Fox v. Summit King Mines

• Decision Date: 27 June 1944
• Docket Number: No. 10526.,10526.
• Citation: 143 F.2d 926
• Parties: FOX et al. v. SUMMIT KING MINES, LIMITED.
• Court: U.S. Court of Appeals — Ninth Circuit

143 F.2d 926 (1944)

FOX et al. v. SUMMIT KING MINES, LIMITED.

No. 10526.

Circuit Court of Appeals, Ninth Circuit.

June 27, 1944.

Martin J. Scanlan, of Reno, Nev., for appellants.

Thatcher & Woodburn, George B. Thatcher, Wm. Woodburn, and Wm. J. Forman, all of Reno, Nev., for appellee.

Douglas B. Maggs, Sol., Wage and Hour Division, U. S. Dept. of Labor, Bessie Margolin, Asst. Sol., Morton Liftin and Frederick U. Reel, all of Washington, D. C., and Dorothy Williams, of San Francisco, Cal., for Administrator of Wage and Hour Division, U. S. Dept. of Labor, amici curiæ.

Before WILBUR, GARRECHT, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

This action was instituted by eleven former employees of the Summit King Mines, Limited, a Nevada corporation (appellee herein), to recover unpaid overtime compensation allegedly due them under the provisions of the Fair Labor Standards Act of 1938, Title 29 U.S.C.A. §§ 201-219, 52 Stat. 1060 (hereinafter referred to as the Act), together with liquidated damages, attorneys fees and costs as provided in the Act.

Appellee denies that there is any unpaid compensation due the appellants and also denies that it was engaged in commerce within the provisions of the Act.

By stipulation entered into between the parties on October 20, 1942, in order to reduce the issues involved in the case, it was agreed that the appellee "produced gold and silver ores in Churchill County, Nevada, and that the same were reduced to bullion and transported by United States Mail in interstate commerce from Churchill County, Nevada, to San Francisco, California, and that the bullion was sold to the United States Mint at San Francisco, California."

The parties further stipulated that the computations submitted by appellants and the total amount of compensation claimed to have been earned and unpaid in the Amended Bill of Complaint are correct in accordance with plaintiffs' theory of the case and need not be proven, and also that the testimony of the plaintiffs not present at the trial would be the same as the plaintiffs testifying, as to the same character of work, mill routine, policy of management, making time and work reports and other evidence of a general nature pertaining to their employment.

The mill began operations on January 5, 1940, when the 42-hour week was in effect under the said Fair Labor Standards Act and since has been in operation continuously including all the time here in question. All of the appellants were employed in appellee's mill subsequent to the enactment of the Act for various periods of time between January, 1940 and April, 1942.

The mill was operated continuously for twenty-four hours per day. Each work day was divided into three shifts of eight hours each. Two men were employed on each shift, one in charge of the ball mill and the other of the solution process, the latter being in supervisory charge of the shift.

Prior to the opening of the mill, and again on April 23, 1941, the management had posted in the mill notices to mill employees fixing the rates and lunch period.

Appellants allege that prior to April 23, 1941 they rendered services to the appellee for eight hours during every shift of their employment and were responsible to the appellee for the proper and careful operation of the machinery and equipment and for the flow, thickening, separation, sampling, and other processes of the ore through the mill for each eight-hour shift, but received compensation therefor for only seven hours; that after that date, on April 23, 1941, to settle a controversy which arose between the appellants and the management relative to an increase in wages, the management agreed that the mill men would get an increase of 25 cents per shift computed at the rate of time and one-half for eleven minutes per shift for the solution men, and time and one-half for twelve minutes per shift for the ball-mill men, which resulted in an increase of approximately $1.50 per week. The appellants claim that they were not paid for 49 minutes and 48 minutes, respectively, for the solution men and the ball-mill men.

Appellee concedes that the mill operated continuously for twenty-four hours per day, divided into three shifts of eight hours each, but contends that the mill men were allowed one hour for lunch each shift and therefore were entitled to compensation for only seven hours each shift until April 23, 1941, at which time the management agreed to pay the solution men and the ball-mill men overtime for eleven and twelve minutes of the alleged "lunch hour," respectively.

