Bumpus v. Remington Arms Co., 4537.

• Decision Date: 10 December 1947
• Docket Number: No. 4537.,4537.
• Citation: 74 F. Supp. 788
• Parties: BUMPUS et al. v. REMINGTON ARMS CO., Inc.
• Court: U.S. District Court — Western District of Missouri

74 F. Supp. 788

BUMPUS et al. v. REMINGTON ARMS CO., Inc.

No. 4537.

District Court, W. D. Missouri, W. D.

December 10, 1947.

Henry A. Riederer and Fred J. Freel, both of Kansas City, Mo., for plaintiffs.

Samuel W. Sawyer and Horace F. Blackwell, Jr. (of Lathrop, Crane, Sawyer, Woodson & Righter), all of Kansas City, Mo., for defendant.

REEVES, District Judge.

Supplementing the motion to dismiss the first amended complaint the defendant has added a motion to strike and also a motion for a more definite statement.

In the view now held it is only necessary to consider the motion to dismiss.

This action followed the decision in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515. The decision in that case laid the foundation for this suit and many similar suits. While this suit was pending Congress amended the Fair Labor Standards Act of 1938 by the so-called Portal-to-Portal Act of 1947, 29 U.S.C.A. §§ 216, 251 et seq. The Congress apparently sought to mitigate the damage wrought by the Mt. Clemens Pottery Co. decision, supra. The result of the enactment was that all claims and penalties, whether civil or criminal, under Section 216, Title 29 U.S.C.A., relating to the Fair Labor Standards could not be maintained or enforced in court except upon a showing that the compensation claimed was provided for by an express provision of a written or non-written contract in effect at the time of such activity or by a custom or practice likewise in effect at the time of such activity.

Pursuant to the enactment of this amendment to the Fair Labor Standards Act, the plaintiff filed an amended complaint and subsequently amended the amended complaint by interlineations. The amended complaint undertook to meet the requirements of the Portal-to-Portal Act with appropriate averments that the overtime sued for was warranted by an express provision of a written or unwritten contract, or by custom. These averments were thought to be sufficient to state a cause of action under the new legislation and to maintain the jurisdiction of the court.

The plaintiffs in their amendment by interlineation set forth: "Some of the provisions of the express contracts referred to herein * * * as follows: * * *." In the matter thus quoted it appeared definitely and clearly that it was the intention of all the parties to invoke and make applicable the provisions of the Fair Labor Standards Act of 1938. Note this language: "Insofar as the Company is concerned all employees unless specifically exempt under one of the exemptions later referred to should be considered as being subject to this Act."

It is not complained here that the plaintiffs were under any of the exemptions mentioned in the contract, and, therefore, it must be considered that the Fair Labor Standards Act governed the relations of the parties in this case. The company accepted the definitions issued by the administration with respect to the Fair Labor Standards Act as to employee-activity as follows: "Hours Worked — For the purpose of these regulations the term `hours worked' shall include all time during which an employee is required by this employer to be on duty or to be on the employer's premises or to be at a prescribed work-place."

This was followed by the following:

"`Hours Worked' will continue to be interpreted as at present, i.e., actual working time considered. * * *."

"An employee is considered to be working if he is required to be on duty."

Upon these facts it is the contention of the plaintiffs that they are entitled to overtime compensation for time used in preparing for the day's work and for time consumed incidental to the day's work at the end of the day. Plaintiffs believe that this time was compensable under the decision in Anderson v. Mt. Clemens Pottery Co., supra, and that the Portal-to-Portal Act did not take away the jurisdiction of the court. Moreover, it is contended by the plaintiffs that, if the Congress undertook to take away an accrued right, it was an invasion of the judicial prerogative and that the suit, having been filed before enactment of the law, the rights of the plaintiffs were invulnerable as against congressional action. These will be noticed.

1. The arguments that the defendant was not engaged in commerce for the reason that the products manufactured belonged to the government and were delivered to the government should be disregarded for the reason that, by clear and unequivocal contract and agreement, the defendant accepted and even invoked the application of the Fair Labor Standards Act. Moreover, there are decisions to the effect that the manufacturer of ordnance for the government under identical circumstances would be within the provisions of the interstate commerce law.

2. The second question obtruding itself is whether plaintiffs had acquired rights which became so vested that the Congress could not take them away. In the case of United States ex rel. Rodriguez v. Weekly Publications, Inc., et al., 2 Cir., 144 F.2d 186, 188, the Court of Appeals, Second Circuit, said with respect to an informer suit, where the government under a recent congressional amendment ousted the informer by its own intervention: "The relator acquired no vested right prior to the date of the amendment. His privilege of conducting the suit on behalf of the United States and sharing in the proceeds of any judgment recovered, was an award of statutory creation which, prior to final judgment, was wholly within the control of Congress." Many cases were cited in support of this proposition.

Section 216, Title 29, relating to the subject of Fair Labor Standards, purely and wholly creates a right of action and one that might be abolished or annulled at the will of Congress.

3. Another question much mooted but clearly decided by an unbroken line of authorities, is whether the Congress would have a right to withdraw from the district...