Jackson v. AIR REDUCTION COMPANY

• Decision Date: 18 October 1968
• Docket Number: No. 17830.,17830.
• Citation: 402 F.2d 521
• Parties: Bennie W. JACKSON, et al., Plaintiffs-Appellants, v. AIR REDUCTION COMPANY, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

402 F.2d 521 (1968)

Bennie W. JACKSON, et al., Plaintiffs-Appellants, v. AIR REDUCTION COMPANY, Inc., Defendant-Appellee.

No. 17830.

United States Court of Appeals Sixth Circuit.

October 18, 1968.

John P. Sandidge, Louisville, Ky., for appellants; Woodward, Hobson & Fulton, Louisville, Ky., on brief.

Hubert T. Willis, Louisville, Ky., for appellee; W. Bruce Baird, Louisville, Ky., Arthur P. Rogers, New York City, on brief; Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, Ky., of counsel.

Before WEICK, Chief Judge, McCREE, Circuit Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Bennie W. Jackson and fifty other employees of Air Reduction Company, Inc. brought an action, under the Fair Labor Standards Act, Title 29 U.S.C.A. Secs. 201-219, against the Company to recover overtime compensation. From a judgment of the District Court, dismissing the action, the employees appeal.

Appellee company has a plant on Bells Lane in Jefferson County, near Louisville, Kentucky. There, through the use of very high temperatures in electric furnaces, coke, by the application and admixture of lime briquettes, is converted into calcium carbide, which is then converted into acetylene gas for sale and conveyance by pipeline in the making of synthetic rubbers.

It appears that shortly after the construction of the Company's plant in 1942, there was instituted, beginning in 1943, a system of early reporting and early relief of certain of the Company's employees, and that this system was instituted at the insistence of the barge and acetylene plant employees — as distinguished from the carbide department and other phases of manufacturing — solely for their personal convenience. From 1943 until January 21, 1965, this system was maintained at the behest of the named employees.

The system of early reporting to work, and early relief, came about in order to let the employees get to their lockers at the conclusion of their workday, wash up, change their clothes, and do whatever they wanted in order to be able to clock out exactly on the hour of twelve midnight. This was for the purpose of enabling the employees to catch the midnight bus, since at the time the system was instituted, gasoline was rationed because of the war. The evidence is, generally, to the effect that the employees were permitted to punch in at twelve or fourteen minutes before the hour of 4:00 P.M., and to check out at twelve or fourteen minutes before 12:00 midnight. This system continued for twenty-two years at the request of the employees, even after the war and gasoline rationing, because the men preferred that method of punching in and checking out.

However, on January 21, 1965, the Wage and Hour Division of the Department of Labor conducted an investigation of the Company with regard to the early reporting for work and the early relief. The exactitude of the fourteen minutes early reporting, and the fourteen minutes of early relief is a little vague in certain instances, in some cases the time appearing, on various days, with some employees, to be twelve minutes instead of fourteen minutes, and in different instances, other divergencies not, however, continuous or of the same duration. Also, the early punching in and early relief, instead of punching in on the hour and being relieved on the hour, obviously called for examination by the Wage and Hour Division with regard to what total hourly work was performed by the employees, and whether overtime pay was involved.

After the Wage and Hour Division had conducted its investigation of appellee company with respect to the system of allowing early reporting for work, and early relief — and without any adverse action against the Company or criticism of its conduct — the Company evidently came to the conclusion that in order to avoid any future uncertainty with regard to these methods of operation, it would discontinue the practice of early reporting for work by the employees, and early relief; and on January 21, 1965, this practice was discontinued, so that now the employees are on the Company's premises only about eight hours a day, except for a minute or two, and are paid for the eight hours, and there is no problem with the records and no possibility of complaint by the Wage and Hour Division or by the employees.

When the above-mentioned practice was discontinued, the employees were disappointed, and all of them wished to return to the former system. No one at the time had any complaints about the practice, or any question or claim for extra pay resulting from the practice, which, it...