Smith v. Cudahy Packing Co., Civil Actions No. 935-937.

• Decision Date: 12 December 1947
• Docket Number: Civil Actions No. 935-937.
• Citation: 76 F. Supp. 575
• Parties: SMITH v. CUDAHY PACKING CO. SCHEMPF v. ARMOUR & CO. PARENTEAU v. SWIFT & CO.
• Court: U.S. District Court — District of Minnesota

76 F. Supp. 575

SMITH v. CUDAHY PACKING CO.

SCHEMPF v. ARMOUR & CO.

PARENTEAU v. SWIFT & CO.

Civil Actions Nos. 935-937.

District Court, D. Minnesota, Third Division.

December 12, 1947.

George W. Colburn, of Minneapolis, Minn., and John Edmund Burke, of St. Paul, Minn., for plaintiffs.

Loring M. Staples and John S. Pillsbury, Jr., both of Minneapolis, Minn., for defendant Cudahy Packing Co.

Cleon Headley, Harvey Hoshour, and David W. Raudenbush, all of St. Paul, Minn., for defendant Armour & Co.

Grannis & Grannis, of South St. Paul, Minn., and Ray E. Cummins, of St. Paul, Minn., for defendant Swift & Co.

DONOVAN, District Judge.

Plaintiffs "individually and as agent and as representative of all other employees of defendant corporation similarly situated" commenced action against The Cudahy Packing Company on October 19, 1945, and against Armour and Company and Swift & Company on October 20, 1945, to recover overtime compensation and liquidated damages under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. For convenience the defendants will be referred to as Cudahy, Armour and Swift. Subsequent to the commencement of the actions, other plaintiffs were added by order of the Court. D.C., 5 F.R.D. 294, 298, 299.

By answer defendants pleaded in bar:

(a) The two-year statute of limitation (32 Minn.Stat.Ann. §§ 541.07(5), 541.071). In the event that said two-year statute of limitation was held unconstitutional or inapplicable, then defendants further pleaded:

(b) The three-year statute of limitation directed against claims for liquidated damages (32 Minn.Stat.Ann. § 541.06), and

(c) The six-year statute of limitation (32 Minn.Stat.Ann. § 541.05).

Following plaintiffs' motions to strike said pleas in bar, the Court, denying the motions, held the two-year statute of limitation applicable in the instant cases. See Smith v. Cudahy Packing Co., D.C., 73 F. Supp. 141.

Defendants served notices of motions in the alternative for a dismissal, or for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. The motions were supported by affidavits and came on for hearing at a special term of this Court on September 22, and again on September 30, 1947. The defendants based said motions on the pleaded statutes of limitation and the Portal-to-Portal Act of 1947, 29 U.S.C.A. §§ 251 to 262 inclusive, hereafter referred to as the Portal Act. The specific grounds for the granting of the motions assigned by the defendants were (a) lack of jurisdiction over the subject matter, and (b) the complaints fail to state claims upon which relief can be granted.

At the conclusion of the oral argument of the motions for dismissal or summary judgment, plaintiffs moved to amend their complaints by adding the following allegation:

"That the working time and work activities for which suit is brought in this action were compensable by express provisions of non-written or written contracts in effect at the time such work activities were performed by the plaintiffs herein, and that such work and activities were compensable by a custom or practice in effect at the defendant's establishment during the time for which compensation is claimed and which custom and practice in effect at the establishment during the time for which compensation was claimed by the plaintiffs was not inconsistent with the written or unwritten contract."

Subsequently a pre-trial conference was held and the Court, in shaping up the issues for determination on the pending motions, among other things, said:

"* * * in the event the Portal-to-Portal Act is held constitutional by the Court, then I think in the light of the importance of these cases to both parties * * * that every question that has been raised and that can be included in the motions now pending before the Court should be disposed of by the Court so that in the event of an appeal, there will be less expense to all parties and there will be no necessity for going up a second time to review matters that can now be disposed of.

"* * * Has the two-year statute of limitations with its companion retro-active statute run against the claims of any or all of the plaintiffs? This involves the question of whether the word "passage" as used in the statute has reference to the time the bill was passed by the House and Senate on April 18, 1945, or whether it means the date of approval by signature of the Governor on April 23, 1945.

