Manosky v. Bethlehem-Hingham Shipyard

• Decision Date: 09 November 1949
• Docket Number: No. 4424.,4424.
• Citation: 177 F.2d 529
• Parties: MANOSKY et al. v. BETHLEHEM-HINGHAM SHIPYARD, Inc.
• Court: U.S. Court of Appeals — First Circuit

177 F.2d 529 (1949)

MANOSKY et al. v. BETHLEHEM-HINGHAM SHIPYARD, Inc.

No. 4424.

United States Court of Appeals First Circuit.

November 9, 1949.

Nyman H. Kolodny, Boston, Mass., for appellants.

Claude R. Branch, Boston, Mass. (Harold R. Medina, Jr., New York City, on the brief), for appellee.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.

MAGRUDER, Chief Judge.

On this appeal, the main question is as to the sufficiency of a complaint under the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq.; specifically whether, in order to come within the limiting provisions of § 2 of the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S.C.A. § 252, it was enough to allege in general terms, in the language of the Act, that the activities for which overtime compensation was claimed were compensable by express provision of a written or nonwritten contract, or by a prevailing custom or practice not inconsistent with any such contract. We think the answer to this question is in the affirmative, and that the district court was in error in granting defendant's motion to dismiss.

There is also a question as to the accessory or pendent jurisdiction of the federal court, having jurisdiction of a case because it arises under a federal statute, to adjudicate a related nonfederal claim as to which there existed no independent basis of federal jurisdiction.

The original complaint, which embraced the separate claims of two employees of defendant, Manosky and Sheppard, was filed on December 26, 1946. Diversity of citizenship was not alleged, but there were claims stated for overtime compensation and liquidated damages pursuant to § 16(b) of the Fair Labor Standards Act, an "Act of Congress regulating commerce", so that the court below had jurisdiction under 28 U.S.C.A. § 41(8) (1946 Ed.), now 28 U.S.C.A. § 1337, irrespective of the value of the matter in controversy. Consolidated Timber Co. v. Womack, 9 Cir., 1942, 132 F.2d 101, 104. It was alleged that from and after 1942 defendant has been continuously engaged in the business of manufacturing ships and marine equipment at Hingham, Massachusetts; that its products upon completion were shipped and transported in interstate commerce; that during the years 1942 to 1945 defendant engaged Manosky and Sheppard as mechanics in said business; that plaintiff Sheppard, during the time of his employment as aforesaid, to wit, at various times between December 1, 1942, and July 1, 1945, "worked a great number of workweeks longer than forty (40) hours and has not received compensation for the excess of such workweeks longer than forty (40) hours in whole or in any part, and for such overtime said Sheppard is entitled to recover in this action at the rate of one and one-half times the regular hourly rate at which he was employed; and such unpaid compensation for such overtime amounts to at least two thousand ($2000) dollars, and perhaps more, and in addition thereto the same amount as liquidated damages." A claim for statutory overtime compensation on behalf of plaintiff Manosky was also stated in similar terms. The complaint further alleged that "plaintiffs are unable to state at the present time with more exactness the amounts which they are respectively entitled to recover, as aforesaid, because all records, books, accounts and papers relating thereto are retained by the defendant and kept in its possession, and the plaintiffs have no access thereto."

