Kam Koon Wan v. EE Black, Limited

• Decision Date: 05 February 1948
• Docket Number: Civ. No. 672.
• Citation: 75 F. Supp. 553
• Parties: KAM KOON WAN et al. v. E. E. BLACK, Limited.
• Court: U.S. District Court — District of Hawaii

75 F. Supp. 553

KAM KOON WAN et al. v. E. E. BLACK, Limited.

Civ. No. 672.

District Court, Hawaii.

February 5, 1948.

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Samuel Landau, of Honolulu, T. H. (Padway, Goldberg & Previant, of Milwaukee, Wis., of counsel), for plaintiffs.

Garner Anthony, of Honolulu, T. H. (Robertson, Castle & Anthony, of Honolulu, T. H., of counsel), for defendant.

McLAUGHLIN, District Judge.

The plaintiff in this Fair Labor Standards Act case sues (29 U.S.C.A. § 216(b)) for himself and in behalf of others similarly situated to recover back wages for six years prior to Nov. 14, 1945.

After filing its second amended answer, the defendant moved for a partial summary judgment, Federal Rules of Civil Procedure, rule 56(b), 28 U.S.C.A. following section 723c. The plaintiff filed no counter-affidavits. The question for decision is therefore whether or not the pleadings and undenied affidavits disclose the existence of a genuine issue as to any material fact.

I. Briefly insofar as the questions of law raised by the motion are concerned, the situation is as follows: The defendant was a general contractor who employed the plaintiff and many others. On and prior to Dec. 7, 1941, the defendant was engaged essentially in work upon defense projects pursuant to government contracts. Martial law was declared in Hawaii on Dec. 7, and immediately the Commanding General of the Hawaiian Department, United States Army, proclaimed himself Military Governor of Hawaii and set up a prefabricated military government. (See Duncan v. Kahanamoku (White v. Steer), 1946, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; Ex parte Duncan, (D.C.Hawaii 1944, 66 F.Supp. 976; Ex parte White, D.C. Hawaii 1944, 66 F.Supp. 982; and Ex parte Spurlock, D.C.Hawaii 1944, 66 F. Supp. 997. For citations of numerous articles upon the subject see Anthony, Hawaiian Martial Law in the Supreme Court, Yale L. J. Nov. 1947.) Military government obtained in Hawaii until Oct. 24, 1944, when it was terminated by presidential proclamation (Proclamation No. 2627, 9 F.R. 12, 831).

By military order No. 38¹ as of Dec. 7 all employees of contractors and subcontractors paid out of federal funds were frozen to their jobs, their wages were also frozen, and their regular and overtime hours prescribed. This and all other military orders which will be mentioned affected the defendant and its employees, as the defendant was described and listed by the Military Governor as a government contractor or subcontractor.

Further, at all times during the existence of the military government in Hawaii whether or not a military order carried a specific penal provision — and none of the orders relating to wages and hours did — violations of military orders or of "policies of the military authorities" were punishable by a provost court² as it saw fit.

General Orders No. 91³ in March 1942 amended General Orders No. 38, which had been effective since December 7. It provided, in part, as follows:

"2. The following policy, effective 1 April 1942, governing wages, hours of work, overtime, the employment and use of labor in the Territory of Hawaii, is announced for the information and guidance of all concerned. Nothing herein shall be construed as superseding or in conflict with the provisions of the Fair Labor Standards Act of 1938, or the Walsh Healey Public Contracts Act, 41 U.S.C.A. § 35 et seq..⁴ Emphasis added.

"a. Wages.—(1) Revised Wage Schedule No. 9, U. S. Navy Contractors, Pacific Naval Air Bases, effective 1 December 1941, is hereby designated as the standard wage scale for workers engaged in work for Army and Navy agencies, their contractors and subcontractors. No person seeking employment with the above mentioned employers shall be employed at a rate less than or in excess of the standard rate for the job as listed in Revised Wage Schedule No. 9, and as same may be revised from time to time, as approved by the Military Governor.

"(2) The above provision, relative to wages, shall not apply to Federal or Territorial, and City and County of Honolulu Civil Service employees.

"b. Hours of Work and Overtime. — (1) Normal work-week on war projects in the Territory of Hawaii shall be six (6) days of eight (8) hours each.

"(2) Overtime at the rate of one and one-half the regular rate will be paid for overtime in excess of forty-four (44) hours, or in excess of eight (8) hours in any one day. The maximum hours worked in any seven (7) consecutive days shall not exceed fifty-six (56), except in cases of emergencies and with the approval of the Chief of Military or Naval Service concerned.

