Ciemnoczolowski v. QO Ordnance Corp.

• Decision Date: 24 March 1954
• Docket Number: 133.,Civ. A. No. 111
• Parties: CIEMNOCZOLOWSKI et al. v. Q. O. ORDNANCE CORP. DUNNING et al. v. Q. O. ORDNANCE CORP.
• Court: U.S. District Court — District of Nebraska

119 F. Supp. 793

CIEMNOCZOLOWSKI et al. v. Q. O. ORDNANCE CORP.

DUNNING et al. v. Q. O. ORDNANCE CORP.

Civ. A. Nos. 111, 133.

United States District Court, D. Nebraska, Grand Island Division.

March 24, 1954.

COPYRIGHT MATERIAL OMITTED

Thomas W. Lanigan, Grand Island, Neb., and Charles W. Hess, Jr., of the law firm of Terrell & Taylor, Kansas City, Mo., for plaintiffs.

George L. DeLacy and Leo Eisenstatt, of the firm of Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for defendant.

DONOHOE, Chief Judge.

These actions were instituted by plaintiffs against the Q. O. Ordnance Corporation of Grand Island to recover statutory compensation under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 201 et seq. Since there were many common questions of law and fact, the cases were consolidated for trial. Rule 42(a), Fed.Rules of Civ. Proc., 28 U.S.C.A. Case No. 111 was instituted by Frank A. Ciemnoczolowski on behalf of himself and all guards, guard matrons and firemen similarly situated. Case No. 133 was instituted by Joseph Dunning on behalf of himself and all line production workers, line inspectors, safety inspectors and area maintenance workers similarly situated. The defendant moved to dismiss these actions with respect to all plaintiffs not named in the caption of the complaints because as to them the actions were not "commenced" within the time limitations placed upon such actions by the Portal-to-Portal Act.¹ An action is "commenced" with respect to any plaintiff if within the time allowed (1) the person is specifically named as a party plaintiff, or (2) his written consent to become a party plaintiff is filed in the case. The court is of the opinion that all plaintiffs were specifically named within the time allowed because their names appear on a schedule which was attached to, and by reference made a part of, the original and amended complaints. Gibbons v. Equitable Life Assurance Society of United States, 2 Cir., 1948, 173 F.2d 337; Culkin v. Glenn L. Martin Nebraska Co., D. C.Neb. 1951, 97 F.Supp. 661, affirmed, 8 Cir., 197 F.2d 981.

The case was tried to the court and after careful consideration of the legally admissible evidence adduced at the trial, the court, in keeping with Rule 52(a), Fed.Rules Civ.Proc. 28 U.S.C.A., makes the following special

Findings of Fact.

In the spring of 1942, the United States erected the Cornhusker bomb and shell loading plant on the outskirts of Grand Island, Nebraska. The plant area, comprising some twenty square miles, and the buildings thereon, were at all times material to this action owned by the United States. On February 27, 1942, the United States entered into an agreement with the defendant, the Q. O. Ordnance Corporation, a Delaware Corporation, relating to the operation of the Cornhusker plant. Pursuant to this² and two additional agreements³ the Ordnance Corporation undertook operation of the plant and bombs and shells were loaded on a twenty-four hour basis for use by the United States in the conduct of World War II. The finished products were shipped in interstate commerce to points outside the state of Nebraska. Actual production, i. e. pouring explosives into shells, did not commence until November 11, 1942. However, materials used in production, were shipped into Nebraska, via interstate commerce, and were received and stored at the Cornhusker plant prior to that date.

The defendant, in carrying out the contracts employed the plaintiffs herein as guards (including matrons), firemen, line operators, production inspectors, safety inspectors and area maintenance men.

1. Guards.

From the time the first guards were hired on March 21, 1942, until May 10, 1942, the guards were paid on an eight hours per day basis. Three or four guards began their duties on March 21, 1942, guarding a warehouse in the Safeway Building in Grand Island, Nebraska. Guards were later placed on duty at defendant's office in Grand Island. In April, when construction of the Cornhusker Ordnance Plant commenced approximately five miles from Grand Island, guards were assigned duty there. During the week beginning April 9, 1942, classes for some of the guards were commenced in Grand Island. The guards attending them were paid eight hours' time per day unless their time cards showed otherwise. Until May 3, 1942, each guard reported directly to his post at the start of his shift. From May 3, 1942, until May 10, 1942, the guards, except those attending classes, were required to report to the Safeway Building in Grand Island for roll call and assignment to posts at the start of each shift. They then went to their posts in time for the shift start. The shifts were eight hours and began at 7:00 a. m., 3:00 p. m., and 11:00 p. m. During the period from March 21, 1942, until May 10, 1942, the guards had no uniforms, carried no arms and did not punch a time clock. Each guard kept his own time on forms provided by the defendant; and the guards turned these forms in each Saturday. No guard turned in time for, nor was any guard paid for, reporting for roll call and assignment prior to going to his post at the start of the shift during the week of May 3 to May 10, 1942.