* * * * * *

"The next point that the Court will consider in the motions, if the Portal-to-Portal Act is held constitutional, is whether it applies to the three cases now before the Court under the motions made by the defendants for a dismissal or for summary judgment.

* * * * * *

"Paragraph 14 of the complaint reads as follows:

"`That after the date of the Act, referred to above, defendant corporation employed plaintiff and the other employees herein referred to, in commerce and in the production of goods for commerce and did not compensate him and them for certain hours worked by them, which will be hereinafter more specifically described, to-wit:

"`That plaintiff and the other employees herein referred to were compelled to change his and their clothes before recording their time when he and they commenced their employment each day at defendant corporation's premises and plaintiff and the other employees mentioned herein were compelled to change their clothes after recording his and their time when he and they finished work each day at defendant corporation's premises; that plaintiff and all the other employees mentioned herein were required to work changing clothes one hour each per day and which time spent constituted hours worked for which the company failed and refused to compensate plaintiff and other employees herein referred to whatsoever.

"`That plaintiff and other employees referred to herein were required to sharpen knives and otherwise prepare for use other materials necessary to carry on the activities of the business of the defendant corporation and which time spent sharpening knives and otherwise preparing materials for use on the defendant corporation's premises constituted hours worked by the plaintiff and the other employees herein referred to and which time worked amounted to one hour each per day for which time the defendant company failed and refused to compensate plaintiff and other employees referred to herein whatsoever.'

"Now that paragraph has been amended by the order of the Court dated October 16, 1947. The situation of the plaintiffs has not changed otherwise than as expressed by paragraph 14 of the complaint as amended.

"Mr. Colburn: I believe that is substantially correct."

The record of the instant case is limited to the facts alleged in the complaints as amended, and the allegations and admissions of the answers in each case, augmented by the affidavits referred to.

The complaints are specifically directed at defendants' failure to pay their employees compensation for time spent on defendants' premises during which the nature of their employment required them to change from their street clothes to work clothes, and to engage in duties preparatory to their work such as sharpening knives and doing similar things necessary to the carrying out of their work. The complaint makes clear that all of these activities were preliminary to the employees' principal activity.

The supporting affidavits of the defendants were to the effect that no custom or practice covering the compensation or wages for or on account of time spent by employees in changing clothes or sharpening knives, or otherwise preparing materials for use ever existed; and further, that defendants did not become parties to any contract, written or nonwritten, with any of their employees, or with their bargaining representatives or agents wherein or whereby defendants agreed in any way to pay compensation or wages for or on account of time spent by employees in changing clothes or sharpening knives, or otherwise preparing materials for use, except as provided under the terms of an agreement dated June 5, 1945. Defendants contend said agreement was in force and effect at all times mentioned in the complaints and that the agreement was adhered to and complied with. Defendants claim that all time recognized as compensable under contract or customs and practices has been fully paid pursuant to said agreement as approved by the War Labor Board's Directive Order of February 20, 1945.

The employee affidavits in each case are to the effect that there has been a contract, as well as a custom and practice in effect covering compensation for or on account of time spent by employees herein sued for.

Defendants make the point that the two-year statute of limitation has run against plaintiffs' claims. Defendants argue that the effective date of the two-year statute of limitation is the date of "passage" of the statute, and that this has specific reference to April 18, 1945, the date of the "passage" of the bill by the House and Senate, and further, that compliance with the Court's order of March 14, 1946, does not relate back to the date of the commencement of the actions on October 19 and 20, 1945.

Contending the limitation statute has not run against their claims, plaintiffs urge two points:

(a) That the two-year statute of limitation did not become effective until signed by the Governor on April 23, 1945;

(b) That compliance with the order of the Court of March 14, 1946, related back to the commencement of the action on October 19, 1945, as to the Cudahy case, and on October 20, 1945, as to the Armour and Swift cases.

The Court adopts the view of plaintiffs and holds that the word "passage" means approval by signature of the Governor on April 23, 1945, and that the controlling statute of limitation took effect at 12:01 a. m., April 24, 1945. See Minnesota Statutes 1945, and M.S.A. §§ 645.02, 645.14. Johnson v. Fay, ...