Carter v. PANAMA CANAL COMPANY

• Decision Date: 20 May 1970
• Docket Number: Civ. A. No. 1890-68.
• Citation: 314 F. Supp. 386
• Parties: Wade V. CARTER et al., Plaintiffs, v. PANAMA CANAL COMPANY, Defendant.
• Court: U.S. District Court — District of Columbia

314 F. Supp. 386

Wade V. CARTER et al., Plaintiffs, v. PANAMA CANAL COMPANY, Defendant.

Civ. A. No. 1890-68.

United States District Court, District of Columbia.

May 20, 1970.

A. Fred Freedman, Washington, D. C., Abraham E. Freedman, and Stanley B. Gruber, New York City, for plaintiffs.

Thomas J. Lydon, and Robert R. Donlan, of the Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM AND ORDER

CORCORAN, District Judge.

I.

The plaintiffs are towing locomotive operators employed by the defendant Panama Canal Company in the Canal Zone. They seek overtime pay of at least 15 minutes per day of allegedly compensable work computed in accordance with 5 U.S.C. § 5544 for all time spent performing the activity in question since Juy 29, 1965.

The defendant Panama Canal Company is a federally chartered corporation of the United States and is subject to suit in the United States District Court for the District of Columbia pursuant to 2 Canal Zone Code §§ 61(c) and 65(a) (3).

II.

To transit the Panama Canal a vessel must pass through three lockage areas, i. e., Pedro Miguel and Miraflores on the Pacific side, and Gatun on the Atlantic side. Each plaintiff works at one of the three areas on an eight hour shift.

The plaintiffs operate electrically-driven towing locomotives to pull ships through the locks and to control the lateral movement of the ships within the lock chambers. The locomotives move on each side of a lock chamber and travel the full length of the chamber wall.

At the end of any given work period the operator leaves his locomotive where it then is. That requires the succeeding operator to proceed to that point to assume his duties since historically the duty station of an operator has always been the locomotive to which he is assigned. However, prior to reporting to the lock area the operator knows neither the identity nor the location of the locomotive to which he is assigned for that particular work period. To learn the location and the identity of the locomotive to which he is assigned the operator must check at a lockage assignment board located within the lock area, put a mark by his name on the board, and walk to the designated locomotive.

At Gatun the assignment board is about 75 feet from the main gate; at Pedro Miguel the assignment board is within 25 feet of the main gate; and at Miraflores the board is located in the control house some 500 feet from the main gate.

The time consumed by an operator in walking from the lockage assignment board to his assigned locomotive varies from 2 minutes to 15 minutes per day depending upon the location of his assigned locomotive. The average time is 8 minutes.

There is no requirement that an operator report to the assignment board. The only requirement is that he report to his duty station (his locomotive) by the time his shift begins. However, since the assigned locomotive may be located the maximum distance from the assignment board, the operator of necessity must check the board at least 15 minutes before the start of his eight hour shift to arrive at his locomotive on time.

During the period an operator is on defendant's premises prior to reaching his duty station he is subject to defendant's rules and regulations governing employees and may be disciplined for violation of those rules.¹

Prior to January 1, 1968, locomotive operators were required to check in and out with a timekeeper at the main gate of the lock area merely for the purpose of determining their presence in the lock area, not for the purpose of time-keeping.

For a long period prior to the commencement of this case (and at least prior to July 29, 1965) the locomotive operators and their representatives, including National Maritime Union of America, AFL-CIO, have requested the Canal Company to pay overtime for the time spent between checking the assignment board and reaching the locomotives as well as the additional time spent, prior to January 1, 1968, in checking in with the timekeeper and walking to the assignment board. The Company has rejected all formal and informal claims for this overtime compensation.

The question before the Court is whether the activity of the plaintiffs in checking the assignment board and walking to their duty stations constitutes compensable overtime work. For the reasons listed below the Court concludes that it does not.

III.

The plaintiffs rely on 5 U.S.C. § 5544,² the Federal Employees Pay Act, and the cases interpreting its application.³ However, the Federal Employees Pay Act simply grants employees the right under certain conditions to compensation for overtime work. It does not fully set out the standards as to what constitutes compensable overtime. To determine the standards and the types of activity that fall within the standards (and are thereby compensable as overtime) the Court must look to the Fair Labor Standards Act, 29 U.S.C. § 217 et seq., as amended.

The so-called Morse Amendment to that Act, 29 U.S.C. § 218(b), specifically made the Act's wage requirements applicable to all wage board employees of the Panama Canal Company. The Amendment provides that:

"(b) Notwithstanding any other provision of this chapter (other than section 213(f) of this title) or any other law—

(1) any Federal employee in the Canal Zone engaged in employment of the kind described in section 5102 (c) (7) of Title 5, or (2) any employee in a non-appropriated fund instrumentality under the jurisdiction of the Armed Forces, shall have his basic compensation fixed or adjusted at a wage rate that is not less than the appropriate wage rate provided for in section 206(a) (1) of this title (except that the wage rate provided for in section 206 (b) of this title shall apply to any employee who performed services during the workweek in a work place within the Canal Zone), and shall have his overtime compensation set at an hourly rate not less than the overtime rate provided for in section 207(a) (1) of this title."

The Portal to Portal Pay Act, 29 U.S. C. §§ 251-262, also amending the Fair Labor Standards Act, dealt specifically with the right to overtime compensation and it is to this act that the Court looks for guidance. The Portal to Portal Pay Act reads in pertinent part:

"(a) Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947—

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

"(b) Notwithstanding the provisions of subsection (a) of this section which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by either—

(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or

(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer." 29 U.S.C. § 254.

The plaintiffs rely heavily upon Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) in which the Supreme Court addressed itself to the problem of what constitutes compensable activity. That case held that "the time necessarily spent by the employees in walking to work on the employer's premises, following the punching of time clocks, was working time within the scope of the Fair Labor Standards Act." Id. at 691, 66 S.Ct. at 1194.

In the Mt. Clemens case the employees spent 2 to 12 minutes walking on the premises. This time was under the complete control of the employer since it depended solely upon the physical arrangements of his plant. Such walking was for the benefit of the employer to enable him to achieve his productive aims, and it was in no way related to the convenience and necessity of the employee. The Court distinguished this walking time from the time spent in traveling from the employee's home to work and concluded that:

"The time spent in walking to work on the employer's premises, after the time clocks were punched, involved `physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.' Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949, Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 164-166, 65 S.Ct. 1063, 89 L.Ed. 1534. Work of that character must be included in the statutory work week and compensated accordingly * * *." Id. at 691-692, 66 S.Ct. at 1194.

The Court also held that time necessarily spent by employees in preliminary activities after arriving at their places of work must be included within the work week and compensated accordingly. Id. at 692-693, 66 S.Ct. 1187.

However, in both of the situations noted above the Court said it would be appropriate to apply a de minimis rule "where the minimum walking time is such as to be negligible" or when the...