On or about May 10, 1942, time allowance was increased from 8 to 8½ hours per shift, and the shifts were changed to the following:

Shift No. 1 — 10:30 p. m. to 7:00 a. m Shift No. 2 — 6:30 a. m. to 3:00 p. m Shift No. 3 — 2:30 p. m. to 11:00 p. m.

From May 10, 1942, until October 31, 1942, the guards were paid on the basis of 8½ hours per shift. From May 10, 1942, to May 31, 1942, the guards reported to the Safeway Building in Grand Island at the beginning of the shift for roll call and assignment and then proceeded to their posts. On May 31, 1942, a temporary guard headquarters, which contained a time clock, was established in an abandoned farm house on the edge of the plant area. Thereupon all guards working in the plant area were required to clock in at temporary guard headquarters at the start of the shift, instead of reporting to the Safeway Building in Grand Island. Upon being relieved, those on posts in the plant area were required to return to guard headquarters to clock out. On September 26, 1942, permanent headquarters were established in the permanent guard building on the plant area grounds and the temporary headquarters were abandoned.

From October 31, 1942, until the end of operation of the Cornhusker Ordnance Plant by the defendant, the guards were paid on a basis of 8¾ hours per shift. The additional time allowance was made effective by changing the regular shift schedule to the following October 31, 1942:

Shift No. 1 — 11:30 p. m. to 8:15 a. m Shift No. 2 — 7:30 a. m. to 4:15 p. m Shift No. 3 — 3:30 p. m. to 12:15 a. m.

These shifts were continued until November 28, 1942, when they were changed to the following:

Shift No. 1 — 10:15 p. m. to 7:00 a. m Shift No. 2 — 6:15 a. m. to 3:00 p. m. Shift No. 3 — 2:15 p. m. to 11:00 p. m.

Pursuant to this change, the guard mount was to be held at 10:15 p. m., 6:15 a. m., and 2:15 p. m., and the clock was to be punched not later than five minutes after the designated time of guard mount. After September 29, 1943, guard mount was held at 10:20 p. m., 6:20 a. m., and 2:20 p. m., and the clock could be punched not later than those designated hours.

On or about November 8, 1943, an order was issued to the guards that beginning November 8, 1943, all guards would be required to leave their uniforms at the plant. Lockers were provided for the guards in which the uniforms would be left when the guards were not on duty and where usual wearing apparel would be kept when the guards were on duty. This altered the previous practice of allowing the guards to wear their uniforms home or leave them at the plant as they saw fit.

It was usual for the guards to enter the main gate, go to their lockers and change clothes and clock in prior to the start of their shift. After clocking in the guards would proceed to guard mount which included roll call, inspection, instructions and orders for the day. From guard mount the guards would proceed by their own or company transportation to their posts. All the activities engaged in by the employees, prior to the time they reached their posts were preliminary activities and were not part of the day's principal activities.

When the guards reached their posts, they were required to remain at their posts until relieved. The guards were allowed to eat their lunches at their posts but were not relieved of their duties for that purpose and the company did not take any deduction from their pay for time spent eating their lunches. The activities engaged in by the guards while they were eating their lunches were part of their principal activity and they received full compensation therefor.

At the end of the shift period the guards returned to the guard headquarters to clock out. Usually the guards were returned in ample time to check out by the end of the shift. If a delay of more than seven minutes in returning a guard to headquarters at the end of the shift occurred, the guard would make a claim to the shift captain, which claim was initialed by the chief of the guards, and additional compensation was paid. All claims made under these circumstances were allowed and paid. The guards changed their clothes, turned in their guns and clocked out at headquarters. Returning to headquarters, turning in guns, changing clothes and checking out were postliminary activities and were not part of the guard's principal activity.

Prior to May 10, 1942, the shift periods did not overlap. The guards reported to their posts at the beginning of their shifts and left them at the end of their shifts and did not receive any compensation for preliminary and postliminary activities. From May 10, 1942, until October 31, 1942, the shift periods overlapped each other by thirty minutes. As a practical matter, this meant that there were thirty minutes...