Mitchell v. Greinetz, 5287.

• Decision Date: 24 July 1956
• Docket Number: No. 5287.,5287.
• Citation: 235 F.2d 621
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Phil GREINETZ, doing business as Los Wigwam Weavers, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

235 F.2d 621 (1956)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Phil GREINETZ, doing business as Los Wigwam Weavers, Appellee.

No. 5287.

United States Court of Appeals Tenth Circuit.

July 24, 1956.

Bessie Margolin, Asst. Solicitor, Washington, D. C. (Stuart Rothman, Sol., Sylvia S. Ellison, and Paul M. Cadra, Washington, D. C., and Harper Barnes, Regional Attorney, Kansas City, Mo., on the brief), for appellant.

Walter F. Scherer, Denver, Colo., for appellee.

Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

This action was brought in the United States District Court for the District of Colorado against Phil Greinetz,¹ doing business as Los Wigwam Weavers, by the Secretary of Labor under Section 17 of the Fair Labor Standards Act,² 29 U.S.C.A. § 217, to enjoin appellee from violating the minimum wage requirement provisions of the Act, and from shipping in interstate commerce goods produced by certain workers. The alleged minimum wage violations resulted from the employer's failure to pay employees for half an hour per day when they are required to take fifteen minute rest periods during their regularly scheduled morning and afternoon working hours. The trial court concluded that the two periods were not compensable and entered judgment for the employer. This appeal challenges the correctness of that ruling.

There is no dispute in the basic facts and only the permissible conclusions to be drawn therefrom are in dispute. The employer, doing business as the Los Wigwam Weavers, is engaged in the manufacture of neckties, mufflers and stoles from cloth produced on hand-operated looms in his establishment at Denver, Colorado. Most of the product is shipped in interstate commerce, and admittedly all of his employees are engaged in the production of goods for commerce within the meaning of the Act. Compensation for the employees in controversy is on a piece work basis, and if the required rest period must be calculated as compensable time the wages of a number of the employees did not equal the statutory minimum wage of seventy-five cents per hour in numerous workweeks during the two years preceding the complaint below.

It is admitted that the work of these employees is intricate and fatiguing. The cloth is produced on primitive hand-operated looms. The employee must operate treadles with her feet and manually throw shuttles containing the thread back and forth through the threads or warp parted by the foot pedal movement. A number of different shuttles may be used in weaving a single piece of cloth. By the employer's admission, this is a monotonous and tiring operation after a few hours because of the coordination required and the constant attention which the operator must give to the loom.

Prior to World War II, the weaving was done by young men, but when the war effort took nearly all young men, the employer had to look elsewhere for a supply of labor. Older men were tried but could not handle the job; finally it was found that women had the coordination and skills required. At this time the operation was on a regular eight hour day. But, according to the employer's testimony, he "noticed that at night the women would go home and they would just be so tired, their cheeks would be sunk in. And then when some of the same women would come to work in the morning, they were still tired * * * it wasn't very long before they broke down. First, they'd catch cold, then something else happened, and, well, it was just bad all around, bad for them as well as being bad for us." Therefore, after a conference with the workers and at the workers' suggestion, it was decided to give the employees a rest period of fifteen minutes at midmorning and midafternoon so they could get away from the looms and relax with a soft drink or a cup of coffee. At first the rest periods were optional, but upon observing the beneficial effects the employer made them compulsory. These thirty minutes were not considered as a part of the working day, and when a worker's piece rate compensation did not equal the seventy-five cents per hour minimum wage the employer in making up the difference would omit the rest periods in the computation. When a new employee is hired she is told of the rest periods and that she will not receive any pay for the time involved.

The employees are required to leave their work places during the rest period in order to insure that they relax; in theory they are otherwise free to do as they please during the time. In practice, however, they nearly always stay on the same premises on the same working floor, although the only facilities on that floor are the usual restrooms and a table and equipment provided by the employer to enable them to make tea or coffee. The reason they stay near their work during this period is the fact they are on the third floor of the building with no elevator and in the factory district of Denver. But undoubtedly the principal reason the employees stay on the premises is the shortness of the break time.

The employer testified in some detail regarding the beneficial effect of the rest periods upon production. He testified that the breaks and shorter hours enabled four of the women who were the poorest workers to become the best workers in the shop within two or three weeks. If the rest periods were not provided, he asserted that he would have to put on another shift to maintain production. And he testified that these women produced more in the six and one-half hour day than the young men employed before the war ever did in eight hours.

From this evidence the trial court found that the rest periods were for the mutual benefit of the employees and the employer; that the workers are told prior to their employment about the rest period and that they are not paid for it; that they must not work during the rest period and are permitted to use the time for any non-work activity they might choose; and that they have accepted the arrangement for a period of fifteen years without complaint or demand for extra compensation. The court accordingly concluded that under the special circumstances of this case the rest periods were not compensable.

Whether idle time is compensable or not is sometimes a difficult question to answer. All the cases make it clear that under certain conditions it is a part of employment time and must, therefore, be compensated. While in the main the factors which must be considered are well known, the difficulty as always comes when we undertake to apply them to a given state of facts, and because facts differ decided cases are not controlling and are helpful only as they point the way. Some of the factors to consider are whether idle time is spent predominantly for the employer's or employee's benefit, and whether the time is of sufficient duration and taken under such conditions that it is available to employees for their own use and purposes disassociated from their employment time. The cases also make it clear that the answers to these questions must be gleaned from all the facts and circumstances of each case.³

Rest periods of somewhat longer periods of time have been considered in a number of cases. Darr v. Mutual Life Insurance Company, 2 Cir., 169 F.2d 262, held that rest periods of twenty-five to forty-five minutes duration required of elevator operators were not compensable. Jimenez v. Red Star Mfg. Co., D.C., 70 F.Supp. 942, held that certain rest periods (the duration of which were not specified) were non-compensable because "of sufficient length for plaintiffs to leave the premises of defendant for their own personal purposes." So also the cases of Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118, and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct....