Story v. Todd Houston Shipbuilding Corporation

• Decision Date: 17 July 1947
• Docket Number: Civ. A. No. 2458.
• Citation: 72 F. Supp. 690
• Parties: STORY et al. v. TODD HOUSTON SHIPBUILDING CORPORATION (STEWART et al., Intervenors).
• Court: U.S. District Court — Southern District of Texas

72 F. Supp. 690

STORY et al. v. TODD HOUSTON SHIPBUILDING CORPORATION (STEWART et al., Intervenors).

Civ. A. No. 2458.

District Court, S. D. Texas, Houston Division.

July 17, 1947.

Sewall Myer, Al L. Crystal and Frank Campbell Fourmy, all of Houston, Texas, for plaintiffs and intervenors.

Kayser, Liddell & Austin and Dwight H. Austin, all of Houston, Tex., for defendant.

KENNERLY, District Judge.

This is a suit, filed January 8, 1947, under the Fair Labor Standards Act of 1938, Section 201 et seq., Title 29 U.S.C.A., by James C. Story and J. T. Kirtley for themselves and for a large number of other persons, all of whom are alleged to be present and/or former employees of defendant, Todd Houston Shipbuilding Corporation (formerly known as the Houston Shipbuilding Corporation), a Delaware corporation. The suit is one which is commonly referred to as a "Portal-to-Portal Suit." On May 2, 1947, B. W. Stewart and a large number of other persons, all of whom are also alleged to be or to have been employees of defendant, were permitted to intervene.

It is alleged that the employment of plaintiffs and intervenors during the period from October 14, 1943, to June 1, 1946, was under and by virtue of a written contract dated October 14, 1943, between defendant and the Houston Metal Trades Council of Houston and/or other collective bargaining representatives, which contract plaintiffs and intervenors call upon defendant to produce.¹

Plaintiffs and intervenors sue for time alleged to have been spent each day during such period between the time of their arrival at defendant's plant on foot or by public or private conveyance (referred to for convenience as "arriving time") and the time they actually began work (referred to for convenience as "starting time"). Also time alleged to have been spent each day during such period between the time they actually quit work (referred to for convenience as "quitting time") and the time they left defendant's plant on foot or by private or public conveyance (referred to for convenience as "leaving time"). They say that between "arriving time" and "starting time" and between "quitting time" and "leaving time", they performed services for defendant for which defendant is liable and required to pay under such Fair Labor Standards Act of 1938 and for which they have not been paid and for which defendant owes them, and which, including wages, damages, and attorneys' fees, they say amounts to the sum of eight million dollars. They pray judgment for that sum.

Plaintiffs and intervenors allege that during the time mentioned (i. e., between "arriving time" and "starting time" and "quitting time" and "leaving time"), they engaged in many activities, i. e., walking, passing through gates, punching clocks, obtaining time cards, changing clothes, procuring or putting away tools, etc.²

Defendant on March 31, 1947, filed its Motion to Dismiss, its Motion to Strike, and its Motion for Bill of Particulars, and on June 18, 1947, filed a Supplement Motion. Such Supplemental Motion sets forth that under the `Portal-to-Portal Act of 1947', 29 U.S.C.A. § 251 et seq., approved May 14, 1947:

(a) This Court is without jurisdiction of the subject matter.

(b) That plaintiffs and intervenors fail to state a claim or claims upon which relief can be granted.

1. The jurisdiction of this court in cases arising under the Fair Labor Standards Act of 1938 is defined by the Portal-to-Portal Act of 1947 as follows: "No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after the date of the enactment of this Act, to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section."

Subsections (a) and (b) referred to are as follows:

"(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either —

"(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or

"(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.

"(b) For the purposes of subsection (a), an activity shall be considered as compensable under such contract provision or such custom or practice only when it was engaged in during the portion of the day with respect to which it was so made compensable."

It is plain that in passing the Portal-to-Portal Act, it was the intention of Congress to deprive the Courts of jurisdiction of cases of this character, save and except where there is alleged a custom or contract such as is set forth in Subsections (a) and (b) above quoted. An examination of plaintiffs' and intervenors' complaint discloses that they do not allege a cause of action of which this Court now has jurisdiction. There is no allegation of a custom or practice under which defendant is liable to plaintiffs and intervenors, and while they plead a written contract, they do not plead an express provision thereof showing such liability. Under the Portal-to-Portal Act of 1947, this Court no longer has jurisdiction of this case.

2. But plaintiffs question the constitutional validity of the "Portal-to-Portal Act."

The jurisdiction of this Court is fixed by Statute, and not by the Constitution. The cause of action of plaintiffs and intervenors, if any they have, is given them by Statute — by the Fair Labor Standards Act of 1938. By such Act, jurisdiction of such cause of action was conferred upon this Court.³ Such jurisdiction may be wholly or in part taken away, changed or modified, without violating any of the provisions of the Constitution. It has been in part taken away and changed by the "Portal-to-Portal Act" so that this Court now has jurisdiction only of suits which are brought for a liability fixed by Subsections (a) and (b), quoted above, of the "Portal-to-Portal Act." Such Act is not constitutionally invalid. Bowles v. Willingham, 321 U.S. 503, 505, 64 S.Ct. 641, 88 L.Ed. 892; Kline v. Burke Construction Co., 260 U.S. 226, 227, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Western Union Telegraph Co. v. Louisville & N. Ry. Co., 258 U.S. 13, 15, 42 S.Ct. 258, 66 L.Ed. 437; United States ex rel. Carlisle v. Hammond, 5 Cir., 99 F.2d 557, 558; Norris v. Crocker, 13 How. 429, 430, 14 L.Ed. 210; 35 C.J.S., Federal Courts, § 4, pages 776 to 779; 36 Corpus Juris, Page 512; Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264; Seligman's, Inc. v. United States, D.C., 30 F.Supp. 895; Taylor v. Brown, Em.App., 137 F.2d 654; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012; Milk Wagon Drivers Union v. Lake Valley Farm Products, 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63; Sherr v. Anaconda Wire & Cable Co., 2 Cir., 149 F.2d 680; Rodriguez v. Weekly Publication, 2 Cir., 144 F.2d 186; In re Hall, 167 U.S. 38, 17 S.Ct. 723, 42 L.Ed. 69; National Carloading Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564; Messick v. Southern Pennsylvania Bus Co., D.C., 59 F.Supp. 799; Gilbert v. David, 235 U.S. 561, 35 S.Ct. 164, 59 L.Ed. 360; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135.

3. But even if there still be jurisdiction here, a further examination of plaintiffs' and intervenors' complaint discloses that it does not under the "Portal-to-Portal Act" state a claim or claims upon which relief can be granted In order to state such a cause of action, plaintiffs and intervenors must plead "an express provision of a written or nonwritten contract in effect, at the time of such activity," or plead a custom or practice in effect at the time of such activity, making such activity compensable. This, they have not done.

It follows that the case must be dismissed.

Let appropriate order, dismissing same, be drawn and presented.

1 The allegations with respect to such contract are as follows:

"Complainants further say that their employment hereinbefore referred to by said two respective corporations was under, in accordance with and by virtue of a written contract of date October 14, 1943, entered into, by and between Houston Shipbuilding Corporation and Houston Metal Trades Council of Houston, Texas and with a number of labor unions which were and are affiliated and...