United States Cartridge Co. v. Powell

• Citation: 185 F.2d 67
• Decision Date: 23 January 1951
• Docket Number: No. 13663.,13663.
• Parties: UNITED STATES CARTRIDGE CO. v. POWELL et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

185 F.2d 67 (1950)

UNITED STATES CARTRIDGE CO. v. POWELL et al.

No. 13663.

United States Court of Appeals, Eighth Circuit.

October 26, 1950.

Rehearing Denied November 20, 1950.

Opinion Modified January 23, 1951.

R. H. McRoberts, Rhodes E. Cave and Marion S. Francis (of Bryan, Cave, McPheeters & McRoberts), all of St. Louis, Mo., for appellant.

Thomas Bond, St. Louis, Mo., for appellees.

William S. Tyson, Solicitor, Bessie Margolin, Asst. Solicitor, and William A. Lowe and E. Gerald Lamboley, Attys., Dept. of Labor, all of Washington, D. C., and Reid Williams, Kansas City, Mo., amici curiae.

Before GARDNER, Chief Judge, and SANBORN, WOODROUGH, THOMAS, JOHNSEN, RIDDICK and COLLET, Circuit Judges.

Opinion Modified January 23, 1951. See 186 F.2d 611.

COLLET, Circuit Judge.

This cause is now before us on remand from the Supreme Court. It is an action brought by a group of 59 plaintiffs, who were employed during World War II at the St. Louis ordnance plant, to recover overtime compensation, liquidated damages, attorneys' fees, and costs, under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 201 et seq. The trial court found all of the issues in favor of plaintiffs and entered a judgment aggregating $246,251.44 (twice the amount of overtime claimed), plus $24,625 as attorneys' fees and costs. The case was filed on May 4, 1945. It was tried in July, 1946, the trial ending on July 18. The trial court entered its judgment and findings of fact and conclusions of law on May 19, 1947. The Portal-to-Portal Act of 1947, 29 U.S.C. A. § 251 et seq., became effective on May 14, 1947. After the filing of the judgment in the trial court, the defendant filed a motion for a new trial, including in that motion a formal request to reopen the case to permit it to plead the defenses made available to it by the Portal-to-Portal Act and to offer evidence in support thereof. This motion was denied and the appeal followed.

The case was first submitted at the May Term, 1948, to a court consisting of the customary number of three judges. At the time it was taken under submission by that court the case of Kennedy v. Silas Mason Company, 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347, was pending in the Supreme Court. We held the case under submission awaiting the determination of the Kennedy-Silas Mason case because of the similarity of important issues in both cases. When the Kennedy-Silas Mason case was remanded by the Supreme Court without determination of those issues, but calling attention to a number of important considerations that should enter into the determination of the paramount question as to whether the Fair Labor Standards Act applied in these cases, because of the pendency of other cases before other judges of this court involving the same dominant question, we set aside the original submission and set the cause for reargument before this court en banc. We concluded that the Fair Labor Standards Act did not apply. United States Cartridge Co. v. R. M. Powell et al., 8 Cir., 174 F.2d 718. Having so determined that question, we did not pass upon the other questions presented by the defendant-appellant. The Supreme Court has changed our minds for us on the question of the application of the Fair Labor Standards Act and has remanded the case to us for determination of the other questions presented on appeal but not heretofore determined. Thereafter, the parties requested and were granted leave to file supplemental briefs. The last brief was filed on September 12, 1950.

