Tully v. Joshua Hendy Corporation
| Decision Date | 28 July 1948 |
| Docket Number | Civ. No. 5931. |
| Citation | 79 F. Supp. 709 |
| Court | U.S. District Court — Southern District of California |
| Parties | TULLY et al. v. JOSHUA HENDY CORPORATION. |
Mohr & Borstein and Weinstein, Bertram & Vogel, all of Los Angeles, Cal., for plaintiffs.
Thelen, Marrin, Johnson & Bridges and Samuel S. Gill and Robert H. Sanders, all of Los Angeles, Cal., for defendant.
The plaintiffs, approximately fifty-six in number, after having eliminated those subsequently dismissed from the case, designated as maintenance electricians, marine electricians, stationary engineers, operating engineers, mechanical maintenance employees, tool room attendants, tool room mechanics, warehousemen, issue and receiving clerks and employees in various other crafts and capacities, by a first amended complaint, as amended, have instituted this action against the California Shipbuilding Corporation, a corporation, subsequently changed to the Joshua Hendy Corporation, a corporation, under the Fair Labor Standards Act of 1938, Public No. 718, 75th Cong., Ch. 676, 52 Stat. 1060-1069. 1938, 29 U.S.C.A. §§ 201-219, to recover overtime wages, liquidated damages and attorneys' fees for work performed within three years last past the date of the filing of the complaint herein on November 5th, 1946, under conditions which will be hereinafter stated.
Jurisdiction of this action is conferred upon this court, subject to the Portal-to-Portal Act, infra, by Sec. 16(b) of the Act, and by Sec. 24(8) of the Judicial Code, 28 U.S.C.A. § 41(8).
The defendant is a corporation organized under the laws of the State of California, authorized to do business therein, and has its principal place of business in Los Angeles County, California.
Counsel for both sides have stipulated that at all times during the employment by defendant of the plaintiffs herein, and until October 27th, 1945, the defendant produced ships under contracts with the United States Maritime Commission. Upon the completion of each ship, it was delivered, pursuant to said contracts, to the United States Maritime Commission at its shipyard at Terminal Island, County of Los Angeles, State of California; and, following the delivery of each ship, it was sent by the United States Maritime Commission from the State of California to points outside of the State of California. The court finds, in view of this stipulation, that the employees of the defendant corporation were engaged in the construction of ships for commerce under subdivisions (b), (i) and (j) of Sec. 203 of Title 29 U.S.C.A. See opinion of Judge McCormick in 5870-M Civil, Mills v. Joshua Hendy Corporation, D.C., 79 F.Supp. 709 and opinion of Judge Yankwich in 6176-Y Civil, Devine v. Joshua Hendy Corporation, D.C., 77 F. Supp. 893 and Adams v. St. Johns River Shipbuilding Co., D.C., 69 F.Supp. 989.
The amended complaint, as amended, alleges that the plaintiffs substantially were credited with having worked forty-eight hours or more per week, for forty hours of which they were paid at straight time, and, for all hours in excess of forty hours, they were paid at the rate of time and one-half. In addition to said forty-eight hours or more for which they were credited and paid, it is alleged that the plaintiffs worked one-half hour each day, or three hours or more each week, for which they were not credited, and for which they received no compensation whatsoever; and plaintiffs are claiming damages in a sum equal to one and one-half times the regular rate at which each employee was employed and for which he was compensated, times three or more hours for each week of his employment and for which he was not paid, plus an equal amount as liquidated damages.
Pursuant to stipulation of counsel for the respective parties, the issue has been narrowed down to the claim for overtime compensation during the lunch period of the three shifts, it being the contention of the plaintiffs that, generally speaking, while the plaintiffs ate their lunch, they were subject to duty and interruptions, and frequently did perform duties while on their lunch period; and the only issue before this court for determination is whether or not they are to be compensated for this one-half hour lunch period per day for the number of lunch periods alleged to have been worked, in the light of the Portal-to-Portal amendment, infra; and, the court, in rendering this decision, will assume that the testimony of the plaintiffs is generally true that while on their thirty minutes' lunch period they were generally at their posts of duty, and, on occasions, did perform duties during their lunch periods, and for which they are now claiming compensation for the first time.
Portal-to-Portal Act of 1947, 29 U.S. C.A. § 251 et seq.:
While the Fair Labor Standards Act is to be liberally construed to accomplish its purpose, Walling v. Rutherford, 10 Cir., 1946, 156 F.2d 513, nevertheless, in order to reach a proper decision in this case, it is necessary for this court to take into consideration the provisions of the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, to ascertain if, in the court's opinion, it bars the right of recovery to the plaintiffs in this case.
Section 252 of Title 29 U.S.C.A. reads as follows:
"Relief from certain existing claims under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, and the Bacon-Davis Act.
(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 May 14, 1947), 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 May 14, 1947, 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) of this section, 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 made compensable.
(c) In the application of the minimum wage and overtime compensation provision of the Fair Labor Standards Act of 1938, as amended, of the Walsh-Healey Act, or of the Bacon-Davis Act, in determining the time for which an employer employed an employee there shall be counted all that time, but only that time, during which the employee engaged in activities which were compensable within the meaning of subsections (a) and (b) of this section.
(d) 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 May 14, 1947, 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.
(e) No cause of action based on unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under...
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