Conwell v. Central Missouri Telephone Co.
| Decision Date | 26 November 1947 |
| Docket Number | No. 4536.,4536. |
| Citation | 74 F. Supp. 542 |
| Parties | CONWELL v. CENTRAL MISSOURI TELEPHONE CO. |
| Court | U.S. District Court — Western District of Missouri |
Robert L. Jackson, of Kansas City, Mo., for plaintiffs.
Dooley & Baker, of Chicago, Ill., and Morrison, Nugent, Berger, Hecker & Buck, of Kansas City, Mo., for defendant.
The matter for consideration is defendant's motion to dismiss plaintiff's complaint for overtime compensation arising under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., on the ground that under the allegations of the complaint the Court is without jurisdiction.
The action was instituted on January 21, 1947, prior to the passage of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq. It is not a so-called portal-to-portal case and the complaint does not allege that the amount claimed is due "pursuant to an express provision of a written or unwritten contract in effect at the time of such activity between the employee, his agent or collective bargaining representative and his employer, or to a custom or practice in effect at that time." Defendant insists that under the Portal-to-Portal Act such an allegation is necessary to confer jurisdiction on the Court.
Plaintiff alleges that from and after February 1, 1942, she was employed by the defendant as a night operator of the telephone exchange operated by the defendant at Holden, Missouri, and Laura Pinkepank was employed by the defendant as a night operator of the telephone exchange operated by the defendant at Sweet Springs, Missouri; 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 11 hours per day, 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, in that the plaintiffs received telephone calls from outside of the State of Missouri destined for people within the State of Missouri, the plaintiffs assisting in and conducting said interstate communication referred to, handled long distance telephone messages originating within the State of Missouri to numerous points outside the State of Missouri, assisting in the interstate communication at all times herein mentioned; that the telephone exchanges of the defendant located at Holden, Missouri, and at Sweet Springs, Missouri, at all times herein mentioned were integral parts of interstate commerce and interstate communication, and at all times herein mentioned the defendant was an employer within the terms and conditions of the Act; that the employees at all times were employees under the terms and conditions of the Act; and that the plaintiffs and the defendant at all times herein mentioned were engaged in commerce and in the production of goods for interstate commerce under the terms and conditions of the Act.
Plaintiff further alleges that from February 1, 1942, to September 1, 1946, Lillie Conwell worked the total of 2,500 hours for which she was not paid time and a half for overtime; that she was employed continuously during said period of time at the minimum rate of 40 cents per hour, and that the defendant is indebted to her for 2,500 hours of overtime at time and a half or at 60 cents per hour, or a total of $1,500; that from February 1, 1942, to September 1, 1946, Laura Pinkepank worked the total of 3,000 hours for which she was not paid time and a half for overtime; that she was employed continuously during said period of time at the minimum rate of 40 cents per hour, and that the defendant is indebted to her for 3,000 hours of overtime at time and a half or at 60 cents per hour, or a total of $1,800.
Defendant contends that although the action is not a portal-to-portal pay claim, the jurisdiction of the Court is governed by the Portal-to-Portal Act and that the jurisdiction of the Court is founded entirely upon the question of whether or not the compensation of the plaintiff was based upon an express written or unwritten contract, or a practice or custom. The latter Act denies to the Court the right to entertain jurisdiction of any claim, although it may have accrued prior to the passage of the Act, and notwithstanding the fact that it arose as a legitimate claim for compensation for time actually worked in interstate commerce in excess of 40 hours as defined by Section 207, supra, except as specifically granted by the Act.
The question is solely one of jurisdiction. The plaintiff alleges that she worked 11 hours a day, 6 days a week each and every week between certain specific dates, during all of which period the duties performed by her were in interstate commerce, and that said employment was continuous during periods for which she was employed at the minimum rate of 40 cents per hour and that the defendant is indebted to her for all time in excess of 40 hours per week actually worked by her, or a total of 2,500 hours at 60 cents an hour for time and a half.
The Portal-to-Portal Act did not repeal Section 207 of the Fair Labor Standards Act of 1938 nor change any of its provisions. It simply withdrew from the Court jurisdiction to entertain certain types of cases that had been brought or likely would be brought under the assumption that the Act applied. The portal-to-portal pay cases were not cases in which compensation was sought for work actually rendered in excess of 40 hours per week as provided by the Fair Labor Standards Act, but were for compensation claimed for time spent in preparation for work to be performed — that is, for getting ready to work, such as changing clothes before and after actual working hours and for proceeding from certain places on the premises of the employer to actual places of work and in returning from the actual places of work to the starting point.
If defendant is correct as to the legislative intent, then no person other than the organized groups...
To continue reading
Request your trial
-
Devine v. Joshua Hendy Corporation
...324 U.S. 697, 706-713, 65 S. Ct. 895, 89 L.Ed. 1296. 54 29 U.S.C.A. § 260. 55 Although Judge Duncan, in Conwell v. Central Missouri Telephone Co., 1947, D.C.Mo., 74 F.Supp. 542, 544, 545, was dealing not with facts proved at a trial, but with the allegations of a complaint, his views as to ......
-
Seese v. Bethlehem Steel Co.
...& Fuel Associates, D.C., 74 F.Supp. 937; Hollingsworth v. Federal Mining & Smelting Co., D.C., 74 F.Supp. 1009; Conwell v. Central Missouri Telephone Co., D.C., 74 F.Supp. 542; Holland v. General Motors Corporation, D.C., 75 F.Supp. ...
-
Boerkoel v. Hayes Mfg. Corporation, Civil Action No. 963.
...clearly show the jurisdiction of the court, the selection of particular language or words is not necessary. Conwell v. Central Missouri Telephone Co., D. C., 74 F.Supp. 542, 545. However, a complaint which merely alleges that the plaintiff was engaged in commerce or in the production of goo......
-
Conwell v. Central Missouri Telephone Co.
...from defendant $2,453.95 in overtime compensation, an attorney's fee of $1,000, and the costs of the action. 1 Conwell v. Central Missouri Telephone Co., D.C., 74 F.Supp. 542. 2 "6. In a few occupations periods of inactivity need not be considered as hours worked even though the employee is......