Sturdivant v. SALT RIVER VALLEY WATER USERS'ASS'N

• Citation: 249 F.2d 944
• Decision Date: 03 July 1957
• Docket Number: No. 14850.,14850.
• Parties: Leo STURDIVANT et al., Appellants, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, an Arizona corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

249 F.2d 944 (1957)

Leo STURDIVANT et al., Appellants, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, an Arizona corporation, Appellee.

No. 14850.

United States Court of Appeals Ninth Circuit.

July 3, 1957.

COPYRIGHT MATERIAL OMITTED

Herbert B. Finn, Shute & Elsing, Phoenix, Ariz., for appellants.

Jennings, Strouss, Salmon & Trask, Richard G. Kleindienst, Irving A. Jennings, Phoenix, Ariz., for appellee.

Before STEPHENS, POPE and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

This is an action brought by Leo Sturdivant "for himself and in behalf of 35 (thirty-five) others, each of whom is similarly situated" and has designated Sturdivant to bring it on his behalf against the Association¹ for accounting and back wages unpaid, in violation of the Fair Labor Standards Act.² Sturdivant, and each of the others designated, is a zanjero, "one who rides the ditch." They, together with others to the total number of sixty-two division zanjeros, are employed by the Association to control the flow of water in the irrigation system, turn water into and out of laterals of the farmers, as requested, perform maintenance and other duties, as directed.

The Association filed answer, and the cause was tried by the court without a jury. The defense was based upon two grounds. First, it was contended that the zanjeros were not engaged in activities covered by the Fair Labor Standards Act and Amendments. Second, the agreement between the Association and the Union, to which all these zanjeros belonged and which was negotiated by collective bargaining, was a bar to relief.

A considerable volume of testimony was taken. The trial court held for plaintiff. All the zanjeros were found to be under the provisions of the Act.³ The trial court granted judgment in favor of each of the zanjeros for whom Sturdivant brought action in an amount which would compensate him for the difference between $.70 per hour, from January 25, 1950, through November 27, 1950, and an hourly rate of $.75, required by the minimum wage provision of the Act for this period.⁴ The hours were figured according to the agreement with the Union hereinafter described. An appeal has been taken by thirty-five of the thirty-six persons mentioned in the judgment, as though each had been a plaintiff. No appeal was taken from the adverse judgment by the Association.

The main argument has been about the terms of the agreement, which was entered into between the Union and the Association, dated October 1, 1945, and which was used as a defense.

The evidence tended to show that the agricultural lands served with water by the Association were divided into sixty-two zanjero divisions. Each of such divisions comprises roughly an area of four thousand acres. The Association furnishes each zanjero with an isolated house, equipped with a telephone, in which he lives with his family, if he has one.

Each zanjero operated his division without direct supervision. The communication with the supervising employees and the main office was by telephone. Through this medium, requests and orders for service and other work were received by him, and by this he informed the watermaster of the quantities of water needed and other matters concerning the operation of the division. He mailed daily written reports to a central office. But he operated his division and did his work essentially without other supervision.

During the growing season, the zanjeros necessarily worked long hours and were on call day and night seven days a week. In the winter, they may have worked as little as three or four hours a day. When the zanjero was not performing duties for which he was paid, he was not under control of the Association and was at liberty to use and did use his time as he desired.

These zanjeros were represented by an apparently strong Union, the International Brotherhood of Electrical Workers Local Union 266, which was the certified collective bargaining agency for this class of employees of the Association, among others.

The original collective bargaining agreement, heretofore referred to, was dated October 1, 1945, but this has been renewed or renegotiated annually and amended from time to time since that date. These were intended to be the full agreements between the Union and the Association, covering wages, hours and working conditions. These agreements gave recognition to the nature of the work performed by the zanjeros and the irregular and fluctuating hours and the variation therein between the growing season and the winter months, together with the practical impossibility of supervision.