"(3) Work shall be so scheduled that all workers will receive one (1) day off in seven (7). This day is to be in lieu of Sunday and Sunday work per se shall not be considered overtime, and no overtime shall be paid for Sunday except when it is worked consecutively in excess of six (6) days. It is the intent of this provision to make it possible for work on war projects to be carried on seven (7) days per week, and at the same time provide that all war workers shall have one (1) day of rest out of seven (7) for the purpose of recreation and to attend to personal business.

"(4) The provisions relative to hours of work and overtime shall not apply to: (a) Federal, Territorial or City and County of Honolulu civil service employees; (b) Employees of employers mentioned in paragraph 2a above, who are in a supervisory capacity on a monthly salary basis.

"(5) The provisions of any contract with individual employees, labor unions, etc., in conflict with the provisions of this order are hereby suspended."

Thereafter from time to time alterations in this basic labor edict were made by other general orders,⁵ but as they are of no especial significance to the question of law presented here under § 9 of the Portal-to-Portal Act, 29 U.S.C.A. § 258 they will not be referred to in detail unless necessary. Suffice it for present purposes to state that this basic military control of the labor situation in Hawaii remained in effect until October 1944, notwithstanding provisions of the Fair Labor Standards Act and other federal and territorial laws to the contrary. Even the War Labor Board was prevented by the military from exercising its jurisdiction in Hawaii.

On and after the first pay period subsequent to Nov. 1, 1943, by General Order No. 40 (new series), Wage Schedule No. 9 as further revised finally enabled compliance with the Fair Labor Standards Act, as well as with the military orders.

From the affidavit of an officer of the defendant company attached to the motion for summary judgment comes the following unchallenged statements:

1. That since Nov. 10, 1943, the defendant has paid all of its employees upon the basis of time and one-half for all work in excess of 40 hours per week, except two named clerical workers. (See fourth revision of Wage Schedule No. 9 by General Orders No. 40 (new series), supra.)

2. That from Dec. 7, 1941, to Nov. 10, 1943, about 80% of defendant's work was upon government contracts.

3. That from Dec. 7, 1941, to Oct. 24, 1944, the defendant was closed by the Military Governor as a contractor and subcontractor with the federal government and was subject to the orders of the Military Governor.

4. That during said period by military order Wage Schedule No. 9 as revised from time to time dictated the hours, rates of pay, and overtime compensation which defendant could work and pay the plaintiffs, and that the defendant company was obliged under the compulsion of military order to abide by it.

5. That in good faith and reliance upon said military orders, the defendant company paid the plaintiffs in accordance therewith.

Although defendant rests its case squarely upon the military orders, even assuming them to have been invalid, it may be clarifying to mention that the Military Governor adopted Wage Schedule No. 9 from the Navy. Prior to the war this wage schedule was established by the Navy, with the approval of the Administrator of the Fair Labor Standards Act, for the Pacific Naval Air Base contractors.

From an undenied affidavit by defendant's attorney also supporting the motion, in addition to the martial law and military government facts which have been judicially noted above, comes this fact:

That Howard E. Durham, agent in Hawaii (prior to and early in the war) in charge of the Wages and Hours Division of the United States Department of Labor, in the course of his participation in the labor affairs of the military government requested a ruling of the Wages and Hours Administrator as to the applicability of the Fair Labor Standards Act to contractors and subcontractors engaged in work for agencies of the United States, and upon an unspecified date received the following radiogram:

"Howard Durham

"A General Martial Law Order would not Suspend Operation of Any or All Federal Statutes but the Martial Law Authority is Probably Empowered to Suspend Any Particular Law. In Absence of Order Suspending All or Part of F.L.S.A. Workers Performing Labor Pursuant to Martial Law Order May be Considered for Purposes of Enforcement as Government Employers (Sic) under 3 (D) and Hence Exempt.

Baird Snyder Acting Administrator".

Whether this information was made known to the Military Governor and to the defendant is not made to appear from the affidavit. In any event, the defendant makes no claim that it relied upon this radiogram. The reason for the inclusion in the attorney's affidavit of this interesting but non-usable fact is, therefore, not apparent.

II. As to the period from Nov. 10, 1943, to the date of suit Nov. 14, 1945, it is agreed by the parties that all plaintiffs within the scope of the Fair Labor Standards Act have been paid by the defendant in accordance with its provisions. A partial summary judgment for the defendant for this period may be entered. November 10, 1943, it will be recalled marked the date on and after which it was...