Glenn L. Martin Nebraska Co. v. Culkin

• Decision Date: 15 August 1952
• Docket Number: No. 14482.,14482.
• Citation: 197 F.2d 981
• Parties: GLENN L. MARTIN NEBRASKA CO. v. CULKIN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

197 F.2d 981 (1952)

GLENN L. MARTIN NEBRASKA CO. v. CULKIN et al.

No. 14482.

United States Court of Appeals Eighth Circuit.

June 24, 1952.

Rehearing Denied August 15, 1952.

George L. DeLacy, Omaha, Neb. (Leo Eisenstatt, Omaha, Neb., Donald Leach, Columbus, Ohio, and Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., on the brief), for appellant.

Emmet L. Murphy, Omaha, Neb. (John E. Murphy, Omaha, Neb., on the brief), for appellees.

Before JOHNSEN, RIDDICK and COLLET, Circuit Judges.

COLLET, Circuit Judge.

The primary question is whether the plaintiffs in this action, a number of guards and firemen employed at the Glenn L. Martin plant near Omaha, Nebraska, during World War II, are entitled to recover wages under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., for a 30-minute period which has been called and which we will refer to as "lunch periods". After making extensive and detailed findings of fact and stating its conclusions of law, the trial court entered judgment for plaintiffs totaling $60,980.14 as the amount of compensation due them. To that was added one-half of that amount as liquidated damages, and $15,000 attorney fees. From that judgment the defendant appeals. The facts material to the issues presented on this appeal follow.

The United States Government erected an airplane assembly and modification plant on the Fort Crook military reservation near Omaha, Nebraska. The entire area containing this plant, consisting of approximately 700 acres, was fenced and guarded. The Government entered into contracts with The Glenn L. Martin Nebraska Company for the operation of the plant and the production and modification of airplanes. In order to carry out those contracts the Martin Company hired many employees. For security reasons all were hired subject to the approval of the Government but were under the direct control and supervision of the Martin Company. During the period of time now material there were from 13,000 to 14,000 persons employed at the plant, which included these plaintiffs.

The guards were charged with the general duty of maintaining order and exercising constant vigilance for the security of the plant. Each guard had certain specific duties relating to an individual post, and a few were assigned as "rovers". Among the duties of the rovers was that of temporarily relieving guards at specific posts. The guards were divided into three shifts. The plant operated on a 24-hour-a-day schedule. From May 4, 1942, until March 6, 1943, the guards on the first shift checked in not later than 7:00 a. m. and checked out not earlier than 3:00 p. m. Those on that shift brought their lunch and were required to eat it while on duty. All of the eight hours between 7:00 a. m. and 3:00 p. m. were treated as working time and compensated for. On March 3, 1943, an order was issued by defendant, effective March 6, 1943, which was as follows:

"Effective Saturday, March 6, the Guards on the first shift will ring in by 6:45 A.M. and ring out after 3:15 P.M. This will mean that the Guards will have 8½ hours on the clock. This should be ample time to get your uniforms changed and receive orders and be on the post at 7:00 A.M.

"Guards will not be allowed to eat on their posts. They will be allowed thirty (30) minutes for lunch. The Rover in this case when on relief will check the Guard out and in during the lunch period. The Guards will be allowed to eat in the Cafeteria during the lunch period.

"The Guards on the second shift will ring in by 2:45 P.M. and ring out after 11:15 P.M. and will follow the instructions as given in the first paragraph, and the second paragraph.

"The Guards on the third shift will ring in by 10:45 P.M. and ring out after 7:15 A.M. and will follow the instructions as given in the first paragraph, and the second paragraph.

"That pertains to all three Companies."

The result of this order was that the shifts overlapped and prevented the possibility of leaving the plant unprotected during the change of shifts. The fifteen minutes prior to 7:00 a. m. and subsequent to 3:00 p. m. were compensated for and are not involved in the present controversy. The timekeeping department was directed to and did deduct the 30-minute lunch period from working time. It is the claim of the guards and firemen for pay for this 30-minute period which constitutes the basis for this action.

