Wilson Oil Co. v. Hardy

• Decision Date: 29 March 1945
• Docket Number: No. 4810.,4810.
• Citation: 49 N.M. 337,164 P.2d 209
• Parties: WILSON OIL CO.v.HARDY et al.
• Court: New Mexico Supreme Court

49 N.M. 337

164 P.2d 209

WILSON OIL CO.

v.HARDY et al.

No. 4810.

Supreme Court of New Mexico.

March 29, 1945.Rehearing Denied Dec. 5, 1945.

Error to District Court, Lea County; James B. McGhee, Judge.

Action under the Fair Labor Standards Act by R. L. Hardy and others against Wilson Oil Company to recover unpaid overtime and attorney's fee. To review an adverse judgment, defendant brings error.

Affirmed.

Where there was neither a finding, a request for a finding, nor a ruling invoked in trial court so as to present question of difficulty or impossibility of accurately computing overtime worked by employee, record did not require determination whether a reasonable contract provision governing computation of overtime would violate the Fair Labor Standards Act. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.

[164 P.2d 210 , 49 N.M. 339]

Francis C. Wilson, of Santa Fe, for plaintiff in error.

Lee R. York, of Hobbs, for defendants in error.

MABRY, Chief Justice.

This cause comes here upon writ of error. Defendants in error, hereinafter also to be referred to as ‘workmen’, sued and recovered judgment against plaintiff in error, hereinafter also to be referred to as ‘employer’, upon a claim of unpaid overtime due such workmen, which included double the amount of wages due for actual overtime (upon the basis of 150% of the basic pay) plus $500 for attorney fees allowed in the prosecution of the claims. The case arises under the Fair Labor Standards Act of 1938, 52 Stat. at Large, 1060, Chap. 676, 29 U.S.C.A. § 201 et seq. Double the amount of the wages earned as overtime and unpaid is fixed by the statute as additional compensation, or ‘liquidated damages' in case of the Act's violation as here alleged.

The trial court made the following findings of facts and conclusion of law:

Findings of Fact

1. That this case was originally brought by R. L. Hardy individually and on behalf of Nevel S. Hardy, but that on the trial of the case the said Nevel S. Hardy appeared in person and by his attorney and entered as a plaintiff.

2. The Court finds that the defendant is a corporation engaged in the prospecting for and producing oil for interstate commerce; and that the two plaintiffs were employees of the said company at all times material to this case engaged in the production of goods for interstate commerce, and that their work came under the provisions of the Fair Labor Standards Act of 1938.

3. That the plaintiffs were employed by the defendant to work on what was known as the Wilson lease and what was known as the Shell lease; that all the wells on the Shell lease were pumped into the storage tanks on that lease and the wells on the Wilson lease were pumped into the storage tanks on that lease, making two batteries of storage tanks.

4. That in order to get the oil from the Shell battery of storage tanks into the commercial pipe lines it was pumped from that battery of storage tanks to a large booster pump located on the Wilson lease at the battery of tanks on that lease, and by the said large booster pump forced into the lines of the commercial lines. That both pumps had to run while the oil was being pumped from the Shell battery, and both of the plaintiffs worked on these operations.

5. That the overtime claimed by the plaintiffs occurred between October 19, 1939 and May 31, 1941. That for the period from October 19, 1939, to October 19, 1940, R. L. Hardy was employed on the basis of a salary of $150 per month, furnished a house and utilities; that beginning with October 19, 1940, he went on the basis of 70 cents per hour for regular time and $1.05 for overtime. Both plaintiffs were required to work seven days per week, and they worked eight hours every day except the days when they were pumpting into the commercial lines when they worked more than eight hours per day, as shown by the exhibits admitted in evidence. That R. L. Hardy began keeping the time he actually worked when the pumps were in operation on week ending November 5, 1939, and kept a daily record thereof until he quit the company.

6. That Nevel S. Hardy began keeping his time for the week ending May 19, 1940, and kept a daily record thereof for the hours worked when the pumps were in operation until he quit the company. That from the week ending May 19, 1940, to the week ending October 13, 1940, his rate of pay was 50 cents per hour for regular time and 75 cents for overtime, and from the week ending October 13, 1940, to the week ending January 12, 1941, his rate of pay was 55 cents for regular and 82 1/2 cents for overtime.

