Missel v. Overnight Motor Transp. Co.

• Decision Date: 28 July 1941
• Docket Number: Civ. No. 901.
• Citation: 40 F. Supp. 174
• Parties: MISSEL v. OVERNIGHT MOTOR TRANSP. CO., Inc.
• Court: U.S. District Court — District of Maryland

40 F. Supp. 174

MISSEL v. OVERNIGHT MOTOR TRANSP. CO., Inc.

Civ. No. 901.

District Court, D. Maryland.

July 28, 1941.

William O. Tydings and George A. Mahone, both of Baltimore, Md., for plaintiff.

John R. Norris and Clayton W. Daneker, both of Baltimore, Md., for defendant.

J. Ninian Beall, of Washington, D. C., for American Trucking Ass'ns, Inc.

COLEMAN, District Judge.

This is a suit brought in reliance upon the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201 to 219, inclusive, by the plaintiff, an employee of the defendant, to recover additional wages or salary alleged to be due him, together with penalties, attorney's fee and costs.

It appears from the stipulation of facts filed in the case that the plaintiff was employed by the defendant, a common carrier of freight in interstate commerce by motor vehicle, as a rate clerk, his duties also embracing at times the receipt and disbursement of cash freight revenue, and the dispatching of defendant's trucks.

The period of employment here involved is approximately two years, from October 24, 1938, to October 19, 1940. Prior to November 1, 1938, plaintiff received a salary of $23 a week plus $2.50 per week allowance for supper money, or a total of $25.50; but from the latter date until October 19, 1940, when his employment with the defendant ceased, he received a salary of $25 per week plus the $2.50 allowance, or a total of $27.50 per week. It is conceded that the supper money allowance is properly to be treated as part of plaintiff's wages in interpreting his rights under the Act. Section 3(m), 29 U.S.C.A. § 203(m). His contract of employment is not evidenced by any writing. The company kept no record of the number of hours that plaintiff worked during the period here involved prior to June 14, 1940, since it had been decided by the District Court for the District of Columbia that employees such as the plaintiff were not subject to the provisions of the Fair Labor Standards Act (American Trucking Associations v. United States, D. C., 31 F.Supp. 35), and the Supreme Court had not yet reversed this decision which it did on May 27, 1940. See United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 1069, 84 L.Ed. 1345. The plaintiff, however, did keep an account of the hours he worked for thirty weeks (not all consecutive) between September, 1939 and October, 1940, that is, for less than one-third of the total period of plaintiff's employment. This data shows that during this period of thirty weeks, plaintiff worked on an average of sixty-five hours a week. But it also appears that plaintiff was hired to work for no specific number of hours per day or week; that his periods of work varied greatly from day to day; that he regulated his on-duty hours according to his own judgment as to what was necessary; that his work weeks ended on Thursday; that he was paid his weekly salary regardless of absent time; that for at least two work weeks during the period from October 24, 1938, to October 23, 1939, he was on duty as long as eighty hours, and that in at least three of the weeks during the period from October 23, 1939, until he left the Company, namely, October 19, 1940, he was on duty as much as seventy-five hours.

Since, as above explained, plaintiff has only a partial record of the hours he claims to have worked, he has submitted figures for only a portion of what he claims to be due him amounting to $604.90 but approximates the total at $1,700. He also claims an additional amount as liquidated damages equal to such unpaid compensation as may be found to be due him, making the total claimed as salary or wages approximately $3,400, together with reasonable attorney's fee and costs of the action, relying upon the provisions of section 16(b) of the Act, 29 U.S.C.A. § 216(b).

This case was previously before the Court on a motion of the defendant to dismiss the bill of complaint, on the ground that this Court had no jurisdiction to determine, in advance of a ruling by the Interstate Commerce Commission, whether the plaintiff is one whose activities affect the safety of operation of interstate motor vehicles, within the meaning of Sec. 13(b) (1) of the Fair Labor Standards Act, 29 U.S.C.A. § 213(b) (1), exempting employees with respect to whom the Commission has power to establish requirements concerning qualifications and maximum hours for service. This section is as follows: "The provisions of section 207 fixing maximum hours of work shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; * * *."

49 U.S.C.A. § 304(a) (1) and (2) which is part of the Motor Carrier Act of 1935, provides as follows:

"Powers and duties generally. It shall be the duty of the Commission —

"(1) To regulate common carriers by motor vehicle as provided in this chapter, and to that end, the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.

"(2) To regulate contract carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment."

We overruled defendant's motion, since the above-quoted exemption in Section 13(b) (1) of the Fair Labor Standards Act embraces only those employees with respect to whom the Interstate Commerce Commission "has power" to establish requirements as to qualifications and maximum hours of service; since the Supreme Court, in United States v. American Trucking Associations, supra, limited such "power" to those employees "whose activities affect the safety of operation"; and since plaintiff's activities cannot be said to "affect the safety of operation" because they have only a most remote relation to the actual movement of motor vehicles falling under the jurisdiction of the Interstate Commerce Commission. Missel v. Overnight Motor Transportation Co., D. C., 36 F.Supp. 980.

Following our disposition of the motion to dismiss the bill of complaint, the defendant answered and the case is now before us on its merits. American Trucking Associations, Inc., was permitted to intervene as amicus curiæ, it being the national trade association of the trucking industry, and the defendant being one of its members.

The pertinent provisions of the Fair Labor Standards Act are the following: Sec. 6(a) and (b):

"(a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates —

"(1) during the first year from the effective date of this section, not less than 25 cents an hour,

"(2) during the next six years from such date, not less than 30 cents an hour,

"(3) after the expiration of seven years from such date, not less than 40 cents an hour, or the rate (not less than 30 cents an hour) prescribed in the applicable order of the Administrator issued under section 208, whichever is lower, and

"(4) at any time after the effective date of this section, not less than the rate (not in excess of 40 cents an hour) prescribed in the applicable order of the Administrator issued under section 208.

* * * * * *

"(b) This section shall take effect upon the expiration of one hundred and twenty days from the date of enactment of this chapter. * * *" 29 U.S.C.A. § 206(a) and (b).

Sec. 7(a):

"(a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce —

"(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,

"(2) for a workweek longer than forty-two hours during the second year from such date, or

"(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. * * *" 29 U.S.C.A. § 207(a).

It is conceded that at all times during the period of employment here in question both the $25.50 and the $27.50 weekly rate which plaintiff received was greater than the total minimum wages prescribed by the Act for the maximum hours for the work weeks as provided in the Act, plus one and one-half times such minimum wages for all hours which he worked in excess of such stipulated maximum hours. Nevertheless, plaintiff contends that under the Act the amount of compensation due him by the terms of his employment by the defendant for all overtime must be determined by one and one-half times a rate found by dividing his weekly salary (1) by the number of hours actually worked per week; or (2) by the statutory work week hours. Plaintiff further asserts that since data is lacking with respect to the total number of hours in excess of the statutory maximums actually worked by him during most of the period in question, the Court should strike an average in applying the first of the aforegoing formulae. In short, while plaintiff had agreed to work, and did work for almost two years after the Act became effective at the annual compensation of $1,430 or $2,860 for the two year period here in question, he now claims he should be paid retroactively $3,400 additional, — in all considerably more than double his agreed and accepted compensation.

As illustrative of the two methods of computation urged as alternates by the plaintiff, we will take...