Thompson v. FW Stock & Sons

• Decision Date: 15 September 1950
• Docket Number: Civ. A. No. 3018.
• Citation: 93 F. Supp. 213
• Parties: THOMPSON v. F. W. STOCK & SONS, Inc.
• Court: U.S. District Court — Western District of Michigan

93 F. Supp. 213

THOMPSON v. F. W. STOCK & SONS, Inc.

Civ. A. No. 3018.

United States District Court E. D. Michigan, S. D.

September 15, 1950.

Fred C. Culver, Hudson, Mich., Major Bird and Bourns & Bird, all of Adrian, Mich., for plaintiffs.

George C. Tilley and Miller, Canfield, Paddock & Stone, all of Detroit, Mich., for defendant.

LEVIN, District Judge.

This action was commenced in 1941 by Blair Thompson on behalf of himself and other similarly situated employees of the defendant's flour mill located at Hillsdale, Michigan, to recover unpaid minimum wages and overtime compensation, pursuant to the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-216. The delay in bringing about a determination in this action has been occasioned in part by the illness of the judge before whom it was tried and his death before his decision was announced, and subsequently by the incapacity of counsel for the plaintiffs to continue to represent his clients. The defendant served a supplemental answer interposing the defenses set out in Sections 2 and 9 of the Portal-to-Portal Act, 29 U.S.C. A. §§ 252, 258, which became effective more than three years after the date of the hearing.

Defendant's counsel and recently substituted counsel for the plaintiffs have agreed that the issues may now be submitted for determination upon the record made before the judge who heard the case. Violations are charged for the period from October 24, 1938, the effective date of the Act, to February 1, 1941. During this period defendant employed approximately one hundred people. There have been no complaints of violations of the Act subsequent to February 1941 when the defendant's employees were organized following a strike and a contract was entered into between the newly recognized union and the employer.

In a conference with me counsel agreed that the complaint be dismissed as to a number of the plaintiffs and that a watchman, Howard Young, be deemed entitled to overtime compensation in the amount of $157.76. The remaining plaintiffs, twenty-eight in number, may be classified as follows: Ten millers and oilers, sixteen flour and feed packers and two engineers. It is not disputed that these twenty-eight plaintiffs were all engaged in the production of goods for interstate commerce.

The principal issue is whether a period allotted for lunch was a free period, as contended by the defendant, or whether, as the plaintiffs contend, the duties and responsibilities of the employees were continuing, so that the time they spent on the employer's premises during the agreed lunch period constituted working time within the meaning of the Act. If the court finds the lunch time was working time it will be necessary to consider whether the provisions of the Portal-to-Portal Act, 29 U.S.C. A. § 251 et seq., bar recovery.

Prior to the effective date of the Act, defendant's mill was operated twenty-four hours a day, six days a week, with three eight hour shifts. All the plaintiffs were paid on an hourly basis which normally gave them compensation for a forty-eight hour week. The time required for eating lunch was not deducted from hours worked in computing pay. When the statutory maximum workweek of forty-four hours became effective in October 1938, in order to continue a twenty-four hour operation of the mill with the three shifts, it was agreed that during the first year of the Act's operation there be deducted from the workers' time a lunch period which was set as forty minutes. A compensatory increase was made in their hourly rate so that their take-home pay would not be reduced. The actual starting and stopping time for these employees remained the same. The forty minute period reduced the workweek precisely to the statutory maximum. In other words, these employees were simply credited with a forty-four hour week instead of the previous forty-eight hour week.

In October 1939, when the statutory maximum workweek became forty-two hours, the defendant's officers fixed the workweek at forty hours, notwithstanding the fact that the forty hour week did not become mandatory under the Act until a year later. This reduction in the workweek to forty hours was contrived by allotting eighty minutes as a lunch period for the millers and oilers. The lunch period for the packers and feeders remained at forty minutes but their shifts were shortened by forty minutes, and in their departments the eight hour shifts were completed by relief packers obtained from a loading gang. Hourly rates were increased to maintain take-home pay.

The defendant does not deny that the two engineers in its employ could not leave their engines unattended at any time during their shift because a constant watch was required for the safe and efficient operation of the engines. Their lunches were eaten at various times during the period of the shift and sometimes their responsibilities required them actually to attend the operation of the machinery while eating. The defendant maintains, however, that it shortened the workday for these two employees by a corresponding period of forty minutes during the first year following the effective date of the Act, October 1938 to September 1939, and an additional forty minutes the second year from October 1939 to February...