Neal v. Braughton, Civ. No. 525.

CourtUnited States District Courts. 8th Circuit. Western District of Arkansas
Writing for the CourtJOHN E. MILLER
Citation111 F. Supp. 775
PartiesNEAL v. BRAUGHTON et al.
Docket NumberCiv. No. 525.
Decision Date30 April 1953

111 F. Supp. 775

NEAL
v.
BRAUGHTON et al.

Civ. No. 525.

United States District Court W. D. Arkansas, Hot Springs Division.

April 30, 1953.


111 F. Supp. 776
COPYRIGHT MATERIAL OMITTED
111 F. Supp. 777
Brooks Bradley, Little Rock, Ark., for plaintiff

David L. Mallory, Marshall N. Carlisle and Lloyd E. Darnell, Hot Springs, for defendants.

JOHN E. MILLER, District Judge.

Statement.

On September 20, 1952, plaintiff filed his complaint in which he alleged that the defendants, operating as a partnership, were engaged in the manufacture and production of lumber for interstate commerce within the meaning of the Fair Labor Standards Act; that during the work weeks beginning October 26, 1950, and ending January 7, 1952, defendants employed twenty-five or more persons in the production of lumber for interstate commerce; that the Court has jurisdiction by virtue of Title 28 U.S.C. § 1337 and Title 29 U. S.C.A. § 216(b); that the defendants employed the plaintiff to night watch and to clean up around their mill; that during the period from October 26, 1950, to January 7, 1952, with the exception of one week when plaintiff was off duty, defendants employed plaintiff in their place of business for eighty-four hours each week and paid plaintiff at the rate of $150 per month; that plaintiff was entitled under the Act to a rate of pay not less than seventy-five cents per hour for the first forty hours each week, and at a rate of pay not less than $1.12½ per hour for all hours in excess of forty each week; that plaintiff should recover from the defendants the amount of $2724.50 for unpaid minimum wages and overtime compensation, an additional equal amount as liquidated damages, together with costs and a reasonable attorney's fee.

On October 9, 1952, defendants filed a motion to make more definite and certain, to which motion the plaintiff responded on October 14, 1952, and on October 15, 1952, the Court overruled defendants' motion.

Thereafter, on October 29, 1952, defendants filed their answer in which they admitted that they were operating as a partnership and were engaged in the manufacture of lumber for interstate commerce; that during the period from October 26, 1950, to January 7, 1952, some twenty-five persons, more or less, were employed by them in the processing of lumber for interstate shipment; that the Court has jurisdiction to entertain the suit; and that plaintiff was employed by them as a night watchman from October 26, 1950, to January 7, 1952. But, defendants denied that plaintiff had worked in excess of forty

111 F. Supp. 778
hours in any work week, denied that they had failed to pay him minimum wages required by law, and affirmatively stated that they paid plaintiff at the rate of $150 per month

On April 8 and 9, 1953, the case was tried to the Court without the intervention of a jury, and at the conclusion of the trial the Court requested counsel to furnish briefs in support of their respective contentions. This has now been done, and, after considering the pleadings, ore tenus testimony of the witnesses, and briefs of the parties, the Court now makes and files its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The defendants, Vernon Braughton, Harley Bates, and Raymond Bates, operate as a partnership, and during the period from October 26, 1950, to January 7, 1952, they were engaged in the production of lumber for shipment in interstate commerce and employed twenty-five or more persons, including the plaintiff, in such production.

2.

During the time from October 26, 1950, to January 7, 1952, plaintiff was employed by defendants at a salary of $150 per month. The defendants kept no record of the hours worked by plaintiff. In following this practice defendants were acting in good faith and in reliance upon advice given them by a representative of the Wage and Hour Division. Although plaintiff's salary was stated to be $150 per month, he was actually paid $75 every two weeks.

3.

Plaintiff was 68 years of age at the time he was employed by defendants to night watch and to clean up their mill. He was employed to work from 8:00 p. m. each day until 3:00 to 4:00 a. m. the next morning, seven days a week, and was allowed an hour for supper from 12:00 p. m. to 1:00 a. m. However, as a matter of fact plaintiff was to a great extent his own boss as to the hours he worked. Sometimes, especially during the winter months, he came to work early in order to clean up the mill before dark came. Often he would come to work as early as 5:00 p. m. At other times he would begin at 5:30, 6:00, 7:00 and at various other times. Usually when he came to work early, he would go home for supper sometime between 7:00 p. m. and 11:00 p. m. Also, he would often leave the mill at various times during the night for short periods of time. Frequently plaintiff did not work at all because of sickness or other reasons. At times plaintiff was seen sleeping while he was supposed to be on duty. Plaintiff ordinarily quit working and went home between 3:00 a. m. and 4:00 a. m. although occasionally he stayed later than 4:00 a. m.

4.

Defendants knew that plaintiff often began working before 8:00 p. m. and made no complaint about it since plaintiff stated that he wanted to clean the mill before dark. Plaintiff did not always take an hour off to eat from 12:00 p. m. to 1:00 a. m., but none of the defendants had any knowledge that he sometimes worked during that time. Likewise, though plaintiff was at the mill later than 4:00 a. m. occasionally, defendants had no knowledge of that fact.

Defendants had knowledge of the fact that plaintiff sometimes slept on the job, often left the mill for various periods of time, and frequently did not come to work at all. Nevertheless, defendants did not discharge him, partly because they felt sorry for him and partly because they did not want to antagonize plaintiff's brother who also worked for them and who is and was an excellent worker. However, defendants did "dock" plaintiff a few nights pay for not coming to work.

5.

In January, 1951, plaintiff was off for two weeks and was not paid for this period. Also, at other times he was docked a a day or two at a time totaling about seven days. Thus, during the 62 weeks from October 26, 1950, to January 7, 1952, plaintiff was paid $37.50 per week for 59 weeks, a total of $2,212.50.

111 F. Supp. 779

A consideration of all the testimony convinces the Court that plaintiff was employed by defendants and worked seven hours a night, seven days a week, during the 59 weeks involved in this action.

6.

A reasonable attorney's fee for the plaintiff is $150.

Discussion

The rules of law governing actions brought under the provisions of the Fair Labor Standards Act, are, for the most part, well established.

An employer is required to pay an employee who is engaged in commerce or in the production of goods for commerce a minimum of seventy-five cents an hour, and for any time worked in excess of forty hours during a week, the employer must pay said employee one and one-half times the regular rate of pay. 29 U.S.C.A., §§ 206 and 207.

Employers subject to the provisions of the Fair Labor Standards Act must keep records of persons employed by them and of the wages, hours, and other conditions and practices of employment. 29 U.S.C.A. § 211.

A violation of the minimum wage or maximum hour provisions of the Act subjects the employer to liability to employees in the amount of unpaid minimum wages or unpaid overtime compensation, an additional amount as liquidated damages, a reasonable attorney's fee, and costs of the action. 29 U.S.C.A. § 216.

The burden of proof is upon the employee to establish by a preponderance of the evidence the number of hours of overtime worked each week and the amount of wages due each pay period, and he must produce evidence sufficient to permit a finding without resort to conjecture that he worked a definite number of overtime hours. Mornford v. Andrews, 5 Cir., 151 F.2d 511; Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, certiorari denied 322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578; Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan, Inc., D.C.N.J., 98 F.Supp. 1; Marchant v. Sands Taylor & Wood Co., D.C.Mass., 75 F.Supp. 783; Bloch v. Bell, D.C.Ky., 63 F.Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J., 63 F.Supp. 777; 169 A.L.R. 1337.

However, if an...

