Conwell v. Central Missouri Telephone Co.

• Decision Date: 10 March 1948
• Docket Number: No. 4536.,4536.
• Parties: CONWELL v. CENTRAL MISSOURI TELEPHONE CO.
• Court: U.S. District Court — Western District of Missouri

76 F. Supp. 398

CONWELL v. CENTRAL MISSOURI TELEPHONE CO.

No. 4536.

District Court, W. D. Missouri, W. D.

March 10, 1948.

COPYRIGHT MATERIAL OMITTED

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

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

DUNCAN, District Judge.

Plaintiffs instituted this action under the Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq., to recover for overtime compensation alleged to have been earned while employed by defendant as night telephone operators in excess of 40 hours per week. It is admitted that plaintiffs were engaged in commerce as defined by the Act.

There is little dispute about the facts. Mrs. Conwell was employed as night telephone operator at Holden, Missouri, for approximately 20 years, and Miss Pinkepank was employed in the same capacity at Sweet Springs, Missouri, for a little longer period of time. During all of that period of time plaintiffs were on what is termed an eleven-hour tour. They were required to go on duty at nine o'clock in the evening and to remain there until eight o'clock the following morning. They were paid for eight hours only until 1943. The difference between the time compensated for and eleven hours was designated as sleeping time, and a cot was furnished by defendant and placed in a room near the switchboard so that the operator might utilize such time as her duties permitted in rest or sleep. In 1943 an increase in pay was requested and additional compensation was allowed by reducing the sleeping time at Holden from three to two hours and at Sweet Springs from three to two and one-half hours. Thereafter, Mrs. Conwell was paid for nine hours and Miss Pinkepank for eight and one-half. The switchboards were located in buildings owned or leased and controlled by defendant and were not in the homes of the operators. There was no change in plaintiffs' duties after the passage of the Fair Labor Standards Act of 1938. There was no written contract of employment. At the beginning of the period for which overtime compensation is sought, plaintiff Pinkepank was receiving 32 cents per hour and plaintiff Conwell 33 cents per hour. Periodic increases ultimately raised the hourly wage to 40 cents. In 1943 when plaintiffs requested an additional wage increase, defendant simply shortened the sleeping time and increased the working time.

Defendant has about 25 exchanges in central Missouri. Sweet Springs has a population of about 1,800 and between 600 and 700 telephone patrons. Holden is slightly smaller in population and number of patrons. Plaintiffs are still employed by defendant.

The switchboards operated by plaintiffs are commonly known as drop boards. Whenever a call comes into the board a small metallic disk-like device attached to the switchboard drops and exposes an aperture into which a plug is inserted to form the connection. Many of the patrons of each of the offices are rural subscribers, and a number of such subscribers are on each line. It is not necessary for a patron on a rural line calling another patron on the same line to route the call through the exchange. Each patron on such a line has a designated "ring" and answers when he recognizes his designated "ring" or signal. But notwithstanding the fact that such calls are not routed through the exchange, when a call is placed by one subscriber to another subscriber on the same line, the drop to which the line is attached on the board falls, and it requires the manual effort of the operator to replace it. Also during electrical storms the drops on a board will often fall, and the operator must replace them before the lines are again available for use in making connections. Consequently during the entire period that plaintiffs worked for defendant, they were required to replace the drops after they fell at whatever time that might be during their hours of duty.

Several long distance lines were routed through each of the switchboards each night. These lines afforded long distance service to patrons of smaller communities where the switchboards were closed at early hours each night. These long distance lines were in addition to the regular lines serving Sweet Springs and Holden.

The operators were charged with the responsibility of making records of long distance calls. Occasionally they dusted the boards, and during the winter months they maintained the fire in the stove in their exchange. However, their duties outside those of attending the switchboards, it seems to me, are of no consequence in determining whether they come within the provisions of the Fair Labor Standards Act.

The number of calls through each of the exchanges varied with the talking desires of the patrons. The load usually had decreased considerably by eleven o'clock or midnight. Thereafter calls were infrequent. Often there were considerable periods of time when there were no calls, and other periods when calls were more numerous, requiring more constant attention to the board. Usually after the ordinary load began to decrease, an automatic, electric bell was turned on, and the operator was permitted to leave the board. If a call came through the board, the bell sounded, attracting the attention of the operator.

The operator was not permitted to leave the premises or the room in which the switchboard was located between the time she went on duty at nine o'clock in the evening and the time her tour of duty ended at eight o'clock the following morning. Whatever the requirements of the board were with respect to the number of calls to be serviced by her, she was required to be there. Although the evidence is silent as to the exact number of calls that went through after midnight, it does reveal that the number of such calls varied nightly. Some nights the operators were able to get several hours of uninterrupted sleep; at other times they were disturbed at frequent intervals and obtained very little sleep. Whatever time was used in actual attendance upon the switchboard in excess of eight hours per day prior to 1943, and in excess of eight and one-half hours for Pinkepank and nine hours for Conwell thereafter, was not compensated for by the defendant.

An audit was made of defendant's records by an auditor employed by plaintiffs. Defendant does not deny the correctness of the figures but does deny its liability. The audit shows that the amount of overtime compensation allegedly due plaintiff Conwell is $1,331.98. The amount allegedly due plaintiff Pinkepank is $1,121.97. These figures represent the difference between the compensation they received and compensation for the full eleven hours during which they were required to be present and ready to serve defendant's patrons. More briefly, these figures represent compensation for the sleeping time for which they were not paid.

Defendant insists that the action comes within the provisions of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq., and that as plaintiffs did not allege that they were entitled to overtime as the result of the express provisions of a written contract or a custom or practice with respect to the particular industry, they are not entitled to recover. There is no such allegation in the complaint. The question was presented to the court in a motion to dismiss. That motion was overruled in a memorandum opinion.¹ The question is again raised here, and for the reasons set out in the memorandum opinion is ruled against defendant.

Defendant contends that the Fair Labor Standards Act does not apply to plaintiffs because they were engaged in employment in small telephone exchanges covered by paragraph 6 of Administrative Bulletin 13 of the Wage and Hour Division²; that the applicable Missouri statute of limitations³ is a bar to plaintiffs' claims for all compensation prior to two years before bringing this suit on January 21, 1947; and that plaintiffs have failed to sustain the burden of proof as to the number of hours for which they are entitled to compensation if they are covered by the Act.

At the close of all the testimony the defendant filed a motion to dismiss for the above reasons and also directed against Pinkepank on the additional ground that she had failed to file her written consent to become a party plaintiff as required by the Portal-to-Portal Act.

The question of whether Pinkepank was required to file her written consent to become a party plaintiff, and the question of the Missouri statute of limitations will be disposed of first.

Section 257 of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq., provides: "The statute of limitations prescribed in section 255(b) of this title shall also be applicable (in the case of a collective or representative action commenced prior to May 14, 1947 under the Fair Labor Standards Act of 1938, as amended) to an individual claimant who has not been specifically named as a party plaintiff to the action prior to the expiration of one hundred and twenty days after May 14, 1947. In the application of such statute of limitations such action shall be considered to have been commenced as to him when, and only when, his written consent to become a party plaintiff to the action is filed in the court in which the action was brought." Plaintiff Pinkepank did not file any written consent.

Much confusion arose under the Fair Labor Standards Act concerning actions for and on behalf of "other employees similarly situated." Many actions were brought by one employee, and in some instances by more than one employee, for himself and on behalf of others similarly situated, and considerable confusion arose over the judicial construction of that provision of the act. Some courts held that it was not necessary to name those similarly situated; others held that it was.

Evidently the Congress recognized this confusion by writing into the...