The case was tried in the District Court, without a jury, on January 27, 1943, and that court rendered judgment against appellants and they have appealed.

The District Court made the following findings of fact:

"That beginning in the month of January, 1940 and ending on the 1st day of April, 1942 defendant had employed plaintiffs in this action for various periods of time in a mill for the reduction of gold and silver ores operated by defendant.

"That none of the plaintiffs during his period of employment by defendant was engaged in commerce or in the production of goods for commerce.

"That the said mill of the defendant operated for a period of twenty four hours per day, divided into three shifts of eight hours each; that each of the plaintiffs performed work, labor and services in said mill for a period of seven hours during the particular shift upon which he was working, and that each of the plaintiffs was free from duty for a period of one hour during each shift for the purpose of eating his lunch; that each of said plaintiffs was paid in full by defendant at the rate of wages established by agreement between plaintiff and defendant, which wage was in excess of that required by the Fair Labor Standards Act; that each of said plaintiffs was paid overtime at the rate of one and one-half times the amount of the agreed wage for all hours worked in excess of forty two hours a week during the period of employment from January, 1940 to October, 1940; that from October, 1940 to the termination of the employment of each of the plaintiffs each of said plaintiffs was paid overtime at the rate of one and one-half times the agreed wage for all hours worked in excess of forty hours per week.

"That none of the said plaintiffs made any claim for overtime other than that they paid defendant during the period of his employment by defendant and that none of said plaintiffs made any claim for the payment of overtime until the making of demand upon defendant prior to the filing of the action in the present case, said demand being refused by defendant.

"That none of the plaintiffs performed any work or labor for defendant during the lunch hour or at any other time for which he did not receive pay for overtime at one and one half times the agreed wage."

The paramount issue in this case is whether the Summit King Mines, Limited, is engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act of 1938, 29 U.S. C.A. §§ 201-219, 52 Stat. 1060. In deciding this issue, the District Court relied on the case of Holland v. Haile Gold Mines, Inc., 44 F.Supp. 641. That case was subsequently reversed by the Circuit Court of Appeals for the Fourth Circuit (Walling v. Haile Gold Mines, 136 F.2d 102, 103), which held:

"`Production' as defined in Section 3(j) of the Act 29 U.S.C.A. § 203(j) expressly includes mining as well as `any process or occupation necessary' to production. `Goods', as that term is used in Section 3(i) of the Act, means `articles or subjects of commerce of any character.' This definition of goods is broad enough to include gold, since Section 3 of the Gold Reserve Act, 31 U.S.C.A. § 442, specifically provides that gold may, under certain circumstances, be used `for industrial, professional, and artistic' purposes. Citing case Section 3(b) of the Act defines `commerce' as including `transportation, transmission, or communication among the several States or from any State to a place outside thereof'. It cannot be denied that the gold produced by Haile was transported and transmitted from South Carolina to a `place outside thereof'."

In the case at bar, as in the Haile Gold Mines case, supra, the gold and silver bullion, after it is obtained from the mine, is delivered by appellee to the United States Post Office in its county in Nevada, and from there forwarded to the United States Mint at San Francisco, California.

While the Supreme Court has not ruled on this question, the determination of the Fourth Circuit is in accord and consistent with decisions of this Court and other courts under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.¹

Appellee cites the case of National Labor Relations Board of Idaho-Maryland Mining Corporation, 9 Cir., 98 F.2d 129, in which a contrary conclusion was reached by this court. That case has no bearing upon the case at bar because the facts in the former case were different. The Idaho Maryland Mine was located in California; the product was produced in California and was sold to a government mint located in California. Thus, the product produced by the mine did not cross state lines at any time before it reached the mint when it became the property of the United States Government. We did hold in the above case that the subsequent shipment of the gold and silver by the mint to Denver for safe-keeping was an administrative act of the Government and not such a commercial transaction as would render the respondents' activities subject to the National Labor Relations Act, but those shipments across State lines were made after the gold and silver became the property of the Government, while in the case at bar the interstate shipment occurred while the product was still the property of the mine and before it reached the mint.

Appellee further contends that under the Gold Reserve Act of 1934, 31 U.S.C.A. §§ 440-446, 48 Stat. 337, and the...