Ivey v. Foremost Dairies, Civ. No. 3290.

• Decision Date: 25 August 1952
• Docket Number: Civ. No. 3290.
• Parties: IVEY et al. v. FOREMOST DAIRIES, Inc.
• Court: U.S. District Court — Western District of Louisiana

106 F. Supp. 793

IVEY et al. v. FOREMOST DAIRIES, Inc.

Civ. No. 3290.

United States District Court W. D. Louisiana, Shreveport Division.

August 25, 1952.

Frederick J. Stewart, Shreveport, La., for plaintiffs.

I. Walter Fisher, Erle Phillips, Atlanta, Ga., L. L. Lockard, Booth, Lockard & Jack, Shreveport, La., for defendant.

DAWKINS, Chief Judge.

This complaint was filed in the names of some nineteen petitioners, to wit: Jesse Ivey, Billie M. Wise, Howard J. Young, Jr., Archie H. Pollard, Lee G. Nunley, J. V. Woodall, Joseph Patero, Harvey Dunn, Luther McCollister, Paul Ivey, Loyd A. Williamson, Johnnie A. Rhodes, Riley B. Alford, P. M. Hudson, Ed Summerfield, James Cook, William People, Bonnie Humphrey, and B. F. Mitchell, all citizens of Louisiana, against Foremost Dairies, Inc., alleged to be a corporation organized under the laws of New York, with its principal and only place of business in the City of Shreveport, Louisiana. The claims are for alleged overtime under the federal Fair Labor Standards Act (called Labor Act), 29 U.S.C.A. § 201 et seq., as employees over a period of two years immediately preceding the filing of the suit on March 5, 1951.

In substance, the cause of the action is as follows:

That defendant, during the period alleged, "was engaged in commerce and interstate commerce * * * in the wholesale and retail business of manufacturing and selling various products such as ice cream, cheese, cream, butter, strawberries, orange juice, popsickles, cottage cheese, oleomargarine, eskimo pies, milk, whey, buttermilk, chocolate milk, fudge pies, the mixing of these and other products and ingredients to make and sell other products, as defined by Section 3 of the Act. Defendant purchased these products or ingredients thereof from out of the State of Louisiana, as part of their business, made and sold these and other products in Louisiana, for sale in other States and sold in interstate commerce."

"All complainants were engaged in employment for the defendant in the production of goods for commerce or working on goods for commerce directly or were employed in a closely related process or occupation essential to the production of goods for commerce, as defined by the Act, U.S. C.A. Title 29, Section 203(j)."

There is listed for each plaintiff the number of hours overtime claimed, the number of weeks and the rate of pay, to which is added the same amount as liquidated damages. They all concede they were paid the agreed wage for the full time worked, but are demanding extra pay for overtime in excess of forty hours per week. The total amount claimed for overtime is the sum of $11,025.91, to which is added a like amount of damages, making a total of $22,051.82, plus $7,000 attorney's fees, a grand total of $29,051.82.

In its answer, defendant denied generally most of the allegations of the complaint, but admitted "during the period covered by this complaint, it did import shipments from outside the State including condensed milk, cream and other products", and that some thirteen of the plaintiffs "did load same onto defendant's trucks for delivery of same to defendant's plant, and said complainants did exercise judgment and discretion in loading said trucks so that the trucks could be safely operated", and that the Labor Act did not apply to this group for the reason they were exempt and subject to the jurisdiction of the Interstate Commerce Act (Sec. 204 of the Motor Carrier Act of 1935 49 U.S.C.A. § 304); and further, that some of these thirteen, as well as others, were exempt as having performed only services connected with the "first processing" operation, which are likewise excluded by the terms of the Labor Act itself.

Defendant further answered as follows:

"Further answering, defendant shows that during the period covered by the complaints, it did ship ice cream and ice cream novelties outside the State of Louisiana; that the sales in interstate commerce were not regular and recurring sales; that complainants work involving the production of goods for interstate commerce, within the meaning of the Fair Labor Standards Act was irregular and constituted less than 1% of the total time worked, such sales being set forth in detail on Exhibit A annexed hereto and made a part hereof; under these circumstances the deminimis doctrine is applicable and bars coverage under the Fair Labor Standards Act. * * *

"That during all the period of time covered by this complaint, defendant shows that all complainants worked under a formal written contract, entered into between the defendant and the union, representing complainants and all of defendant's employees; that the negotiations for the contract were conducted in protracted sessions and complainants were fully represented and complainants did vote for and accept the said contract and they have been more than paid the amounts stipulated in the said contract; that it was at the insistence of the union that a fifty-four hour week was provided for; that the application of the Wage and Hour Law to the creamery field, as engaged in by defendant, is difficult, vague and uncertain; that there is a scarcity of jurisprudence, and defendant honestly thought, and had confirmation and assurances from the union, that its decision was correct in that the Wage and Hour Law did not apply to defendant's operation as conducted by it during the period in question."

On November 2, 1951, the following complainants were dismissed from the case at their request, to wit: P. M. Hudson, J. V. Woodall, Howard J. Young, Jr., Willie Peoples, James Cook, E. D. Summerfield, Bonnie Humphrey, J. A. Patero and Johnny A. Rhodes.

The nature of the case is such that there has been much confusion in the pleadings, the trial proceedings and oral argument, which has continued into the briefs, with more or less haphazard discussions of the evidence dealing with each complainant, misspelling of names, interspersing of law with the facts, without orderly arrangement, and long quotations from decisions, running into seventy-five pages, legal cap, for the plaintiffs and about fifty-five pages for the defendant. This manner of presenting the case has added unduly a great deal of extra labor on the part of the court, which could have been minimized by first classifying the claimants with respect to their duties as employees of plaintiff, briefly reciting counsel's contentions as to the facts (as to which there is not a great deal of dispute), giving reference to the pages of the record and providing the brief with an index which would permit the ready location of matters dealing with the individual claimants. This could have been followed by a citation and discussion of the law as to each class, including the cases, without such extensive quotations, mainly by plaintiffs' counsel, together with an index of that law. Such a course would have saved much time and the court much labor in searching through briefs and the record, the latter having only an index of the names of the witnesses, whether for the plaintiffs or the defendant, and a list of the exhibits.

After much effort, the court is able to state the contentions as follows:

It is claimed that all of the complainants, during the two years, worked the entire one hundred four weeks preceding the filing of the suit and are all entitled to the overtime. On the other hand, defendant asserts that B. F. Mitchell, Riley B. Alford, Harvey Dunn, Luther McCollister, Jesse Ivey, Paul Ivey, Billy M. Wise, Archie H. Pollard, Lee G. Nunley, and Loyd A. Williamson fall under the jurisdiction of the Interstate Commerce Commission by virtue of Act 204 of the Moter Carrier Act of 1935, which excludes them from the Labor Act, and that Riley B. Alford and Billy M. Wise were engaged in duties connected only with the "first processing" of the defendant's products, which also excluded them from the Labor Act. In the alternative, defendant pleads good faith to relieve it from the claims for liquidated damages.

As to those alleged to fall within the scope of the Interstate Commerce Commission's authority, defendant contends that each and all performed work in either unloading material and supplies or loading goods produced by defendant for shipment in interstate commerce, and in the case of Ennis Barrett, the servicing of...