Deley v. Atlantic Box & Lumber Corp.

• Decision Date: 15 March 1954
• Docket Number: Civ. A. No. 1252-52.
• Court: U.S. District Court — District of New Jersey
• Parties: DELEY et al. v. ATLANTIC BOX & LUMBER CORP.

119 F. Supp. 727

DELEY et al. v. ATLANTIC BOX & LUMBER CORP.

Civ. A. No. 1252-52.

United States District Court D. New Jersey.

March 15, 1954.

Talisman & Golat, Newark, N. J., by Solomon Golat, Newark, N. J., for plaintiffs.

Cohen & Turtz, West New York, N. J., by Sydney I. Turtz, West New York, N. J., for defendant.

HARTSHORNE, District Judge.

The four plaintiffs, Pierre Deley, Joseph Stubin, Anthony Gentile, and Fritz Christmann, sue defendant, their employer, each in separate counts, to recover alleged unpaid overtime compensation, plus liquidated damages, under the Fair Labor Standards Act of 1938, § 16 (b), 29 U.S.C.A. § 216(b). Defendant answered this complaint in January 1953, but not till a year later, in January 1954, when the case was pre-tried, did it raise the defense that plaintiffs' failure to file timely their "consent in writing" to becoming a party to the suit under the above section, and its amendment by the so-called Portal-to-Portal Act, Public Law 49, 80th Congress, Chap. 52, 1st Sess., approved May 14, 1947, 29 U.S. C.A. § 256, as amended, had barred such action. It then moved to strike the complaint accordingly, as permitted at pretrial.

The question is, whether plaintiffs here are required by the statute to file any "consent in writing" thereunder, in order to bring the above suit. This, in turn, depends more explicitly upon the question whether such suit is one brought by an employee for such overtime "for and in behalf of himself or themselves and other employees similarly situated", Section 216(b), as amended by the Portal-to-Portal Act of 1947, § 5, and as called a "collective or class action" by Section 7 of the latter act. See also F.R.C.P. 23(a) (3), 28 U.S.C.A. "Class actions". Or, on the other hand, is this action simply one brought by each employee for his own overtime rights, all four such actions being joined as four separate counts in a single complaint under the entirely different authority of F.R.C.P. 20(a), which permits the joinder "in one action" of rights "arising out of the same * * * series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action."

As usual, the intent of the Congress, in the enactment of the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq., becomes of importance in construing its words, and this intent is illuminated by the history of those words.

After the Fair Labor Standards Act was adopted in 1938, 29 U.S.C.A. § 201 et seq., a host of so-called class actions were instituted to recover overtime, with certain employees bringing suit therefor "in behalf of himself or themselves and other employees similarly situated," exactly as Congress itself stated in the above statute. The essence and prime purpose of these actions were that one employee would seek to obtain the adjudication of his rights on behalf of all others similarly situated. The others would normally not be named, and the suit might well proceed to judgment on behalf of the single named party plaintiff, without the specific rights of the others ever being actually considered. Yet many courts held that a favorable judgment for the named employee plaintiff would be res judicata for all members of the class, and per contra, it has been held that a judgment for the employer would not bar actions thereafter by members of the class who were not parties in fact to the original suit. Further, it had been held that the filing of the complaint lifted the time bar of the statute of limitations not merely as to the party actually before the Court, but as to all members of the class. In addition, of course, in a complaint by employee A in behalf of all others similarly situated, as well as himself, the defendant never knew what other members of the class were going to participate in the action in fact, and might therefore well be surprised at trial by such testimony, at least in the absence of an unusually thorough pre-trial. Indeed it has also been held that unknown members of a class could intervene even after trial. 3 Moore's Federal Practice, page 3465, 3456, 3476 (2d Ed.1948).

Faced with this situation, imposing such a hardship on defendant employers, the Congress enacted the Portal-to-Portal Act of 1947, with the provisions...