Thompson v. Daugherty

• Decision Date: 26 July 1941
• Docket Number: Civil Action No. 7.
• Citation: 40 F. Supp. 279
• Parties: THOMPSON v. DAUGHERTY.
• Court: U.S. District Court — District of Maryland

40 F. Supp. 279

THOMPSON v. DAUGHERTY.

Civil Action No. 7.

District Court, D. Maryland.

July 26, 1941.

Clarence Lippel, of Cumberland, Md., for plaintiff.

Edward J. Ryan, of Cumberland, Md., for defendant.

CHESNUT, District Judge.

This is a private suit by an employe against his employer based on the Fair Labor Standards Act of 1938, § 16(b), 29 U.S.C.A. § 216(b). The jurisdiction of the court is based on 28 U.S.C.A. § 41(8) and section 16(b) of the Act of 1938. Robertson v. Argus Hosiery Mills, 6 Cir., June 25, 1941, 121 F.2d 285; Missel v. Overnight M. T. Co., D.C.Md., 36 F.Supp. 980, Judge Coleman; United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430. The case was tried to the court without a jury. I find the facts to be as follows:

1. The defendant, Emmett A. Daugherty, is a citizen of Cumberland, Maryland, who, in 1937, made a contract with the United States Government to collect and deliver United States mail from and between the post office in Cumberland, Maryland, and the local railroad stations for the period of four years from July 1, 1937, at an annual compensation of $4,254, with the obligation on his part to furnish three trucks and two full-time men and one part-time man.

2. On October 3, 1938 Daugherty employed Thompson as one of the full-time men under this contract, Daugherty himself performing the services of another full-time man. Thompson had previously for some time been out of work and had applied to Daugherty for a job. The wages agreed to be paid Thompson at first were $60 a month which was entirely acceptable to Thompson. His duties were to report at the local post office at 11.40 P. M. each night and drive the truck carrying the mail between the post office and the railroad stations for all trains arriving and leaving until and including the one leaving at 8.24 A. M., the next morning. During the night between one and two o'clock A. M., Thompson was unoccupied in a consecutive period of one and three-quarters hours, during which he was entirely free. As he lived some distance from the post office he customarily spent the time there and was free to spend the time in sleeping or reading or otherwise at his option. He continued in the employment until January 7, 1941, when he secured a better position. During the period of his employment by Daugherty the latter raised his salary several times until it was finally at the rate of $75 per month. Shortly before leaving his employment, about Christmas time 1940 when the mail was heavy, he requested extra compensation of $21 which Daugherty declined to pay, calling his attention to the fact that he, Daugherty, had on numerous occasions performed Thompson's work for him when the latter was sick or away without making any deductions from his weekly pay. During 1940 Thompson corresponded with the Fair Labor Standards Bureau with respect to whether he was not entitled to extra compensation under the Act in view of the circumstances of his employment. But he made no request at any time to Daugherty for increased compensation until six weeks after he left the employment, and this suit was promptly thereafter filed March 12, 1941. Daugherty in good faith thought he was not subject to the Act.

3. Daugherty's services were entirely performed in the City of Cumberland in the County of Alleghany in the State of Maryland. Under his contract he or his employe received the mail sacks from the postal employes at the post office in Cumberland, loaded them into the truck, and then the truck was driven by Thompson or Daugherty to the railroad stations. Similarly the mail coming off the incoming trains was delivered to Daugherty's truck and loaded on it by Daugherty or Thompson. Daugherty met trains arriving or leaving Cumberland between about 8.30 A. M., and 11 P. M. His part-time employe met one midday train whose schedule conflicted with other trains served by Daugherty. The distance between the post office and the railroad stations was less than about half a mile. The railroads carried interstate mail.

4. Counsel have stipulated that the maximum basic sum, if any, recoverable by the plaintiff, under the schedule of compensation provided for in the Act, is $488.16, for 588 hours over-time, if the "waiting time" of an hour and three-quarters above referred to is not deducted, but if the latter is properly deductible, then the maximum basic amount of recovery under the Act is $252. But in addition the plaintiff demands under 29 U.S.C.A. § 216(b), an "additional equal amount as liquidated damages" and also a reasonable attorney's fee for the plaintiff's attorney to be paid by the defendant.

