Ciemnoczolowski v. QO ORDNANCE CORPORATION

• Decision Date: 10 February 1956
• Docket Number: No. 15186,15187.,15186
• Parties: Frank A. CIEMNOCZOLOWSKI, Ray Winfrey, Connie Merchant, Loren R. Garst, individually and as agents and representatives to maintain this action for and on behalf of all employees similarly situated, Appellants, v. The Q. O. ORDNANCE CORPORATION, Appellee. Joseph P. DUNNING, Ernest Bingham, O. Q. Gaines, John H. Sievers et al., individually and as agents and representatives to maintain this action for and on behalf of all employees similarly situated, Appellants, v. The Q. O. ORDNANCE CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

228 F.2d 929 (1955)

Frank A. CIEMNOCZOLOWSKI, Ray Winfrey, Connie Merchant, Loren R. Garst, individually and as agents and representatives to maintain this action for and on behalf of all employees similarly situated, Appellants, v. The Q. O. ORDNANCE CORPORATION, Appellee.

Joseph P. DUNNING, Ernest Bingham, O. Q. Gaines, John H. Sievers et al., individually and as agents and representatives to maintain this action for and on behalf of all employees similarly situated, Appellants, v. The Q. O. ORDNANCE CORPORATION, Appellee.

Nos. 15186, 15187.

United States Court of Appeals Eighth Circuit.

April 29, 1955.

Rehearing Denied June 27, 1955.

Rehearing Granted February 10, 1956.^*

Charles W. Hess, Jr., Kansas City, Mo. (Thomas W. Lanigan, Grand Island, Neb., Guy A. Magruder, Jr., Arthur N. Nystrom and Terrell & Taylor, Kansas City, Mo., were with him on the brief), for appellants.

Leo Eisenstatt, Omaha, Neb. (G. L. DeLacy, Omaha, Neb., was with him on the brief), for appellee.

Before SANBORN, COLLET and VAN OOSTERHOUT, Circuit Judges.

Rehearing Denied in No. 15186 June 27, 1955.

Rehearing Granted in No. 15187 February 10, 1956.^*

COLLET, Circuit Judge.

Two separate actions were instituted in 1945 in the United States District Court for Nebraska to recover compensation under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., for time allegedly devoted by plaintiffs to defendant's work and for which the plaintiffs were not compensated. The cases were consolidated. The trial was by the court without a jury. After entering detailed findings of fact the trial court entered judgment for the defendant. The principal question involved on this appeal is whether the findings supporting the judgment are clearly erroneous.

Defendant was engaged in the operation of a large Ordnance plant for the United States Government at Grand Island, Nebraska, in the production of explosives, bombs and T.N.T. for use in the prosecution of World War II. Plaintiffs were employed by defendant as guards, matrons, firemen, workmen in the production line processing explosive materials and loading bombs, called powder line operators, production inspectors, safety inspectors and area maintenance men.¹

The guards, including matrons, are claiming compensation for time spent on defendant's premises after their guard shift was over while waiting for drill or pistol practice. For a portion of the period of employment this waiting time was 30 minutes. Later it was reduced to 15 minutes. Still later it was eliminated entirely. The trial court found that during this waiting period the guards were completely off duty, that the periods constituted "preliminary" and "postliminary" activities for which there was neither a contract nor a custon for payment under the Portal-to-Portal Act. 29 U.S.C.A. § 251 et seq.

The firemen are claiming compensation for two, three and five hour periods periodically occurring when they were required to be on duty during what they claim was their sleeping period. During the period in controversy the firemen were working on the two platoon system. That is, they were on duty for 24 hours and off duty 24 hours. The 24 hour duty period was divided into 8 hours regular duty, 8 hours recreation and 8 hours sleeping time. They were paid for the 8 hour sleeping period. They claim, as indicated, that their sleeping time was interrupted when they were required to stand watch "on the floor or at the P.B.X. switchboards" for periods varying from two to five hours. The trial court found that when that occurred, they were allowed an additional sleeping period equal to the time such sleeping periods were interrupted.

The production line operators which are referred to in Plaintiffs' brief as "Powder Line Operators," and production inspectors are claiming compensation for a forty-five minute period occurring every shift, which time was devoted to removing their clothing at the beginning of the shift and donning their working clothes, and removing their working clothes, taking a shower bath, and dressing in their street clothes at the end of the shift. The trial court found that this time was spent in "preliminary" and "postliminary" operations for which there was neither a contract nor a custom for payment under the Portal-to-Portal Act.

We need not reiterate in detail that if, as plaintiffs contend, all of these periods of time constituted an integral part of their principal duties they are entitled to recover compensation therefor without meeting the requirements of the Portal-to-Portal Act by proving a special contract under which they were to be compensated for these periods or a custom or practice under which compensation was made therefor. Central Missouri Telephone Co. v. Conwell, 8 Cir., 170 F.2d 641. Martin-Nebraska Co. v. Culkin, 8 Cir., 197 F.2d 981.

We find no justification in the record for holding clearly erroneous the trial court's findings that the guards and matrons were off duty during their waiting period and that the guards' and matrons' waiting periods were preliminary and postliminary for which there was neither a contract nor a custom under which they were to be paid.

Nor is there justification for overturning the finding that the firemen were given additional sleeping periods equaling the time their regular sleeping periods were interrupted.

We pass without unnecessary discussion of the evidence the foregoing questions to the central question of whether the trial court's finding that the powder line workers were not engaging in an integral part of their principal duties during the forty-five minute period was clearly erroneous.

As plaintiffs aptly state in their brief — "The basic issue on this point is whether or not the clothes changing and showering activities were part of the principal activities which these workers were employed to perform."

The powder line workers who engaged in melting, pouring and processing explosives were required to change their clothes and take a shower after their shift. They were required to change their clothes as a safety precaution against explosions which might be caused from sparks from metallic objects on or in conventional clothing. They were required to take a shower as a safety measure for the employee's own health to avoid after effects of powder remaining on the person of the employee.

These plaintiffs contend that because they were required for those reasons to devote this period of time to those purposes, that the time so devoted was time spent in a necessary part of their principal duties. The argument is made to the effect that since it was undisputed that they were required to do these things, they were necessarily an integral part of their principal duties and the trial court's finding that these activities were preliminary and postliminary must be held to be clearly erroneous as contrary to the undisputed evidence or as based on a misconception of the law. Steiner v. Mitchell, 6 Cir., 215 F.2d 171, is relied upon to support that position.

The factual situation in Steiner v. Mitchell appears to be similar in many respects to the facts here. In Steiner v. Mitchell the question was whether the changing of clothes, and taking a shower at the end of the working day, was a part of the employees' "principal activity." The trial court had found that these activities were so necessary to and such an integral part of the principal activity of manufacturing storage batteries as to constitute a part of the principal activity.

It appears that this finding was based to a large extent upon the fact that the activities were necessary for the protection of the health of the employees and required by the employer.

We do not understand however, that the import of Steiner v. Mitchell is that those facts would compel the conclusion that in every case where the changing of clothes was required as a protection to the health of the employees the activity was a part of the principal activity if other cogent facts were present which prevented a finding that the greater weight of the evidence established the hypothesis that the activities in question were principal activities.

It is pointed out in Steiner v. Mitchell, 215 F.2d at page 172 that the great variety of industrial conditions and various types...