Cudahy Packing Co. of Alabama v. Bazanos

• Decision Date: 04 November 1943
• Docket Number: 3 Div. 375.
• Citation: 15 So.2d 720,245 Ala. 73
• Parties: CUDAHY PACKING CO. OF ALABAMA v. BAZANOS.
• Court: Alabama Supreme Court

15 So.2d 720

245 Ala. 73

CUDAHY PACKING CO. OF ALABAMA v. BAZANOS.

3 Div. 375.

Supreme Court of Alabama

November 4, 1943

Rehearing Denied Dec. 16, 1943.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter, Judge.

The following is Count 3 of the complaint:

"The plaintiff claims of the defendant $2,205.15, and the plaintiff alleges the defendant was and is now engaged in operating a packing company, house or meat business located in Montgomery, Alabama, which is engaged in the packing curing, preparing, cutting, processing, distributing wholesaling, and shipping of meats, lard, cheese, etc., and at all times hereinafter mentioned, and employed and is now employing approximately twelve or more employees in and about its said plant or packing house engaged in the receiving packing, curing, preparing, cutting, processing, wholesaling, distributing and shipping of meats, lard, cheese, etc., and in occupations necessary for such receiving, packing, curing, cutting, processing, distributing, wholesaling and shipping of meats, lard, cheese, etc. Plaintiff further alleges that a large part of the meat, lard, cheese, etc., are shipped for (from) states other than the State of Alabama to defendant's plant in Montgomery, and are transported, shipped, delivered and sold through interstate commerce other than in the State of Alabama to the defendant's plant or packing house in Montgomery, Alabama, and a large part of the same, is, after being received in Montgomery, is delivered, cured, treated, cut, processed, wholesaled, etc., in, to, and through states other than the State of Alabama and is therefore engaged in interstate commerce.

"Plaintiff also alleges that he was engaged in the checking of incoming merchandise, in that plaintiff would take the plant invoices (which came from the shipping plant) and check them against the unloading records of the car or cars so shipped for merchandise missing, damaged, etc., sending off damage reports to the home office and posting individual items in stock record book, preparing and mailing tonnage reports, making up manufacturing cost records on certain merchandise, making up inventory reports of merchandise on hand, etc., a large part of such merchandise being shipped direct to defendant's Montgomery plant or packing house from out of the State and through other states other than the State of Alabama to the plant or packing house at Montgomery, Alabama, and that thereafter a large part of such shipments checked by the plaintiff were reshipped by the defendant into other states. Plaintiff further avers that he performed many other duties in connection with such interstate shipments set out above in connection with the receiving, packing, curing, preparing, cutting, processing, wholesaling, distributing, and shipping of meats, lard, cheese, etc.

"Plaintiff further alleges that the products handled and received, cut, processed, prepared, packed, cured, distributed, and shipped by the defendant in its said packing house or plant competes with products of similar packing houses or companies operating in other states.

"Plaintiff avers that under Section 7 of said Act, the defendant was engaged in interstate commerce as provided for in the Fair Labor Standards Act of 1938 and was bound to pay its employees time and a half for over time for all hours worked over 44 each work week from October 24, 1938 to October 24, 1939 and for all over 42 hours per work week from October 24, 1939 to to-wit February 2, 1940, and that the defendant has failed and refused to pay its employees such other time compensation since said time. Plaintiff further avers that though the said defendant was engaged in interstate commerce, as provided by the Fair Labor Standards Act of 1938 and has failed to comply with the work hours provisions of Section 7 of said Act, and that during the work weeks beginning October 24, 1938 and ending October 24, 1939, defendant worked or suffered or permitted the plaintiff to work in its said packing house or plant as aforesaid in and about his duties above described 742 hours overtime and paid wages to plaintiff at the rate of $.6818 per hour for the first 44 hours worked each work week, without any pay for overtime, whereas under the provisions of said Act, plaintiff should have received $1.0227 for each hour worked in excess of 44 each work week, being time and a half for all such overtime above described, and therefore, plaintiff was underpaid accordingly for such overtime worked during such work weeks $758.68 for the said period.

"The plaintiff avers that during the period from October 24, 1939 to February 2, 1940, defendant worked or suffered or permitted the plaintiff to work in his said packing house or plant as aforesaid for a total of 115 hours overtime during such period and paid wages to the plaintiff at the rate of $.7143 per hour for the first 42 hours without any pay for overtime, whereas, under the provisions of said Act the plaintiff should have received $1.0715 for each hour worked in excess of 42 in each work-week, being time and a half for such hours so worked in overtime, and, therefore, plaintiff was accordingly underpaid $117.67 for such period of work.

"Wherefore, plaintiff prays that judgment be awarded to him in the amount of $882.06 for the underpaid overtime compensation and for an additional equal amount of $882.06, as liquidated damages, together with cost, and that the Court allow $441.03 as a reasonable attorney's fee to be paid by the defendant, as allowed by the Act, which said amounts total $2,205.15."

The substance of pleas 5, 6, 7, 9 and 10 is that plaintiff and defendant entered into an agreement that he would work for it for $30 per week with no extra pay for any part of the time he worked, and when his employment terminated, and before this suit was commenced they agreed it owed him $30, less proper charges, and defendant paid him that sum and an additional $30 for the following week, which he did not work, and said payments were received and accepted by plaintiff in full of all of defendant's liability to him.

Plea 11 is that plaintiff was employed by defendant to do nothing but clerical work in its accounting department, consisting of the transfer of facts and figures from invoices and other records to condensed classified records and recapitulating the same, and preparing reportings thereof, and if he performed any other kind of work he was not ordered or authorized to do so by defendant or any of its authorized agents.

Ball & Ball, of Montgomery, for appellant.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

STAKELY Justice.

This is a suit brought by George A. Bazanos against his former employer, the Cudahy Packing Company of Alabama, under the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq., to recover alleged unpaid overtime compensation, an additional equal amount as liquidated damages, plus attorney's fee and costs. There was a verdict by the jury for which judgment was rendered by the court on October 17, 1942. Thereafter on motion by the plaintiff, the court rendered judgment for the plaintiff against the defendant for attorney's fees, which was added to the original judgment. This appeal is from this judgment.

The questions for decision are whether or not the appellant and appellee were engaged in interstate commerce within the meaning of the Fair Labor Standards Act and, if so, whether or not the recovery for overtime compensation was properly computed and whether or not the allowance for attorney's fees was properly made.

Pertinent provisions of the Fair Labor Standards Act, set out in U.S.C.A., Title 29, are as follows:

"§ 203(b) 'Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof."

"§ 207(a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce--

"(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,

"(2) for a workweek longer than forty-two hours during the second year from such date, or

"(3) for a workweek longer than forty hours after the expiration of the second year from such date, "unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

"(d) This section shall take effect upon the expiration of one hundred and twenty days from the date of enactment of sections 201-219 of this title. June 25, 1938, c. 676, § 7, 52 Stat. 1063, as amended Oct. 29, 1941, c. 461, 55 Stat. 756."

The date of enactment of the Act was June 25, 1938. There is no dispute between the parties that the Act took effect October 24, 1938, and that if the Act is applicable, time and a half should have been paid for overtime for all hours worked over forty-four for each week from October 24, 1938, to October 24, 1939, and for all over forty-two hours per work week from October 24, 1939, to February 2, 1940.

Pertinent also is the section of the Fair Labor Standards Act as shown in U.S.C.A. Title 29, which provides for the civil liability of the employer to his employees, as follows: "§ 216(b) Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent...