Action under the Fair Labor Standards Act by Virgil D. Bell and others against Seton Porter and another, copartners to recover overtime compensation, liquidated damages, and attorney's fees.
Judgment for plaintiffs.
This cause, now before the court for decision after hearing on the merits, is an action under the provisions of the Fair Labor Standards Act to recover overtime compensation, liquidated damages and attorneys' fees.
"No employer shall * * * employ any of his employees who is engaged in commerce or in the production of goods for commerce — * * * (3) for a work-week longer than forty hours * * * unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." Title 29 U.S.C.A. § 207.
The plaintiffs, 53 in number, were employed as firemen by the defendant copartnership of Sanderson Porter, for various periods of time from July, 1941, to the date of trial, and all were employed during the period from February 27, 1944, to December 1, 1945 (the period for which they are here seeking overtime compensation), as firemen and plant protection fire fighters. The defendants operated the Elwood Ordnance Plant at Elwood, Illinois, under a cost plus fixed fee contract with the United States Government. The Elwood Ordnance Plant was engaged in the manufacture and processing of war materials, such as shells, bombs, explosives, and munitions, in interstate commerce for the use of the Armed Forces of the United States. The plant site was a military reservation approximately 23 square miles in area. There were numerous entrance gates leading into the plant, for all kinds of traffic, and there were interwoven roads and railroads throughout the whole plant area. The intra-plant railroad trackage aggregated approximately 110 miles. There were numerous loading lines, warehouses, magazines, and other necessary buildings, facilities, and equipment. There were 1100 structures on the premises. The number of employees fluctuated from approximately 13,000 to 5,000. At the plant, artillery shells, bombs, and other items of munitions were assembled and loaded with TNT and other explosives. The entire plant area was subdivided into three parts — high explosives, loading lines, fuse and booster areas.
The plant maintained its own fire protection department. This department used three fire stations, located at strategic points in the plant area, a number of fire trucks, ladders, hose, extinguishers and other usual fire fighting equipment. The plaintiffs were all employed for varying periods of time as firemen or fire fighters in the fire protection department.
Prior to February 27, 1944, and commencing in 1941, the firemen worked regular shift periods of eight hours each on one of three shifts, six days a week, similar to the other employees of the defendants. The shifts were from 7:30 A.M. to 3:30 P.M., from 3:30 P.M. to 11:30 P.M. and from 11:30 P.M. to 7:30 A.M. The basic pay was 85 cents per hour for a 40-hour week, with time and one-half for overtime. Accordingly, under this three-shift system, the weekly wage of each fireman was computed as follows:
6 days of 8 hours each ........ 48 hours Base pay 85¢ per hour 40 hours × 85¢ ................ $34.00 8 hours × 1.275 .............. 10.20 ______ Weekly wage .............. $44.20
In the late summer of 1943, the defendants contemplated inaugurating a so-called two-platoon system. This system was suggested to the defendants by the Army and previously had been adopted at a number of similar plants with the approval of the Administrator of the Wage and Hour Division of the Department of Labor. A written vote was taken on the two-platoon system, and the firemen rejected the plan. Thereafter, a voice vote was taken, and the system was again rejected by the firemen. Fire Chief Roy W. Mortenson enumerated the firemen's objections as being, among others (Plaintiff's Exhibit #12): "Unsuitable sanitary system at No. 2 Fire Station * * * Inadequate sleeping facilities at all stations" and that —
"During each 24-hour shift the employee would clock out for 8 hours, and use this time for sleeping, being subject to call in the event of a fire. The general opinion is that any such arrangement would be satisfactory only if accompanied by a very substantial salary increase to compensate the worker for the time he must remain at the station while not being paid."
Late, in December, 1943, the defendants again asked the firemen to vote upon the two-platoon system, and this time the firemen voted unanimously in favor of the adoption of the plan. Plaintiffs contend that they were forced by the defendants to accept the two-platoon system. Some of the plaintiffs testified they were told by Chief Mortenson, before the third vote, that the two-platoon system was going into effect anyway so they might as well vote for it. Others testified they were told that they would either vote for it or else they would be released. Others testified that they were told that they would either vote for it or else they would be sent to the personnel department for reassignment to other work. A number of the plaintiffs testified that, at the time of the last vote, the firemen were not told the amount of compensation they would receive under the new system. Some testified they were told, prior to the last vote, that the firemen would be furnished with proper sleeping quarters, and that a partition would be installed between the kitchen and the sleeping quarters in Station No. 3. On the other hand, the defendants contend that the Chief of the Fire Department fully explained the operation of the two-platoon system, the hours of work, rates of pay and facilities to be furnished by them in the event of the adoption of the system, and that the firemen voted freely and without coercion in favor of the adoption of the plan. The court is of the opinion that the firemen, before voting, were given to understand that if they wanted to retain their jobs as firemen they would be required to vote for the plan, and, if they did not vote for the plan, they would be transferred to another department in the plant or discharged. This view is supported by Chief Mortenson's testimony (R. 365) and the form of the ballot (Defendant's Exhibit No. 1):
"1. For the two-platoon system —
"2. Against the two-platoon system —
Reason:
"3. Cannot work under this system and desire transfer —
Reason: "
Nor does the court have reason to doubt the testimony of some of the plaintiffs to the effect that they did not understand what their wages would be under the two-platoon system.
