Bicanic v. J. C. Campbell Co.

• Decision Date: 25 May 1945
• Docket Number: No. 34005.,34005.
• Citation: 220 Minn. 107,19 N.W.2d 7
• Parties: BICANIC et al. v. J. C. CAMPBELL CO.
• Court: Minnesota Supreme Court

19 N.W.2d 7

220 Minn. 107

BICANIC et al. v. J. C. CAMPBELL CO.

No. 34005.

Supreme Court of Minnesota.

May 25, 1945.

Appeal from District Court, St. Louis County; Edward Freeman, Judge.

Action by William V. Bicanic and others against J. C. Campbell Company to recover overtime compensation under the Fair Labor Standards Act. From an order denying a new trial, the plaintiffs appeal.

Affirmed.

M. H. Greenberg, of Eveleth, and Henry Paull, of Duluth, for appellants.

McCabe, Gruber & Clure and H. G. Gearhart, all of Duluth, for respondent.

MATSON, Justice.

Plaintiffs appeal from an order denying a new trial in an action brought to recover overtime compensation under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Judge Fesler, before whom the case was tried, became incapacitated before he could make his decision therein, and upon stipulation the matter was submitted upon a transcript of testimony to Judge Freeman, who made findings of fact and conclusions of law to the effect that (1) the plaintiffs and the defendant were engaged in the production of goods for commerce within the meaning of said act, and that (2) none of the plaintiffs had worked hours in excess of the time for which they had already been paid. The sole issue upon appeal involves the question of whether there was unpaid overtime.

Plaintiffs were employed by defendant either as cook, cookee, or bull cook in its logging camps operated for the cutting, skidding, peeling, loading, and hauling of pulpwood and logs. The camp cook prepared all three meals, inclusive of lunches carried by the men to work and those eaten in camp between meals, cut the meat, did all the baking, took care of the food, and generally supervised the kitchen and all eating facilities. The cookees set and cleared the tables, washed and put away the dishes and cooking utensils, and otherwise assisted the cook as needed. The bull cooks supplied wood and water for the entire camp, built fires in the bunkhouses, took care of the lamps, swept and scrubbed the bunkhouses, and performed other janitorial duties. In a few instances, as found by the court, a cook was independently employed and paid by certain shackers who were cutting pulpwood for defendant but who neither stayed nor ate any meals at defendant's camps.

The trial court, as part of its findings, found:

"7. That during all of the time these various plaintiffs worked for the defendant they were working under a contract between the employer and the union to which they belonged, which provided the rate of pay that they should receive per hour and the number of hours available to them to work. That the terms of the contract were known to all of the plaintiffs. That they were paid on the basis of the hours available, both straight time and overtime, and the rate of wages fixed in the contract was not in any case below the minimum to be paid according to the provisions of the Fair Labor Standards Act.

"That except in rare instances they were able to perform their work in the hours available. That in all instances where they were unable to do their work in the hours available and brought that fact to the attention of the defendant, they were allowed additional hours to take care of the extra time put in. That a period of two or more hours each day was available to the cooks, during which time they could do as they pleased and were not required to be on duty or on call and could not be subject to rebuke or criticism if they were not available in case some emergency arose. That longer periods of time were available to the cookees and bullcooks when they were on their own and could do as they pleased without fear of just criticism or rebuke." (Italics supplied.)

A careful examination of the record shows a sharp and definite conflict of testimony between that of the plaintiffs and their witnesses and that of the defendant's witnesses. Plaintiffs contend that they actually worked more hours per day than the number of hours available under the union contract, and that they were not paid for this extra time. Defendant, in denying this contention, alleges that plaintiffs' work was all performed within the hours available, except in a few cases when the plaintiffs, upon request, were allowed necessary additional paid hours. Plaintiffs allege, however, that with a few exceptions it was useless to ask for additional paid hours, because defendant's representatives asserted that payment could be made only on the basis of the contract hours available regardless of the hours worked. Plaintiffs further contend that they were uncertain as to their rights until the decision in Hanson v. Lagerstrom, 8 Cir., 133 F.2d 120, established definitely that as employees they were entitled to the benefits of the Fair Labor Standards Act. Concretely, 12 contract hours were in most instances available to the cooks, who asserted that their work actually required 14 hours per day. The gist of the whole dispute settles around the question as to whether or not the cooks, as well as the cookees and bull cooks, enjoyed each day two or more free hours when they had no work and were left to their own devices. Plaintiffs assert that their work required all of 14 hours and that, regardless of whether they were at all times occupied in actual work, they were, nevertheless, required to be on actual duty subject to call, and that therefore the entire 14-hour period, even though a part thereof might be spent in idleness or recreation, constituted working time compensable under the maximum hours and overtime provisions of the Fair Labor Standards Act. Testimony adduced by defendant was to the effect that plaintiffs enjoyed two or more hours each day when they were not on duty and not subject to call, and that they were free to leave the premises to go fishing, visiting, and otherwise to enjoy and dispose of such free time as they saw fit without restriction.

The union contract which had been in force for a considerable time and which had been negotiated between the plaintiffs' union and the Timber Producers Association, of which defendant is a member, established a sliding scale of hours to be made available to each employee according to the number of men served, and this contract also provided a definite procedure for the settlement of grievances. There was considerable evidence that all employees were familiar with its provisions. Defendant has contended by testimony and argument that the contract was based on a mutual understanding and a recognition of the hours required to perform the work as determined by logging-camp experience and custom of many years' standing. This plaintiffs denied, by contending that the contract was merely a device for paying the men a sum equivalent to the former monthly wages (as paid before the plaintiffs were ruled to be under the Wage and Hour Act) "based on the hours of work made available and not the hours actually worked." The evidence as a whole stands in conflict and is reasonably subject to diverse inferences. A detailed analysis and restatement of the evidence will serve no useful purpose. As already indicated, the trial court's findings were expressly in favor of defendant's contention as to the number of hours plaintiffs were on duty.

1. Plaintiffs assert that the trial court, by the memorandum accompanying its findings, indicated that it had applied the wrong test in making its decision by assuming that plaintiffs were entitled to pay merely for hours spent in actual work and not for the additional hours when the plaintiffs, although not actually working, were required to be on the job and subject to call. Regardless of the interpretation placed on the language of the trial court's memorandum, it is well established by prior decisions of this court that a memorandum of a trial judge attached to his findings or order, even though expressly made a part of such findings or order, may not be used to impeach, contradict, overturn, or modify the positive and unambiguous terms of such findings or order.¹ Here, the trial court in its findings in clear and explicit language found that plaintiffs enjoyed two or more free hours each...