5. The contract price received by Daugherty from the Government, after paying the wages of his employes, and other expenses, was sufficient to leave him a net sum of only about $24 a week.

Counsel for the parties also stipulated that all errors in pleading should be regarded as waived and the case submitted to the court on its merits on the law and facts as found.

On these facts it appears that if the plaintiff's claim is well founded there will be a resulting hardship to the defendant. The defendant's contract with the Government for carrying the mails in Cumberland was made long before the effective date of the Act. The contract has not been offered in evidence but it presumably was made under and subject to the provisions of Title 39, United States Code Annotated, ch. 12, §§ 421 to 451, which regulate the subject matter of "Contracts for Carrying the Mails". The award of the contract was made to the plaintiff as the lowest bidder, and presumably was based on estimated expenses without knowledge of increase of wages which might be required under the future Act. The plaintiff, being out of employment at the time, sought employment from the defendant at the rate of compensation thoroughly acceptable to himself, and his wages were subsequently voluntarily increased from time to time by the defendant. During all the time the plaintiff was employed he gave no intimation to his employer that he was or would be entitled to over-time pay under the Act and finally voluntarily left the employment only when he secured a better position. If the defendant is required to pay the amount now claimed by the plaintiff the result will be that his own net compensation for the same kind and amount of service will probably be less than that received by the plaintiff.

However, it is proverbial that "hard cases make bad law", and therefore the problem in this case is to determine what is the applicable law, irrespective of the possible resulting hardship to the defendant. The plaintiff contends that his case is squarely within the provisions of section 207 of 29 U. S.C.A. That section provides that the rate of compensation for over-time (as defined therein) shall be — "* * * at a rate not less than one and one-half times the regular rate at which he is employed". The parties have stipulated the applicable aggregate sums to be determined, as affected by the contingent finding above mentioned. The requirement for the extra rate of compensation for over-time is by the section applicable only to employes who are "engaged in commerce or in the production of goods for commerce". It is not contended in this case that the plaintiff was engaged in the production of goods for commerce, but it is contended that he was engaged in commerce. "Commerce" is defined in section 203(b) as follows: "`Commerce' means trade, commerce, transportation, transmission, or communication among the several States, or from any State to any place outside thereof."

The defendant's principal contention as to the non-applicability of the Act is that the plaintiff was not engaged in commerce within the meaning of this definition. It is true the activities of the plaintiff were wholly within the City of Cumberland, in the State of Maryland, but they constituted assistance in the transportation of interstate mail. It seems quite clear therefore that the plaintiff was engaged in commerce within the meaning of the Act. It is, of course, now well understood, from recent decisions of the Supreme Court, that the concept of interstate commerce has been much broadened in recent years, especially in the application of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the Fair Labor Standards Act, both of which are based on the interstate commerce power of Congress. But apart from these later decisions, it also seems clear enough, from earlier decisions of the Supreme Court, that the plaintiff's activity was necessarily a part of interstate commerce. Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 309, 44 S.Ct. 96, 68 L.Ed. 308; Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 49 L.Ed. 518; Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Labor Board v. Jones & Laughlin Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Puget Sound Stevedoring Co. v. State Tax Comm. 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68. In N.L. R.B. v. Carroll, 120 F.2d 457, 458, the First Circuit Court of Appeals in a per curiam opinion filed June 11, 1941, held that a contract mail carrier engaged in the transportation of mail by contract to and from the United States Post Office at Lynn, Mass., and other nearby places, in the State, was subject to the National Labor Relations Act, and remarked in a note that — "The record contains ample evidence of the interstate character of the large volume of mail transported by respondent pursuant to the contract." The Administrator of the F.L.S.A. has also taken the same position in his Interpretative Bulletin No. 9, par. 8(c) (1941).

By sections 203(d) and (e) of 29 U. S.C.A., employes of the United States are not subject to the provisions of the Act. Therefore if Thompson or Daugherty could properly be considered an employe of the United States, the Act would not be applicable to this case. However, there is...