Central Missouri Tel. Co. v. Conwell, 13756.

• Decision Date: 16 November 1948
• Docket Number: No. 13756.,13756.
• Citation: 170 F.2d 641
• Parties: CENTRAL MISSOURI TEL. CO. v. CONWELL.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F.2d 641 (1948)

CENTRAL MISSOURI TEL. CO. v. CONWELL.

No. 13756.

United States Court of Appeals, Eighth Circuit.

November 16, 1948.

COPYRIGHT MATERIAL OMITTED

John A. Morrison (of Morrison, Nugent, Berger, Hecker & Buck), of Kansas City, Mo., and John F. Baker, of Chicago, Ill., for appellant.

Robert L. Jackson, of Kansas City, Mo., for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought under the Fair Labor Standards Act, Title 29 U.S.C. A. § 201 et seq., to recover compensation for overtime. It is alleged in the complaint that the action is brought by plaintiff Lillie Conwell "as an employee of the defendant, and on behalf of Laura Pinkepank against the defendant." Two causes of action are comingled in the complaint, one in favor of Lillie Conwell and the other in favor of Laura Pinkepank. The complaint was filed January 21, 1947. The complaint alleges that from and after February 1, 1942, Lillie Conwell was employed by defendant as a night operator of the telephone exchange operated by defendant at Holden, Missouri, and that Laura Pinkepank was employed by defendant as a night operator of the telephone exchange operated by defendant at Sweet Springs, Missouri. It is then alleged that,

"From and after the date aforesaid until on or about September 1, 1946, Lillie Conwell and Laura Pinkepank, who will be hereafter referred to as plaintiffs, worked eleven (11) hours per day, six (6) days per week, each and every work week between the dates aforesaid, and that during all of said period of time the work, duties and details which they performed for and on behalf of the defendant were in interstate commerce and so closely connected to interstate commerce as to be a part thereof."

It is alleged that during the time mentioned Lillie Conwell worked a total of 2500 hours for which she was not paid time and a half for overtime, and that Laura Pinkepank worked 3000 hours for which she was not paid time and a half for overtime.

On June 23, 1947, defendant filed motion to dismiss the action on the ground that the complaint fails to state a claim against the defendant upon which relief can be granted in that it purports to be based upon the Fair Labor Standards Act as amended, whereby by virtue of a certain Act of Congress passed on May 14, 1947, known as the Portal-to-Portal Act of 1947, said action can not be maintained because the complaint fails to allege either an express provision of a written or non-written contract between employees and employer or a custom or practice in effect making the activity set forth in the complaint compensable, and further because the court does not have jurisdiction of the action by virtue of the terms of the Portal-to-Portal Act. The motion was denied and defendant then filed answer December 8, 1947. The answer admits that the parties named were employed by defendant as operators at the telephone exchanges alleged, admits that the defendant and the operators were engaged in interstate commerce, admits its corporate existence, and denies all other allegations. It further pleaded as an alternative defense that it employed plaintiffs as night operators in good faith and in reliance upon administrative regulations, orders and rulings issued and promulgated by the Wage and Hour Division of the United States Department of Labor, which constituted a bar to the action. It further alleged that the complaint fails to state a claim against defendant upon which relief can be granted on the same ground as specified in its motion to dismiss. It further pleaded that, "Plaintiffs are barred from maintaining such portion of this action as accrued more than two years prior to January 21, 1947, the date this action was instituted, by virtue of the Missouri Statute of Limitations relating to actions brought under the Fair Labor Standards Act of 1938 as amended."

The action was tried before the court without a jury and the court found all the issues in favor of the plaintiffs except that it found that defendant had acted in good faith in compensating plaintiffs and assessed only overtime compensation without liquidated damages.