We proceed to the determination of the issues now before us. They are: (1) that the burden is upon the plaintiffs to prove the hours worked, i. e., plaintiffs must not only prove that they worked overtime, but that they must establish the hours of overtime worked; (2) that plaintiffs are required to plead and the burden is upon them to prove the coverage of the Portal-to-Portal Act of 1947, i. e., that the activities for which they seek to be compensated were compensable activities within the meaning of Section 2 of said Act, Title 29 U.S.C.A. § 252; (3) that the judgment of the District Court is excessive with respect to each of the plaintiffs in that (a) it is based upon the erroneous finding and conclusion that the salaries paid to plaintiffs were base pay for a 40-hour week instead of a variable or 48-hour work week; (b) because it includes in the computation of hours worked a one-half hour lunch period; and (c) includes as compensable, time prior to the beginning of and following the ending of plaintiffs' regular working shifts; (4) that plaintiffs and each of them were exempt from the provisions of the Fair Labor Standards Act by reason of Section 13(a) (1) of that Act, Title 29 U.S.C.A. § 213(a) (1); (5) that the claims of certain of the plaintiffs with respect to overtime prior to April 5, 1943, are barred by the provisions of Sections 1012 and 1015, R.S.Mo.1939, Mo.R.S.A.; (6) that two of the plaintiffs have died and their actions have not been duly revived by their personal representatives; (7) that because the Portal-to-Portal Act became binding upon the parties to this proceeding and upon the courts on May 14, 1947, and therefore the court erred in refusing to permit appellant to present to it matters under the Portal-to-Portal Act of 1947, and that the judgment of the District Court violates and is contrary to the provisions of the Portal-to-Portal Act in that it includes with respect to each of the plaintiffs an allowance of overtime compensation plus liquidated damages for (a) one-half hour lunch periods, and (b) the time prior to the beginning of and following the ending of plaintiffs' regular working shifts.

Reference should be made to our previous opinion, 174 F.2d 718, and the Supreme Court's opinion in this case, Powell et al. v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, decided May 8, 1950, for a general statement of the facts relative to the type and nature of the action. Those facts will not be repeated here. Many additional facts necessary to an understanding of the now to be determined issues will be stated in connection with the determination of each of those issues.

To sustain the plaintiffs' burden to prove the hours each of them worked and the amount of overtime worked, plaintiffs called for and were furnished prior to the trial a detailed statement of the hours which the defendant's time record showed each of the plaintiffs had spent at the defendant's plant. This record was put in evidence by plaintiffs. From it the trial court made its computations upon which the judgment is based. There was a serious dispute concerning whether the plaintiffs should be compensated for all of the time which these records showed they had spent on the defendant's premises. Involved in this dispute was the question of whether they were required to report in advance of the beginning of the regular shift. Also in dispute was the question of whether they were entitled to consider as time worked a 30-minute lunch period. The trial court concluded from the evidence that plaintiffs were entitled to treat as time worked and to be compensated for all of the time shown on defendant's record. That finding appears to have been based to a substantial extent at least upon a printed pamphlet issued by defendant and given to all employees, including these plaintiffs, wherein it was stated:

"There will be eight hours in any working day, and forty hours will constitute a working week. To meet the schedule required of us by the National Defense Program, it will be necessary to employ three shifts on production operations. When production demands require a longer work day or longer work week, the company will pay the legal overtime rate as provided under the Walsh-Healy Act 41 U.S.C.A. § 35 et seq. and the Fair Labor Standards Act. When three shifts are operating there will be rotation of first, second and third shifts every two weeks. A lunch period will be allowed on each shift and will be paid for by the company. That is, no deduction will be made for this lunch period." (Italics supplied)

"Payment of Overtime:

"Time and a half will be paid in excess of eight hours per day or forty hours per week."

and a bulletin issued to all the plaintiffs, stating that the working hours for plaintiffs would begin thirty minutes prior to the beginning of the regular shift.¹ There was also testimony by a number of the plaintiffs detailing their duties, which included duties to be performed prior to the beginning of their regular shift. From an examination of all of the evidence we are convinced that there was ample justification for the trial court holding that the time prior to the beginning of the regular shifts should properly be treated as working time, and that the 30-minute lunch period was to be compensated for as working time. We are therefore not at liberty to set aside that finding.

Defendant's second contention that it was encumbent upon the plaintiffs to plead affirmatively and to prove that the activities for which they sought compensation were compensable activities within the meaning of Section 2 of the Portal-to-Portal Act is answered in effect by what has been said relative to the foregoing contention of defendant. That is true because the plaintiffs are entitled to recover if they can show that by the terms of their employment they were entitled to compensation for the time prior to the regular shift and for the lunch hour period. They undertook to do that. If they succeeded in doing so, then the Portal-to-Portal Act does not bar such compensation. The trial court found that they had done so and as stated, the finding was sufficiently supported by the record. Hence the requirement as to proof was met by the evidence. Since the time claimed before the beginning of the regular shifts and the 30-minute lunch periods are of the character which the Portal-to-Portal Act requires that there should be a contract expressly...