Culkin v. Glenn L. Martin Nebraska Co.
| Decision Date | 30 April 1951 |
| Citation | 97 F. Supp. 661 |
| Parties | CULKIN et al. v. GLENN L. MARTIN NEBRASKA CO. |
| Court | U.S. District Court — District of Nebraska |
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Emmet L. Murphy, Omaha, Neb., for plaintiffs.
George L. DeLacy and Leo Eisenstatt, of Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., Donald Leach, Columbus, Ohio, for defendant.
The plaintiffs, Wren L. Culkin, Glen West, Francis H. Masker and Alex Feilmeyer brought this action against the Glenn L. Martin Nebraska Company,1 a corporation, on behalf of themselves and others similarly situated, to recover compensation for overtime under the provisions of the Fair Labor Standards Act of 1938 as amended2. The defendant asserts that as to the claims of all the parties, other than the four individuals named above, the statute of limitations is a bar because, as to them, the action was not commenced within the time allowed3. In this connection the court's attention is called to Section 8 of the Portal to Portal Act, which provides that the statute of limitations 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) 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, 29 U.S.C.A. § 257. Since no written consents were filed4 the only question is whether all the parties seeking recovery were specifically named as parties plaintiff when the complaint and amended complaints were filed. If they were, the action has been commenced as to them within the time allowed by the Statute of Limitations.5
It is true that only four individuals were named in the caption and introductory paragraph of the complaint. However, the complaint clearly asserts that these four individuals — "* * * have been duly appointed and designated as agents or representatives, in writing, to maintain this action for and in behalf of all employees similarly situated and particularly the employees named in the schedules attached to the original Complaint, marked Exhibit `A', and Exhibit `B', attached hereto, are made a part of the Amendment to the Complaint as fully as if set forth and incorporated herein." These schedules marked Exhibit "A" and Exhibit "B" set forth the names of the various employees and the compensation claimed by each; consequently, the court has concluded that all of the employees specifically named in these schedules were named as parties plaintiff within the meaning of Section 8 of the Portal to Portal Act. Gibbons v. Equitable Life Assurance Society of United States, 2 Cir., 1948, 173 F.2d 337.
Since the right of the plaintiff to recover and many defenses of the defendant are dependent upon the determination of certain factual issues6 the court has carefully examined the material evidence adduced at the trial and hereby makes the following special
Findings of Fact:
Sometime prior to January, 1942, the United States Government erected an airplane assembly and modification plant on a military reservation, known as Fort Crook, Nebraska, which is situated approximately ten miles south of the city of Omaha, Nebraska. The entire plant area, comprising nearly seven hundred acres, was at all times material to this action, owned by the United States, as were the plant buildings and all equipment, machinery and tools used therein.
Beginning in 1941, the Government7 entered into a series of contracts with the defendant Martin Company pertaining to the operation of the beforementioned plant and the assembly and modification therein of certain military aircraft. There were in all four main contracts. The first contract8 executed June 28, 1941, provided for the assembly by the Martin Company of twelve hundred medium bombers, Type B-26, on a cost-plus-a-fixed fee basis. The second contract,9 executed November 6, 1942, covered the modification by the defendant company of various types of Allied airplanes on a cost-plus-a-fixed fee basis. The third contract,10 executed July 20, 1943, related to the assembly of one thousand additional medium bombers, Type B-26 on a straight fixed fee basis. Since this contract provided a basis for compensation to the defendant differing materially from the basis provided in the other three contracts, it may be well to mention that this contract was performed by the Martin Company during the period beginning in March, 1943, and ending late in the summer of 1944. The fourth contract,11 executed June 30, 1944, covered the assembly of heavy bombers, Type B-29, on a cost-plus-a-fixed fee basis. This contract was terminated following the cessation of hostilities ending World War II, at which time five hundred and thirty-one B-29 "Super-fortresses" had been delivered to the Government by the defendant pursuant to the terms of this last contract.
