Mortenson v. Western Light & Telephone Co.

• Decision Date: 10 November 1941
• Docket Number: No. 42.,42.
• Citation: 42 F. Supp. 319
• Parties: MORTENSON v. WESTERN LIGHT & TELEPHONE CO.
• Court: U.S. District Court — Southern District of Iowa

42 F. Supp. 319

MORTENSON v. WESTERN LIGHT & TELEPHONE CO.

No. 42.

District Court, S. D. Iowa, W. D.

November 10, 1941.

J. Arthur Williams, of Council Bluffs, Iowa and R. B. Hasselquist, of Omaha, Neb., for plaintiff.

Karl F. Geiser and Oscar E. Johnson (of Tinley, Mitchell, Ross, Everest & Geiser), both of Council Bluffs, Iowa, for defendant.

DEWEY, District Judge.

This action was brought to recover under the provisions of the Fair Labor Standards Act 1938, 29 U.S.C.A. § 201 et seq.

The action came on for hearing in open court at Council Bluffs, Iowa, on its merits on the 22nd day of October, 1941, and the same was submitted upon written briefs.

The Issues.

The defendant is a corporation engaged in the business of owning and operating a telephone system in the State of Iowa and the plaintiff was employed by the defendant as manager at Dows City and Charter Oak, Iowa. He was manager and had charge of the maintenance and operation of the two plants and did practically all of the maintenance labor himself, but in cases of emergency and where extra employment was needed he had authority to engage such labor as was necessary to carry on the work. He was employed at a wage of $100 a month. He claimed that from October 29, 1938, to March 21, 1941, he put in more hours than was permitted by the above Act and that the aggregate amount of overtime unpaid during such period totalled $593.62.

1st. Plaintiff has failed to establish that he did the work as claimed by him in his petition.

The evidence establishes that the plaintiff kept his records at his home where he maintained a room with a desk and papers and that he did work thereon in the evenings. Part of his duties was to make out daily reports; one, being a record of the time he had worked during that day, and the other, a report showing the amount and kind of material that had been used.

All of the daily work reports, material reports, and payrolls were signed or authorized to be signed by the plaintiff. None of them showed any overtime work for which the recovery is now sought. After the Fair Labor Standards Act went into effect the plaintiff began to keep a secret report of his own as to the time that he had put in at his home in the evenings, and it is upon this secret accounting that he now seeks a recovery. By secret accounting is meant that it was kept by him privately and was never revealed to his employer until after his relations with the defendant company were severed and the company at no time knew that he was claiming to be working over hours and he never made any statement to them to that effect prior to his leaving the company.

As manager of the plant he planned and controlled the time for his own work and the fact that he worked at times outside of the ordinary work period would not in and of itself prove that he had worked overtime. His own evidence does not satisfactorily establish that he could not have done this work in the daytime if he had cared to do so.

The statements of the plaintiff that his duties required work in the evenings is more than offset by the evidence of Mr. Cue, the manager of the plants since the plaintiff quit on or about March 1, 1941, that he has had no trouble in doing all the work, including the making of reports, without any overtime.

Plaintiff does not go into specific details as to the nature of the daily work that kept him from having time to make out his daily reports and other accounting work within the prescribed hours made necessary by the Act.

His testimony in this regard is impeached in several particulars and I am satisfied that if his work was so heavy that he could not finish in the daytime that the amount of overtime work is so speculative and uncertain from the evidence that a proper basis for determination of such overtime, if any there was, cannot be determined with any degree of certainty.

Taking his evidence in connection with his regular signed statements made daily as to the amount of his work, and the entire evidence in the case, I am satisfied that the plaintiff has not met the requirement that he establish such overtime work by a preponderance of the evidence.

2nd. The plaintiff has not established that the work which he claims in his petition to have done was work that was ordered, suffered, required, or permitted by his employer to be done outside of regular work hours or as overtime work.

Interpretative Bulletin No. 13, received in evidence, defines what constitutes the hours worked by an employee. It provides: "As a general rule, hours worked will include all time during which an employee is required to be on duty or to be on the employer's premises or to be at a piece work place, and all time during which an employee is suffered or permitted to work whether or not he is required to do so."

Plaintiff claims that he did not report the time employed in making out his daily reports because he understood from...