McComb v. CA Swanson & Sons, Civ. No. 227-46.

• Decision Date: 06 May 1948
• Docket Number: Civ. No. 227-46.
• Parties: McCOMB v. C. A. SWANSON & SONS.
• Court: U.S. District Court — District of Nebraska

77 F. Supp. 716

McCOMB v. C. A. SWANSON & SONS.

Civ. No. 227-46.

District Court, D. Nebraska, Omaha Division

May 6, 1948.

COPYRIGHT MATERIAL OMITTED

William S. Tyson, of Washington, D. C., and Reid Williams and John A. Weiss, both of Kansas City, Mo., for plaintiff.

A. C. R. Swenson, of Omaha, Neb., for defendant.

DELEHANT, District Judge.

The plaintiff, in his designated official capacity, proceeding under the jurisdictional grant of Title 29 U.S.C.A. § 217, prays for injunctive relief against the defendant, forbidding the latter's violation of Title 29 U.S.C.A. § 215, subsections (1), (2) and (5), being Section 15(a) subsections (1), (2), and (5) of The Fair Labor Standards Act of 1938, hereinafter referred to as "the Act of 1938". Substitution of William R. McComb for L. Metcalfe Walling as the Administrator-plaintiff was made during the pendency of the action, and will not be further noted. The corporate existence of, and engagement in, and production of goods for, commerce by the defendant in the operations within the action's scope are unquestioned.

Complaint was originally filed in the case on October 4, 1946. Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680, 66 S.Ct. 1187 90 L.Ed. 1515, had been decided on June 10, 1946. The complaint was harmonized, both in factual content and in legal theory, with that ruling. In general terms, it charged that the defendant in its operations since June 16, 1944, had repeatedly violated the provisions of Sections 7 and 15(a) (2) of the Act of 1938 by employing many of its employees in commerce and the production of goods for commerce for work weeks exceeding forty hours without compensating them for work in excess of forty hours per week at the statutory rate; and the provisions of sections 11(c) and 15(a) (5) by failing to make, keep, and preserve adequate and accurate records "of the hours worked each work day and each work week, with respect to many of its employees;"¹ and the provisions of section 15(a) (1) by the transportation and sale in commerce of goods in whose production employees were employed in violation of Section 7 of the Act of 1938. Upon motion therefor, confessed by the plaintiff, a Bill of Particulars was furnished in which the employees involved were limited to those working in certain departments, and which specified as the violative practices the making and keeping of employees' time records "without regard to the time spent by said employees in changing clothing and in other preparatory and necessary incidents to said employment", and upon the basis of the starting and finishing times for their work shifts rather than of the accurate total time of employment. Thereafter, and on December 12, 1946, the defendant answered, denying the violative practices charged against it.

With the action thus pending and at issue, the so-called Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq., was approved on May 14, 1947. It will hereinafter be referred to as the "Act of 1947".

On September 22, 1947 the defendant requested leave to amend its answer in such manner as to present the Act of 1947 as a defense to the complaint. One day later, the court ordered the holding on October 2, 1947 of a pretrial conference in pursuance of Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The conference was held on the appointed day. During it, leave was granted for the filing of the defendant's proposed amendment to its answer. In response to inquiries, in the course of the conference, by defendant's counsel, the plaintiff's attorneys made two supplemental and clarifying statements touching their position in the case. These were (a) that the amount of time involved in their charge of "changing clothing and * * * other preparatory and necessary incidents to said employment" was approximately twenty minutes per day per employee, and (b) that such items were compensable by reason of a custom or practice in effect at the establishment where the involved employees were employed.² Similar, and more detailed answers in writing were later made by counsel for the plaintiff in response to written interrogatories served under Rule 33 of the Federal Rules of Civil Procedure. The court has no doubt of the sufficiency of the answers to inquiries and interrogatories to present the question of "custom or practice".

On November 6, 1947, the plaintiff served, and on November 10, 1947 filed, an amended complaint and amended Bill of Particulars which essentially brought the averments of his earlier complaint and bill of particulars up to the date of the newer pleadings and amplified them in some measure. The defendant then answered those pleadings, denying any violative practices and averring facts and making denials designed to present the Act of 1947 as a special defense.

The action has been tried upon its merits and the court has had the benefit of exhaustive and thorough typewritten briefs and arguments of counsel and has carefully reviewed the evidence and examined the stenographically reported testimony of the witnesses and the exhibits.

From the pleadings — so far as they are in agreement — and from the evidence and stipulations upon the trial, the court now finds the following facts:

The evidence narrows, in some measure, the area of alleged violation. Thus, in his brief, the plaintiff correctly states that, "This case involves only the defendant's employees employed in eviscerating, canning, egg, and creamery departments of its operations in Omaha, Nebraska." To the extent that the complaint and bill of particulars may be construed as charging violations in other departments or plants of the defendant's business, it may be understood that no such issue persists in the record of the trial. Nor, despite the general allegation in the complaint of the defendant's failure to compensate its employees at overtime rates for hours worked, beyond the statutory limitations of hours for straight rate pay, is there any evidence which even tends or attempts to sustain such a charge, apart from the impact of "changing clothing and other preparatory" and after work activities.

The defendant, a Nebraska corporation, is engaged in the business of preparing for market and marketing, largely in the channels of interstate commerce, poultry, creamery products, and eggs. It prepares poultry of various kinds and in several forms, partly under its own brand, partly by contract under another food supplier's brand. It breaks eggs and processes their essential content, either canned in fluid form or reduced to powder and packaged. Its principal operations, and the only ones involved in this action, are conducted in several neighboring buildings at Omaha, Nebraska.³ As a general practice, its employees work more than forty hours per week, exclusive of the time about which this action is concerned, and are compensated as provided by law for time so worked in excess of forty hours per week.⁴

The number of the defendant's employees at Omaha in all its departments and operations, including clerical and supervisory helpers, approximates eight hundred. But the manufacturing or processing work is subject to seasonal fluctuations and the employees vary in number throughout the year, from substantially fewer than eight hundred to something more than that figure. Of the total employees, about seventy per cent are women and thirty per cent men. In the eviscerating department about one hundred fifty women and fifty men work. In the egg department the workers vary from about fifty women and ten men to one hundred women and twenty men. In the creamery department at the time of trial were some forty-five or fifty men and about fifteen or twenty women; but at the time of highest production the workers, preserving the same general ratio, are substantially more numerous. In the canning department about two hundred twenty-five women and forty men are normally employed.

Responsive to federal and (Nebraska) state requirements, and prompted also by considerations of competitive necessity and its own pride, the defendant undertakes to maintain high standards of cleanliness in its manufacturing plant and operations. Federal inspectors are constantly on duty in its establishment to assure the observance of the rules prescribed by the federal government for such plants; and they also maintain an oversight of the compliance with Nebraska's provisions. Among the federal requirements is the prescription that "aprons, frocks and other outer clothing worn by persons who handle any product shall be material that is readily cleaned, and only clean garments shall be worn."⁵ Requirement is also made for the assurance of immunity of the product to contamination by perspiration, hair, cosmetics, etc. These prescriptions are general, and their concrete application is left flexibly to the individual food processor. But that application, however achieved, must be effective.

The defendant, in the interest of cleanliness, throughout the period prescribed in the complaint, and for some time theretofore, has required and now requires the wearing by its employees of washable white uniforms in its eviscerating, canning, egg, and creamery departments. For the men in all of those departments the uniform is a coverall with buttons down the front, with this exception, that in the creamery department, an undeterminable number of men wear white T-shirts and trousers; for the women in departments other than the creamery section a bungalow apron designed without buttons and to be slipped on and removed over the head. In the creamery department the women wear an apron, or covering garment, buttoned down the front and coatlike in design. All of these uniforms, both for men and for women, are made from fairly heavy tough material. The defendant does not allow the wearing of uniforms privately designed by its employees in any of the several departments involved.

In the creamery department the employees,...