Barksdale it was further contended that they were employed in bona fide executive or administrative capacities and hence exempt from the provisions of the Act. In the case of Barksdale, the defendant admitted that he was not an administrative employee, nor employed in a bona fide executive capacity since his hours of work of the same nature as that performed by those under him exceeded twenty per cent.

The issue of fact with respect to the contention that all of the plaintiffs except Barksdale were exempt employees was submitted to a jury, the Court reserving its decision on the question of coverage. A verdict was rendered for the defendant, thereby disposing of the case as to all of the plaintiffs except Barksdale. His case has now been submitted to the Court without the intervention of a jury, and the Court, based on the defendant's admission above referred to and evidence which is virtually undisputed, has made and filed herein its findings of fact. The findings pertinent to this opinion are:

Findings of Fact

1. * * *

6. The Arkansas Ordnance Plant was an ordnance facility owned by the United States Government. It was constructed during the war for the production of munitions such as detonators, percussion elements, artillery primers, fuzes, boosters, and powder train fuzes, for use by the Government in the prosecution of the war.

7. The United States, by written contract, retained the defendant, Ford, Bacon & Davis, Inc., to recruit labor and other personnel for and to manage the operation of the Ordnance Plant. The defendant was paid a fixed fee for this service, and the Government paid all expenses of operation, including the cost of labor and materials.

8. At all times involved in the complaint, the premises upon which plaintiff was employed, the tools and equipment which he and all others working on the premises were using in their employment, and the property and products with which they dealt in such employment were all the property of and belonged to the United States.

9. The component parts of the detonators, percussion elements, artillery primers, fuzes, boosters, powder train fuzes, and other products with which employees at the plant dealt were shipped to the plant as the property of the United States "for military use," and title to and possession thereof remained in the United States during all times relevant hereto.

10. The finished products of said plant were the property of the United States and were by it shipped under Government bills of lading to military facilities without the State of Arkansas for use by the armed forces of the United States in the war with Germany, Italy, Japan, and other nations. Some shipments went directly overseas, and others went to military facilities located within the United States.

11. The defendant at no time had title to the finished products of the plant, and at no time had title to any of the component parts of such products, or of the materials, supplies, machinery, equipment, or other property used in connection with the contract, title thereto and possession thereof being at all times in the United States and subject to its sole control.

12. The Government did not purchase munitions from the defendant.

13. The defendant did not sell munitions to the Government or to any other party.

14. No munitions or other products were manufactured or processed at the Arkansas Ordnance Plant except from materials belonging to the Government, and all such munitions and other products were by the Government used in the prosecution of the war.

15. The United States furnished and shipped to the Arkansas Ordnance Plant approximately 95% of all materials, supplies, machinery, equipment, and other property used in connection with the contract for operation of the Arkansas Ordnance Plant. Title to the remainder of the materials, supplies, machinery, equipment, or other property, which were purchased after approval by the Government through the agency of the defendant, vested in the United States at their points of origin, and they were shipped to the Arkansas Ordnance Plant on Government bills of lading, marked "Government property for military use."

16. A Government Finance Officer in Washington, D. C., paid the freight on such bills of lading.

17. The United States had title to and possession of all materials, supplies, machinery, equipment, and other property used in connection with the contract for operation of the Arkansas Ordnance Plant at all times relevant hereto.

18. The United States maintained an Accountable Property Officer to be accountable for all property used in connection with the contract between the Government and the defendant.

19. Prior to the time the plant actually began operating the United States advanced to the defendant a large sum of money to defray anticipated operating expenses. As money was withdrawn from this fund it was replenished by the Government. The defendant was not required to use any of its own money in carrying out its contract with the Government.

20. The Government contracted for electric power, and telephone, telegraph, and teletype service at the plant, and paid such bills directly. The defendant was appointed an agent of the Government for the purpose of causing official business messages to be transmitted.

21. The plant was under the direct control and supervision of the Chief of Ordnance, United States Army. A Commanding Officer appointed by the Chief of Ordnance was on duty at the Arkansas Ordnance Plant at all times relevant hereto, and exercised full and complete control over the property and the installations thereon.

22. The United States had exclusive jurisdiction over the premises embracing the Arkansas Ordnance Plant.

23. The Government retained the right to approve or disapprove the employment of all personnel and exercised this right.

24. The Government approved all wage and salary rates, and all promotions or other changes of status of employees were required to be approved in advance by the Government.

25. All munitions manufactured or processed at the plant were manufactured or processed under the direct supervision and control of the Government.

26. The Government specified the manufacturing processes to be used. It directed the type and quantity of munitions, the specifications thereof, and the rate of production. Inspections were made by the Government during each step of their manufacture or processing. Detailed rules and regulations governing safety and methods of production were promulgated by the Government. The defendant was required to comply with these rules and regulations, and Government-paid employees were present to report on compliance.

27. The Government, from time to time, sent to the defendant production schedules directing the defendant to produce munitions of certain designated specifications. The defendant was required to meet these schedules. It had no discretion as to the type of munitions to be made, the quantity thereof, or the method or process used in their manufacture, and the defendant produced no munitions except as required by Government directive.

28. On occasion the Government transferred production schedules from other ordnance plants to the Arkansas Ordnance Plant for completion. In such cases, if the original plant had made any contracts for materials and supplies on account of such schedules, the defendant was required to take over such supply contracts and to pay the vendors in accordance therewith from Government funds.

29. The defendant was not penalized if the materials manufactured or processed at the plant did not meet specifications and could not be used. Under the contract between the defendant and the Government, the defendant was allowed all costs of reworking rejected munitions and all costs of material finally rejected.

30. Of the direct materials used in the manufacture of munitions, the Government furnished materials of the approximate value of $275,768,000, and the defendant purchased and paid for with Government money materials of the approximate value of $9,574,602.34.

31. The purchase of materials, supplies, machinery, tools, equipment, or other property acquired through the agency of the defendant was first approved by the Government. The Government took title to such goods at their points of origin, and the goods were shipped on Government bills of lading to the...