As a general rule, the assembly contracts were carried out in the following manner: The Government would contract for construction of the component parts of the aircraft with various major subcontractors. For example, the Chrysler Corporation of Detroit, Michigan, would produce the fuselage of the plane, the Goodyear Aircraft Corporation of Akron, Ohio, would fashion the wings and the Hudson Motor Car Company of Detroit, Michigan, would construct the empennage. Certain special components known as "G F E",12 such as engines, propellers, bombsights, instruments and armament, were furnished directly by the Government. All of the components mentioned above were paid for by the Government and ordinarily would be shipped to the Martin Company under Government bills of lading. A small portion of the materials used in the airplanes was purchased directly by the defendant company, and the company would in turn be reimbursed for the purchase price by the Government. The title to all materials purchased for use in the assembly of aircrafts, under the terms of the contracts, vested immediately upon purchase in the United States Government. After receiving the components, the Martin Company, constructing, itself, portions of the plane not otherwise provided for, would assemble the aircraft. Upon completion, the bomber would be delivered, at the place of its assembly, to the Government. The liability of the Government to pay for any particular plane did not become finally fixed, nor did the responsibility of the Martin Company for the proper construction of the plane terminate until it was accepted by the Government.13
The modification contract was carried out in a manner substantially similar to the assembly contracts with the obvious difference that under the modification contracts the defendant merely effected changes or alterations in aircrafts as distinguished from completely assembling the same.
All of the planes delivered by the defendant to the Government, under the terms of the contracts mentioned above, were used by the Government in the prosecution of World War II and were flown by the Government to various points outside the state of Nebraska.
During the initial operation of the Bomber Plant at Fort Crook, Nebraska, the Government loaned large sums of money to the Martin Company in the following manner: The Government established certain funds which the Company was authorized to draw upon for the purpose of paying the costs of operation. As the funds were depleted the Government would replenish them, so that the Company would always have sufficient capital available to meet the costs of operation as such came due. As the costs were paid by the Company, they would be checked by Government auditors retained at the plant, and the amount of the costs approved as proper under the contracts, would be credited against the previous advances which the Government had made to the Martin Company.
In order to carry out the contracts with the Government, the Martin Company, through its personnel and employment offices, hired a great many employees, including the present plaintiffs in this action. As a security precaution, all employees were hired subject to the approval of the Government. These employees, who were used in the performance of the Government contracts, were paid by checks issued by the Martin Company; they were subject to the Nebraska Workmen's Compensation Laws; they received benefits (sick leave, vacation pay, etc.) differing materially from the usual benefits received by Government employees; and finally, they were under the direct control and supervision of the Martin Company.
All of the plaintiffs involved in this action were members of the Company's protective force stationed at the Bomber Plant. This force which consisted of guards and firemen, had the duty, generally, to preserve order, prevent espionage and sabotage, guard against and extinguish fires and to take any action reasonably necessary to the preservation of the plant, the protection of the employees and the prevention of subversive acts. The entire plant area was enclosed in a strong wire fence and the protective force maintained vigilance over this area on a three-shift, twenty-four hour a day, basis. Prior to March 6, 1943, the shift periods for guards and firemen at the defendant's plant were as follows:
January, 1942, until May 4, 1942
1st Shift 8:00 A.M. to 4:00 P.M
2nd Shift 4:00 P.M. to 12:00 Midnight
3rd Shift 12:00 Midnight to 8:00 A.M
May 4, 1942, until March 6, 1943
1st Shift 7:00 A.M. to 3:00 P.M
2nd Shift 3:00 P.M. to 11:00 P.M.
3rd Shift 11:00 P.M. to 7:00 P.M.14
It was the custom and practice prior to March 6, 1943, to compensate the...
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...to eat at his desk or a factory worker who is required to be at his machine is working while eating. (Culkin v. Glenn L. Martin, Nebraska Co., 97 F.Supp. 661 (D.Neb. 1951), aff'd 197 F.2d 981 (C.A.8, 1952), cert. denied 344 U.S. 888 866 73 S.Ct. 108, 97 L.Ed. 671 (1952); Thompson v. Stock &......
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...a party plaintiff" when her name appeared in the body of the complaint, although not in the caption. See also Culkin v. Glenn L. Martin Nebraska Co., D.C.Neb.1951, 97 F.Supp. 661, affirmed 8 Cir., 197 F.2d 981, certiorari denied 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 671; and Ciemnoczolowski ......
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29 C.F.R. § 785.19 Meal
...at his desk or a factory worker who is required to be at his machine is working while eating. ( Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888(1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D.......
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29 C.F.R. § 785.19 Meal
...at his desk or a factory worker who is required to be at his machine is working while eating. ( Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888(1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D.......
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29 C.F.R. § 785.19 Meal
...at his desk or a factory worker who is required to be at his machine is working while eating. ( Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888(1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D.......