Cherup v. Pittsburgh Plate Glass Company

• Decision Date: 07 November 1972
• Docket Number: Civ. A. No. 1565-W.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: John R. CHERUP et al., Plaintiffs, v. PITTSBURGH PLATE GLASS COMPANY, a corporation, Defendant.

350 F. Supp. 386

John R. CHERUP et al., Plaintiffs, v. PITTSBURGH PLATE GLASS COMPANY, a corporation, Defendant.

Civ. A. No. 1565-W.

United States District Court, N. D. West Virginia.

November 7, 1972.

John T. Madden, Madden & Hughes, Moundsville, W. Va., for plaintiffs.

Oscar J. Andre, Steptoe & Johnson, Clarksburg, W. Va., for defendant.

MAXWELL, Chief Judge.

Pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended, 214 employees of Pittsburgh Plate Glass Company instituted this civil action against their employer for the recovery of unpaid overtime compensation, an equal amount as liquidated damages, interest, court costs and attorney fees.

Each plaintiff is employed by defendant as a shift worker in one of the various departments of the Chemical Division of defendant's Natrium Plant which is located in this judicial district near the community of Natrium in Marshall County, West Virginia.

Defendant is a Pennsylvania corporation authorized to do business in the State of West Virginia. Its Natrium Plant is a three-shift, twenty-four hour continuous process operation engaged in the manufacture of heavy chemicals. The three shifts at the Natrium Plant were established by labor contract to run from 7:00 o'clock a. m. to 3:00 o'clock p. m., from 3:00 o'clock p. m. to 11:00 o'clock p. m., and from 11:00 o'clock p. m. to 7:00 o'clock a. m.

It has been stipulated that the plaintiffs and defendant corporation are within the respective definitions of employee and employer as set forth in § 3 of the Act, 29 U.S.C. § 203; that the defendant corporation was engaged in commerce within the meaning of the Act; and that this Court has jurisdiction of this matter by virtue of 28 U.S. C. § 1337. It was further stipulated that each plaintiff was either a member of the International Chemical Workers Union, AFL-CIO, from June 7, 1963 to February 28, 1964, or a member of Local 45 of the International Chemical Workers from February 28, 1964 to June 7, 1965, the recognized collective bargaining agents for the time important to this litigation.

More specifically, plaintiffs contend that they are entitled to overtime compensation at the rate of one and one-half times the regular hourly wage under the provisions of § 7 of the Act, 29 U.S. C. § 207, for work performed in excess of forty hours during the period from August 9, 1963, to June 7, 1965. In their original complaint plaintiffs sought recovery for excess hours from June 7, 1963, to June 7, 1965. The Initial date was later amended to August 9, 1963. Plaintiffs allege that this excess work was the result of defendant's "suffering, and permitting, and also encouraging" the plaintiffs to clock-in as much as twenty-five minutes prior to the commencement of the shift and to report early to their working stations, and of defendant's "requiring" the plaintiffs to remain on the plant premises until the scheduled clocking-out time.

Recognizing the inherent procedural difficulties in an action which is in reality 214 individual causes of action, counsel requested the Court to rule on the primary issues of defendant's liability for compensatory damages. This ruling is based on the pleadings, selected testimony, stipulations of the parties, various exhibits, written briefs and the oral argument of counsel. Under this procedural arrangement between counsel and the Court, if liability is found, then the referral of this case to a special master for a determination of amounts due and owing each individual plaintiff was considered to be the proper and practical manner of further proceeding.

In a further attempt to fully develop and present this case, counsel for both sides have chosen fifteen plaintiffs for the purpose of eliciting testimony. This testimony is in the form of depositions and is recognized as being representative of the testimony of all plaintiffs as to the liability issue. In addition to these depositions the Court also has before it the depositions of three plant officials.

As illustrated by plaintiffs, a typical shift employee at the Natrium Plant during the time covered by this action would arrive at a designated time clock where he could punch in as much as twenty-five minutes early. The employee would then either walk or ride to a locker area, change his clothes and then report to his working station. If he was not required to change clothes and did not choose to do so, the employee reported immediately to his working station after clocking in. Once on the job the on-coming employee made the relief and assumed his regular duties.

The relieved employee, although permitted to leave his work station and to wash up and change clothes, was required to remain on the plant premises and not clock-out until the scheduled end of the shift.

Thus if a shift employee at the Natrium Plant reported to work early and worked a regular eight hour shift, he would receive eight hours pay despite the fact that his time card for that day would reflect time in excess of eight hours.

It is this extra time minus noncompensable time, time spent in traveling to the work station and in changing clothes, which forms the basis of plaintiffs' claims to overtime compensation.

Related to the claims of the 214 named plaintiffs are the additional claims of an unknown number of plaintiffs who are seeking compensation for time which they spent in changing clothes. These claims were not specifically raised in the complaint but are based on the fact that the plant required these plaintiffs to change their clothes before and after work.

The date of origin and initial purpose of the early relief practice are not exactly clear. It appears, however, that the practice went into effect near the beginning of plant operations in 1943, and that its inception was due in part to employee participation in car pools which were necessitated by the plant's rural location and by the rationing of gasoline and automobile tires during World War II.

From the commencement of the early relief practice until 1955, defendant's shift employees were allowed to clock-in twenty minutes early; after 1955 this permissible time period was extended to twenty-five minutes. Adopting one of two alternative suggestions made by an investigator from the Wage and Hour Division of the United States Department of Labor, the defendant changed its reporting procedure on June 7, 1965. Exhibit E. As an alternative to the procedure adopted, it was suggested that the company inform its shift employees that they were not to make their relief until the hour. Other than making these suggestions, the Labor Department apparently took no official action in this matter. After this date, the shift employees at the Natrium Plant were only allowed to clock-in twenty minutes early and were permitted to leave the plant premises immediately upon being relieved.

It is evident from the testimony presented that there was no plant requirement that the Natrium shift employees clock-in early. The voluntary nature of the early relief practice is also indicated by plaintiffs' time cards. These cards, filed as exhibits in this action, reveal that the time a particular employee reported early would vary within the twenty-five minute time period from day to day, and that an employee's pay was not reduced if he failed to report early. An employee reporting on the hour would still receive eight hours pay for that shift.

In resisting plaintiffs' claims, defendant asserts that it neither required the shift employees to report early nor required them to immediately relieve their fellow employees in the event they did report early. Rather, the defendant maintains that the shift employees requested the extra time for personal reasons and that it permitted the employees to report early merely as a convenience to the employees. Defendant refers the Court to the above mentioned fact that a shift employee was paid for eight hours regardless of whether he reported twenty-five minutes early or on the hour. Defendant thus concludes that it would be inequitable to find the company liable for a service which it has rendered to the employees at the employees' request.

Although recognizing that they were not officially directed or requested to report early, plaintiffs allege that they were encouraged by defendant to do so. They counter defendant's equitable argument with their own—that through its acquiescence the defendant benefited from the early relief arrangement and that any decision in the company's favor would result in its unjust enrichment.

The initial legal question in this matter asks what effect the Portal to Portal Act of 1947, 29 U.S.C. § 251 et seq., has on this litigation. In particular, 29 U. S.C. § 254 provides:

(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

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