Mitchell v. Floyd Pappin & Son

• Decision Date: 19 April 1954
• Docket Number: No. 1487.,1487.
• Citation: 122 F. Supp. 755
• Parties: MITCHELL, Secretary of Labor v. FLOYD PAPPIN & SON, Inc.
• Court: U.S. District Court — District of Montana

122 F. Supp. 755

MITCHELL, Secretary of Labor v. FLOYD PAPPIN & SON, Inc.

No. 1487.

United States District Court, D. Montana, Great Falls Division.

April 19, 1954.

Kenneth C. Robertson, Regional Atty., Dept. of Labor, James F. Scott, Asst. Regional Atty., Dept. of Labor San Francisco, Cal., and Henry N. Routzohn, Solicitor, U.S.D.L. Washington, D. C., for plaintiff.

H. C. Hall, E. C. Alexander and Howard C. Burton, Great Falls, Mont., for defendant.

PRAY, Chief Judge.

The question before the court in the above entitled cause at this time is on the motion by plaintiff for the dismissal of defendant's counterclaim, which was submitted on briefs filed by counsel for the respective parties.

This action was brought by the plaintiff, Martin P. Durkin, Secretary of Labor, United States Department of Labor, on April 9, 1953, to recover from the defendant unpaid overtime compensation alleged to be due its employee, Vernon J. Gleason, under the provisions of the Fair Labor Standards Act of 1938, as amended, herein referred to as the Act.

It appears that employees engaged in the production of goods for interstate commerce must be compensated at a rate not less than one and one-half times their regular rate of pay for all hours worked in excess of forty hours per week, Section 7 of Act, and that when any written request is filed by any employee with the Administrator of the Wage and Hour Division, United States Department of Labor, claiming unpaid overtime compensation under Section 7 of the Act, the Administrator may bring an action in any court of competent jurisdiction to recover the amount of such claim, Section 16(c) of the Act.

Plaintiff calls attention to the transfer of the functions of the Administrator of the Wage and Hour Division, United States Department of Labor, under the Fair Labor Standards Act, to the Secretary of Labor, Reorganization Act of 1949, 5 U.S.C.A. § 133z and that jurisdiction of this action is conferred by Section 16(c) of the Act, and by Title 28 U.S.C. § 1337. The above-named plaintiff, Martin P. Durkin, was succeeded by James P. Mitchell, as Secretary of Labor, who has been substituted as party plaintiff herein.

Plaintiff states that Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C., to the extent quoted, is applicable: "(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim * * *.

"(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim."

The complaint in substance alleges that defendant conducted a ready to mix cement plant in Great Falls, Cascade County, Montana, and gravel pits near Vaughn and Cascade in said County, where it engaged in the production, sale and distribution of sand, gravel and ready mix cement; that from April 6, 1951 through July 9, 1952, defendant employed Vernon J. Gleason at its said places and in connection with its production of sand, gravel and ready mix cement for interstate commerce within the meaning of the Act, and that it employed Mr. Gleason in excess of forty hours during certain weeks without payment of the statutory overtime compensation and that said Gleason has filed with the plaintiff a written request to bring this action. Judgment is sought in the sum of $686.12 for the wage underpayments plus interest and costs.

The counterclaim alleges, among other things, that Vernon J. Gleason was employed by defendant for many years preceding plaintiff's claim and was a member of the International Union of Operating Engineers, Local No. 913, Great Falls, Montana, and that "defendant maintained a collective bargaining relationship with said Union".

Then follows a description of the relationship aforesaid as set out in plaintiff's brief, which counsel for defendant says is substantially correct. Defendant asserts as a set-off against plaintiff's claim the sum of $706.94, with interest thereon, which it claims is due from said Gleason.

Plaintiff asserts that the court lacks jurisdiction over defendant's counterclaim, which is permissive and requires independent grounds of federal jurisdiction.

To go further into detail as set forth by defendant: "Defendant and Local Union No. 913, since the inception of their collective bargaining relationship, have entered into no formal, written agreements, but, during all of such time have had an informal, oral understanding to the effect that defendant would follow and comply with the terms and conditions of the labor agreement pertinent to heavy and highway construction negotiated between the International Union of Operating Engineers on behalf of all of its local unions and their component members in the State of Montana, and the Montana Contractors' Association, Inc., acting in behalf of its component members who employ personnel to perform work falling within the jurisdiction of the union."

The gist of the counterclaim seems to be that defendant never had a copy of the agreement but "relied upon the officials of Local Union No. 913 or the members thereof employed by defendant" to advise as to its terms; that Mr. Gleason advised the defendant that "it was his understanding", according to the allegations of the counterclaim, "that an agreement had been made providing that each employee working outside the city limits was to be furnished transportation by his employer and in addition, as travel pay, was to be given one hour's pay per day at the straight-time hourly rate under which such employees normally worked", and that "relying upon Gleason's representation that such contract clause had been negotiated" it furnished Gleason during the period covered by plaintiff's claim with transportation and...