Defendant, in seeking reversal of the judgment, contends that: (1) the court erred in overruling its motion to dismiss plaintiffs' complaint for failure to set forth allegations in conformity with the Portal-to-Portal Act; (2) plaintiffs failed to prove a contract, custom or practice as a basis for additional compensation; (3) plaintiffs can not recover for time spent on the employer's premises if they did not perform work, even though they were available for work; (4) plaintiffs have failed to present evidence of sufficient definiteness to establish the number of hours for which they claim they are entitled to overtime compensation; (5) Laura Pinkepank should be denied recovery for work performed prior to January 7, 1946, because she first consented to be represented by Lillie Conwell by appearing at the trial on January 7, 1948, and the two year statute of limitations of the Portal-to-Portal Act applies; (6) defendant is exonerated from liability because of its reliance in good faith upon administrative rulings and interpretations; (7) The Missouri statute of limitations prevents recovery prior to January 21, 1945.

In support of its motion to dismiss the complaint defendant contended in the trial court and the argument is here renewed, that right of recovery is dependent upon the provisions of the so-called Portal-to-Portal Act. The Portal-to-Portal Act contains provision that no employer shall be subject to any liability under the Fair Labor Standards Act, or certain other Acts not here material, in any action on account of the failure of the employer to pay an employee minimum wages or overtime compensation for or on account of any activity engaged in prior to the date of the enactment of the Act, except an activity which was compensable by "an express provision of a written or non-written 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.A. § 252, or a custom or practice in effect at the time, covering such activity, not inconsistent with a written or non-written contract.

The Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, interpreted the Fair Labor Standards Act as requiring computation in the work week of time consumed in walking to work and other preliminary activities. This was the law under this Act as construed by the Supreme Court and was the occasion for the enactment of the so-called Portal-to-Portal Act. It had the effect of clarifying the Fair Labor Standards Act and of amending it after it had been interpreted by the Supreme Court. The Portal-to-Portal Act did not purport to repeal in toto or otherwise, the Fair Labor Standards Act, but, confessedly, it modifies that Act as it had been construed in the Mt. Clemens Pottery case.

Following the approval of the Portal-to-Portal Act, the Administrator of the Wage and Hour Division of the United States Department of Labor issued an interpretative bulletin in which it is stated:

"Sponsors of the legislation in both Houses of Congress asserted that it `in no way repeals the minimum wage requirements and the overtime compensation requirements of the Fair Labor Standards Act,' that it `protects the legitmate claims' under the act, and that one of the objectives of the sponsors was to `preserve to the worker the rights he has gained under the Fair Labor Standards Act.' It would therefore appear that the Congress did not intend by the Portal Act to change the general rule that the remedial provisions of the Fair Labor Standards Act are to be given a liberal interpretation and exemptions therefrom are to be narrowly construed and limited to those who can meet the burden of showing that they come `plainly and unmistakably within the terms and spirit' of such an exemption."

The President, in his message to Congress with reference to the extent of the provisions of this Act, among other things said:

"I am confident that the purpose of the main provisions of the Act is to eliminate the immense potential liabilities which have arisen as the result of the `Portal-to-Portal' claims. It is not the purpose of the Act to permit violation of our fundamental wage and hour standards or to allow a lowering of these standards."

In the instant case there is no claim seeking to recover for time consumed in walking to work or other activities either before or after the normal working hours. Here the claim is that these employees actually worked many hours in excess of the forty hours permitted by the Fair Labor Standards Act, not for activities of a Portal-to-Portal nature, such as were involved in Anderson v. Mt. Clemens Pottery Company, supra, and we agree with the trial court that it was not the purpose of the Portal Act to destroy such claims.

Section 207 of the Fair Labor Standards Act provides that,

"No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce — * * * for a workweek longer than forty hours * * *, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

We are of the view that this provision of the Fair Labor Standards Act was neither repealed nor so modified as to make it necessary to plead, in an action to recover compensation for time actually devoted to the normal work for which the employee was employed, an express written contract or unwritten contract, or a practice or custom. Jackson v. Northwest Airlines, D.C. Minn., 76 F.Supp. 121. The court therefore had jurisdiction of the action and properly denied defendant's motion to...