The foregoing allegations stated a good claim under the Fair Labor Standards Act. Section 7(a) of that Act provides in effect that any employee who is engaged in interstate commerce or in the production of goods for interstate commerce (the latter phrase by definition — § 3 (j) — including any process or occupation necessary to the production of goods for commerce), and who is employed for a workweek longer than 40 hours, shall be paid compensation by his employer for such excess hours "at a rate not less than one and one-half times the regular rate at which he is employed." Section 16(b) provides that an employer who violates the overtime provisions of § 7(a) shall be liable to the employee for the amount of the statutory overtime compensation plus an additional equal amount as liquidated damages, and that action to recover such liability may be maintained "in any court of competent jurisdiction". It is true, the complaint did not in so many words allege that Manosky and Sheppard were engaged in the production of goods for interstate commerce. But this is not fatal. Castaing v. Puerto Rican American Sugar Refinery, Inc., 1 Cir., 1944, 145 F.2d 403. As stated in 2 Moore's Federal Practice (2d Ed.) par. 8.13, p. 1653, "the courts have ruled time and again that a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient." To the same effect see Stratton v. Farmers Produce Co., Inc., 8 Cir., 1943, 134 F.2d 825, 827; Continental Collieries, Inc. v. Shober, 3 Cir., 1942, 130 F.2d 631, 635; Dennis v. Village of Tonka Bay, 8 Cir., 1945, 151 F.2d 411, 412; Clyde v. Broderick, 10 Cir., 1944, 144 F.2d 348, 351. In the present case, proof in support of the allegations of the complaint that the employees were engaged as mechanics in a plant manufacturing ships and marine equipment destined for interstate commerce would, indeed, almost inevitably establish that they were engaged "in the production of goods for commerce" within the meaning of the Act. The pleading in this particular is certainly sufficient as against a motion to dismiss.

On May 14, 1947, while the original complaint was pending, the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq., became law. As is well known, the Act was an aftermath of the decision of the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515. Section 2(a) of that Act provides that no employer shall be subject to any liability under the Fair Labor Standards Acts of 1938 (in any action or proceeding commenced prior to or on or after May 14, 1947), on account of the failure of such employer to pay an employee overtime compensation, for or on account of an activity of an employee engaged in prior to May 14, 1947, "except an activity which was compensable by either —

"(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or

"(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer."

Section 2(b) provides that for purposes of subsection (a) "an activity shall be considered as compensable under such contract provision or such custom or practice only when it was engaged in during the portion of the day with respect to which it was so made compensable."

Apparently having in mind the possibility that this substantive provision of § 2(a) and (b), in its retroactive application, might be held unconstitutional under the Fifth Amendment as a taking away without due process of law of rights already vested, Congress included in the Portal-to-Portal Act a further provision cast in jurisdictional terms. Section 2(d) provides that no court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, "shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after the date of the enactment of this Act, to enforce liability or impose punishment for or on account of the failure of the employer to pay * * * overtime compensation under the Fair Labor Standards Act of 1938, as amended, * * * to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section." But, as pointed out in Battaglia v. General Motors Corp., 2 Cir., 1948, 169 F.2d 254, certiorari denied 1948, 335 U.S. 887, 69 S.Ct. 236, the constitutional infirmity, if any such existed, could not be circumvented by the aforesaid jurisdictional provision, and the provisions of § 2(a) and § 2(d) "will stand or fall together." 169 F.2d at page 257. The point has become academic, since it may now be taken as settled that § 2(a) is constitutional. Battaglia v. General Motors Corp, supra; Thomas v. Carnegie-Illinois Steel Corp., 3 Cir., 1949, 174 F.2d 711, and cases cited.

Since under the Portal-to-Portal Act an employer is liable for statutory overtime compensation only in respect of activities which were compensable by contract or custom, it follows that a complaint for overtime compensation which was filed prior to May 14, 1947, even though it was sufficient under the law as it then stood, became after that date subject to a motion to dismiss for failure to state a claim upon which relief could be granted, in the absence of amendment of the complaint to allege that the activities for which overtime compensation was claimed were compensable by contract or custom as provided in the Portal-to-Portal Act. Holland v. General Motors Corp., D.C.W.D.N.Y.1947, 75 F.Supp. 274, affirmed sub nom. Battaglia v. General Motors Corp., supra. This consequence would follow from § 2(a) of the Portal-to-Portal Act even without the aid of § 2(d). See Seese v. Bethlehem Steel Co., D.C.Md.1947, 74 F.Supp. 412, 416, affirmed 4 Cir., ...