7. That for the period up to October 19, 1940, the rate of pay of R. L. Hardy varied from week to week with the fluctuation in the numbers of hours worked, which was found by dividing the number of hours worked each week into the weekly pay which was $34.54 and he is entitled to overtime for this period the sum of $357.55 and for the period from October 19, 1940, to the week ending April 6, 1941, he worked 1,287 hours overtime, and was paid for 482 hours overtime for that period leaving 805 hours not paid for which figured at his rate of pay for that period would amount to $845.75. That the defendant owes R. L. Hardy the total sum of $1,202.80 for overtime not paid for and a like amount as liquidated damages.

8. That first period of Nevel S. Hardy's time, he worked 605 hours overtime and was paid for 308 hours overtime, leaving 297 hours not paid for, which figured at 75 cents per hour would make the sum of $233.15 owing him for that period, and for the second period of time when he changed rate to 55 cents for regular and 82 1/2 overtime, he worked 449 hours overtime and was paid for 208 hours overtime, leaving 241 hours overtime not paid for, which, at the rate of 82 1/2 cents per hour, amount to $198.88, and he is also entitled to a like amount as liquidated damages.

9. The plaintiffs and each of them admit that they signed the ‘Labor Time Sheets' attached as exhibits to the answer filed herein by the defendant covering the entire period in each case during which the plaintiffs claim overtime.

10. That a reasonable attorney fee in this case would be $500.

Conclusions of Law.

1. The plaintiffs are entitled to judgment for the overtime not paid for with a like amount as liquidated damages and a reasonable attorney fee in the sum of $500.

Appellant assigns error argued under the following three points:

‘Point I. In an employee's action to recover overtime compensation, liquidated damage and an attorney's fee under Fair Labor Standards Act 1938, Secs. 1-19, 29 U.S.C.A. §§ 201-219, the employee had the burden of proving that he worked overtime and how much overtime he worked and such employee is bound to produce convincing and substantial evidence in support of his claim, and prove his cause by greater weight of evidence.

‘Point II. There is nothing in the Fair Labor Standards Act of 1938, 52 Stat. at L. 1060, Chap. 676, 29 U.S.C.A. §§ 201 et seq., which prohibits an employer from entering into a contract with an employee working irregular number of hours a week fixing an hourly rate and an overtime rate in accord with the law and a reasonable computation of working hours.

‘Point III. The validity of any agreement complying with Fair Labor Standards Act, 1938, 29 U.S.C.A. §§ 201 et seq. between employer and employee and their respective rights and obligations growing out of such an agreement, are to be judged and determined by general contract law.’

Although the evidence in this connection going to the question whether defendants in error worked the full eight hours per day throughout the time for which these hours are claimed and before beginning the computation of overtime may be rather unsatisfactory, as plaintiff in error so strenuously and ably argues, yet we cannot say that the evidence in this respect is not sufficient, if believed by the trial court, to support the finding attacked. For example, the testimony of R. L. Hardy is to the effect that he spent ‘eight hours per day or more’ on the wells and small pumps before he began to calculate and count overtime, all of which was employed in the work of pumping from the batteries into the commercial line-working on the ‘big’ pump. He testified that he kept no exact record at the time, but that he knew he was putting in the full time, that he worked the full eight hours as nearly as could be determined. Unless the employer be satisfied to leave the matter of time-keeping to the employee, it might be said that some obligation rests upon it (the employer) to itself provide some satisfactory time-keeping method. ‘Neither the statute nor regulations require that time clocks be used or specify the manner in which an employer has to keep a record of the number of hours worked by his employees.’ Department of Labor's Interpretative Bulletin No. 13, sec. 3.

The evidence in support of the claim of Nevel S. Hardy is likewise sufficiently substantial to support the findings. The claims are not to be considered invalid because the complete record of each day's time may not have been made contemporaneously with the performance of the labor, nor because the employer was not promptly advised of the error in calculation of time required. The method of keeping time goes to the weight of the evidence in this respect and it was a matter for the trial court. It was for the trial court to determine whether the workmen could prove the time spent sufficiently accurate to persuade that the eight hours had actually been put in before the computation began of overtime. The trial court was so persuaded, and so found.

While in such an action as this brought under the Fair Labor Standards Act of 1938 ‘the burden is upon the plaintiff (the workmen) to establish by a preponderance of the evidence the number of hours worked and the amount of wages due; and the evidence to sustain this burden must be definite and certain’ (Johnson et al. v. Dierks Lumber &...