The defendant maintained a fire department on the plant. The firemen performed the duties usually incident to that occupation. While they were not specifically included in the above quoted order of March 3, 1943, that order was understood to apply to them as well as the guards and has been so treated throughout these proceedings. The firemen reported prior to that order and during its effective period in the same manner and on the same schedule (described above) as the guards. They were likewise paid for eight hours, and the 30-minute lunch period deducted. Their claim is, like the guards', based upon the hypothesis that the 30-minute lunch period was actually working time for which they should have been but were not compensated.

Complaints were made from time to time by the guards and firemen on account of the deduction of the 30-minute lunch periods from working time, but they continued on the job. On September 17, 1944, the defendant resumed the practice of paying the firemen and guards for the lunch period. The period of time between March 6, 1943, and September 17, 1944, is the period during which the claim for compensation for the 30-minute lunch period is made.

The trial court found that 97 F.Supp. 672:

"The employees involved in the present case were not waiting to be engaged; they had been engaged to wait. The defendant contends, however, that even though the employees were `on call\' during the lunch period that the employees did not spend the time during this period predominantly for the benefit of the employer.

* * * * * *

"The evidence in this case clearly establishes as a matter of fact that during the `lunch periods\' in question, the employees were engaged in the principal activity of the workweek and were not merely taking care of preliminary or postliminary matters."

This factual conclusion constitutes the focal point of defendant's attack upon the judgment. The errors assigned are:

I.

That the trial court erred in making the finding that "The evidence in this case clearly establishes as a matter of fact that during the `lunch periods' in question, the employees were engaged in the principal activity of the workweek and were not merely taking care of preliminary or postliminary matters", and in finding that the 30-minute lunch period constituted hours worked within the meaning of the Fair Labor Standards Act.

II.

That the trial court erred in its conclusions of law (a) that Section 2 of the Portal-to-Portal Act, 29 U.S.C.A. § 252, was inapplicable and that plaintiffs were not required to plead and prove a contract, custom or practice, to compensate them for the time worked during the lunch period; (b) in holding that plaintiffs' pleadings complied with the requirements of the Portal-to-Portal Act, although the court held that Act inapplicable; (c) in holding that the "de minimis" principle did not apply to the 30-minute lunch periods; (d) in holding that the evidence was sufficient to show that plaintiffs were required to engage in any activities during the 30-minute lunch period which would make that period working time under the Fair Labor Standards Act; (e) in allowing plaintiffs liquidated damages equal to 50 per cent of the amount found due them, because plaintiffs were entitled to no recovery at all and if they were that "defendant showed to the satisfaction of the court that its (the defendant's) action in not paying for the daily thirty-minute lunch periods was in good faith and that it had reasonable grounds for believing that its failure to pay was not a violation of the Fair Labor Standards Act", and that the court abused its discretion in awarding liquidated damages; and (f) in allowing plaintiffs' counsel attorney fees.

We do not deem it necessary or desirable to relate in detail the facts describing the exact nature of the duties of the guards and firemen during the 30-minute lunch period upon which the trial court's finding was based that the employees were engaged in the principal activity of their work week during the 30-minute period. We have examined the record and reach the conclusion that the court's finding is amply supported by the evidence.

Much emphasis is placed by defendant upon the fact that only in comparatively few instances did the evidence show that guards or firemen were required to answer calls for fires or to quell disturbances during the 30-minute period in question. But the question was not so much whether the guards and firemen were actually regularly called upon to put down overt acts of violence, sabotage, disturbances, or to put out fires during the 30-minute period, as it was whether they were performing their regular duties during that period and were then substantially performing the duties assigned to them by their employer and were not free to follow pursuits of a purely private nature. Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 163, 89 L.Ed. 124. As the Supreme Court said in Skidmore v. Swift & Co.:

"For reasons set forth in the Armour case, 323 U.S. 126, 65 S.Ct. 165 89 L.Ed. 118 decided herewith we hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time. * * * Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged. His compensation may cover both waiting and task, or only performance of the task itself."

Although the guards were constantly obliged to prevent disturbances by their presence and vigilance, and the firemen were likewise...