Cabunac v. National Terminals Corporation

• Decision Date: 28 January 1944
• Docket Number: No. 8359.,8359.
• Citation: 139 F.2d 853
• Parties: CABUNAC et al. v. NATIONAL TERMINALS CORPORATION.
• Court: U.S. Court of Appeals — Seventh Circuit

139 F.2d 853 (1944)

CABUNAC et al. v. NATIONAL TERMINALS CORPORATION.

No. 8359.

Circuit Court of Appeals, Seventh Circuit.

January 28, 1944.

J. G. Hardgrove and Leon F. Foley, both of Milwaukee, Wis. (Miller, Mack & Fairchild, of Milwaukee, Wis., of counsel), for appellant.

A. W. Richter, of Milwaukee, Wis., for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

This is an action brought under Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), for overtime compensation, liquidated damages, and attorney fees.

Plaintiffs-appellees during the times in question were all members of Local 815, International Longshoremen's Association, their certified collective bargaining agent, and were employed on an hourly basis by the defendant-appellant as warehousemen and stevedores. Defendant, a Delaware corporation licensed to do business in Wisconsin, was engaged in the business of handling and storing merchandise transported by ships upon the Great Lakes. It is conceded that these activities were in interstate commerce.

Plaintiffs claim that they failed to receive the full amount of overtime compensation required to be paid them by Section 7 of the Act, 29 U.S.C.A. § 207. Subsection (a) of that Section requires employers engaged in or producing goods for interstate commerce to pay overtime at the rate of one and one-half times the "regular rate" of pay for all hours worked per week in excess of 44 during the first year, 42 during the second year, and 40 during the third year after the effective date of the Act.

Defendant does not deny that the plaintiffs worked longer than those maximum hours per week but claims exemption under subsection (b) of Section 7 which reads as follows:

"(b) No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of that specified in such subsection without paying the compensation for overtime employment prescribed therein if such employee is so employed —

"(1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than one thousand hours during any period of twenty-six consecutive weeks, * * * and if such employee receives compensation for employment in excess of 12 hours in any workday, or for employment in excess of 56 hours in any workweek, as the case may be, at a rate not less than one and one-half times the regular rate at which he is employed."

Six contracts between the union and the defendant covered the period between the effective date of the Act and the bringing of this action on December 22, 1941. Three contracts covered stevedoring and three warehouse employment. In only two of the stevedoring contracts was there any reference to the one thousand hour provision of the Fair Labor Standards Act quoted above. Since the provisions of these two contracts are similar, only one need be set forth. The stevedoring contract dated April 15, 1940, read as follows: "J. It is further mutually agreed by both parties to this agreement that working conditions, hours and wages will be as provided in Section 7-B-1 of Fair Labor Standards Act of 1938, which provides that no employe shall be employed more than 1000 hours, nor more than 56 hours in any one week, during period of 26 consecutive weeks, commencing with effective date of this agreement. Both parties agree to extension of a second period after completion of first period. It being further understood and agreed that the Employer shall have the right to suspend the employment of any men during any week in which they have worked the maximum of 56 hours as provided in said Fair Labor Standards Act of 1938."

It will be noted that instead of providing for "any...