In order to meet this problem, each zanjero was required to maintain a written record of the various duties performed by him during each work week. In order to meet the difficulties just outlined, the agreements provided a schedule of these duties and a specified time which would be credited to a zanjero for the performance of that duty.

In order to minimize the variation between pay for winter months and the growing season, each zanjero was guaranteed by these agreements a weekly wage all year around of approximately $48.00, besides the accommodations furnished to him.

The agreements applied the time credits listed upon the schedule to determine the number of hours worked during the week. If the zanjero worked more than forty hours in a particular week, the wage was determined by dividing the guaranteed wage by the number of hours worked. This established the hourly rate of pay. If the latter were less than $.70, that figure was used as the hourly wage. If the figure arrived at by this computation were more than $.70, then the figure so computed set the hourly wage. Upon this base for forty hours, the zanjero was also paid time and a half for every hour which he worked over forty. The whole computation was based upon the time credits above described.

However, a somewhat cryptic provision contained in the agreement gave the zanjero a right to turn in an itemized, detailed statement of the hours worked each work week, if he believed his pay check did not cover the amount due him "based on the hours worked during the work week." If he did not make such a statement within five days after he received his pay check, "the computations made by the Association shall be binding upon the parties."

Procedurally, this course cannot be justified. The "complainant" Sturdivant has appealed and, if the course of the proceeding has been improper, the cause should be remanded.

The whole attack is upon the findings and conclusions of the trial court. The criticisms are, in general: First, it is objected that the Association did not pay the regular rate for the basic forty hours worked or time and one-half for overtime. Second, it is said the findings did not accord with the "Belo Plan" and the "Belo Amendment." Third, it is said the collective bargaining agreements are invalid because these provided for pay based not on hours worked, but on the number of jobs performed irrespective of time worked, and that the zanjeros were not paid for all hours worked. Finally, it is assigned as error that no liquidated damages were allowed.

The basic approach of "complainant" is that the agreement was void upon its face because they were on duty continuously and therefore were entitled to credit for twenty-four hours in each day. This contention is completely refuted by the record. However, the hours and times which were worked were extremely irregular and can be only viewed as piecework.

Counsel for complainant said in defining their position: "It is our position in this case the zanjeros are on call for 24 hours a day and therefore they are working 24 hours a day."⁵

Insofar as the attack on the basic scheme of the agreements related to the computation of the basic pay, it should receive attention. An improper method of calculation would in and of itself demonstrate illegality. Walling v. A. H. Belo Corporation, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716; Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502. The Belo case held that an agreement providing for a basic rate for the first forty-four hours and not less than time and one-half for all in excess of forty-four hours, as well as a guaranteed weekly wage for the benefit of employees with fluctuating work weeks, was valid under the Act. The so-called Belo amendment⁶ provided that such a plan, providing for a regular rate of pay not less than the statutory minimum, is valid, if employment is pursuant to a bona fide individual contract or a collective bargaining agreement, and there is provided a weekly guarantee of pay for not more than sixty hours.

The trial court held that neither of these had an invalidating effect on the agreements here. The method of spreading the guaranteed pay over the total number of hours worked and compensating for overtime by paying once and a half the basic hourly figure for every hour over forty was approved in Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. The Bay Ridge case has no applicability here. It was there held that, where a contract provided for bonus pay or extra compensation should be given for specialized hours, which would not be included in basic pay for the forty hours and thus would not be used in the computation of overtime, the entire scheme was illegal.

The trial court held that the validity of agreements containing guaranteed wage plans depends upon the facts in each case, and the Fair Labor Standards Act imposes no particular form of contract on the parties. The trial court also found these agreements met the requirements of the Act. The court specifically found that the time credits, noted above,

"* * * bear a substantially accurate relationship to the actual time required by Plaintiffs to perform all the work required of them in that Plaintiffs were not required to work time in excess of said agreed credits to perform all the work

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