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14 practice notes
  • Robertson v. Bd. of County Com'Rs County of Morgan, Civil Action No. 96-B-629.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 9, 1999
    ...his overtime work. Food Lion, 792 F.2d at 1276; Forrester, 646 F.2d at 414; Summit King Mines Ltd., 143 F.2d at 932; Neal v. Braughton, 111 F.Supp. 775, 782 "An employer must have an opportunity to comply with the provisions of the FLSA. This is not to say that an employer may escape r......
  • Mitchell v. Stewart Brothers Construction Company, Civ. No. 0464
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • March 25, 1960
    ...D.C.Ark.1957, 154 F.Supp. 842; Eakins v. Alvarado Broadcasting Company, D.C.N.M.1954, 125 F.Supp. 87; Neal v. Braughton, D.C.Ark.1953, 111 F. Supp. 775. The determination of the exact amount of over-time work by Sanders is not easy. The Court has had doubts as to whether any amount should b......
  • Martinez v. Phillips Petroleum Company, Civ. No. 4-66-8.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • April 11, 1968
    ...Gas Co., 210 F.2d 620 (4th Cir., 1954); Bauler v. Pressed Steel Car Co., 81 F.Supp. 172 (N.D. Ill. E.D., 1948); Neal v. Braughton, 111 F.Supp. 775 (W.D. Arkansas, 1953); Foremost Dairies Inc., v. Ivey, 204 F.2d 186 (5th Cir., 1953); Craig v. Far West Engineering Co., 265 F.2d 251, 72 A.L.R.......
  • Rural Fire Protection Company v. Hepp, No. 20461.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 16, 1966
    ...hours. In support of this attack, appellant cites Eakins v. Alvarado Broadcasting Co., 125 F.Supp. 87 (D.N.M.1954); Neal v. Braughton, 111 F.Supp. 775 (W. D.Ark.1953); and Davies v. Onyx Oils and Resins, 63 F.Supp. 777 (D.N.J.1946) for the proposition that the burden is on appellees to prod......
  • Request a trial to view additional results
14 cases
  • Robertson v. Bd. of County Com'Rs County of Morgan, Civil Action No. 96-B-629.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 9, 1999
    ...his overtime work. Food Lion, 792 F.2d at 1276; Forrester, 646 F.2d at 414; Summit King Mines Ltd., 143 F.2d at 932; Neal v. Braughton, 111 F.Supp. 775, 782 "An employer must have an opportunity to comply with the provisions of the FLSA. This is not to say that an employer may escape r......
  • Mitchell v. Stewart Brothers Construction Company, Civ. No. 0464
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • March 25, 1960
    ...D.C.Ark.1957, 154 F.Supp. 842; Eakins v. Alvarado Broadcasting Company, D.C.N.M.1954, 125 F.Supp. 87; Neal v. Braughton, D.C.Ark.1953, 111 F. Supp. 775. The determination of the exact amount of over-time work by Sanders is not easy. The Court has had doubts as to whether any amount should b......
  • Martinez v. Phillips Petroleum Company, Civ. No. 4-66-8.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • April 11, 1968
    ...Gas Co., 210 F.2d 620 (4th Cir., 1954); Bauler v. Pressed Steel Car Co., 81 F.Supp. 172 (N.D. Ill. E.D., 1948); Neal v. Braughton, 111 F.Supp. 775 (W.D. Arkansas, 1953); Foremost Dairies Inc., v. Ivey, 204 F.2d 186 (5th Cir., 1953); Craig v. Far West Engineering Co., 265 F.2d 251, 72 A.L.R.......
  • Rural Fire Protection Company v. Hepp, No. 20461.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 16, 1966
    ...hours. In support of this attack, appellant cites Eakins v. Alvarado Broadcasting Co., 125 F.Supp. 87 (D.N.M.1954); Neal v. Braughton, 111 F.Supp. 775 (W. D.Ark.1953); and Davies v. Onyx Oils and Resins, 63 F.Supp. 777 (D.N.J.1946) for the proposition that the burden is on appellees to prod......
  • Request a trial to view additional results

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