The two-platoon system was put into effect at the plant on February 27, 1944, and continued in effect thereafter until December 1, 1945. This suit as to each plaintiff is limited to the time he worked under the two-platoon system. Under that system the firemen at each station were divided into two platoons. On the first day of a work-week one platoon reported for duty at 7:30 A.M. and remained on the premises until 7:30 A.M. the following day, at which time they were relieved by the other platoon. Thus, on alternate days each platoon was on the premises for 24 consecutive hours followed by 24 consecutive hours off duty. As a result, in one week a platoon was at the plant three days and off duty four days, and in the following week at the plant four days and off duty three days. The firemen were required to remain in the fire stations to which they were assigned, or within hailing distance thereof, at all times during the 24-hour periods spent at the plant. The hours from 7:30 A.M. to 11:30 P.M. were by defendants considered working time and the firemen were compensated therefor at the same base rates of pay they had received prior to the adoption of the two-platoon system, hours in excess of 40 per week being paid for at one and one-half times the base hourly rate of pay. The hours from 11:30 P.M. to 7:30 A.M. were, by defendants, considered sleeping time and the men were not paid for these hours, except when they were called out to answer fire alarms, in which cases they were compensated for time actually spent in answering the alarms, at the rate of time and one-half if the time spent was in excess of the forty-hour base period, otherwise the pay for this period was at the base rate.
The question involved here is whether plaintiffs are entitled to recover overtime compensation for the period between 11:30 P.M. and 7:30 A.M. under the operation of the two-platoon system.
Under the two-platoon system, the firemen's earnings for normal work-weeks were computed as follows:
Short week — 3 days of 16 hours each — 48 hours. Base pay — $34 for 40 hours or 85¢ per hour 40 hrs. × 85¢ — $34.00 8 hrs. × 1.275, 10.20 ______ $44.20. Long week — 4 days of 16 hours each — 64 hours 40 hrs. × 85¢ $34.00 24 hrs. × 1.275, 30.60 ______ $64.60
The average weekly pay of a fireman under the two-platoon system was, therefore, one-half of the sum of $42.20 plus $64.60, or $54.40. While under the three-shift system the weekly wage of each fireman was $44.20 and under the two-platoon system the average weekly wage of each fireman was $54.40, a great saving accrued to the defendants under the two-platoon system because of the fact that the defendants, under the two-platoon system, received the same fire protection that they received under the three-shift system, but with only two-thirds the number of men. Prior to the two-platoon system, 106 to 108 men were necessary for the three shifts. Under the two-platoon system, 68 men were necessary. There was accordingly a substantial saving of manpower and money to defendants.
The defendants furnished to the firemen in each station eating facilities, including food lockers, electric refrigerators, electric stoves, tables and chairs. The firemen purchased and cooked their own food, using their own kitchen utensils. The defendants furnished to the firemen in each station sleeping and sanitary facilities, including steel bunks, 3-inch cotton mattresses, bedding, clothes lockers, showers, toilet facilities and laundry service for bedding. The same bunk, mattress, blankets and pillow used by the off-going shift was used by the on-coming shift.
Fire Station No. 3 was a one-story wood frame building. The kitchen and sleeping quarters were both part of one room without partition. There was no kitchen sink, and the firemen were required to wash their dishes, and utensils in the lavatory. There were 10 or 12 lockers, 6½ feet high, between the kitchen and the sleeping quarters. The ceiling was considerably higher than the uppermost part of the lockers. The guards on duty and those from the squad cars would use the toilet facilities at night. To reach them they were required to go through the sleeping quarters. There was a radio which was operated continuously during the 24-hour period, and which carried police car calls every few minutes and time reports every half hour. Fire alarms also came through the radio. The radio volume was twice as loud as the ordinary radio or the normal speaking voice. The radio was located about 30 or 35 feet from the sleeping quarters. There was a railroad and crossing a short distance from the station. Plaintiffs assigned to this station testified that the radio, railroad switch, the bunks and the mattresses, the fumes from the kitchen, the guards using the sleeping quarters as a means of ingress and egress to and from the toilet and kitchen facilities, all disturbed their sleep night after night.
Fire Station No. 2 was a frame one-story building, 30 × 40 feet. There were three bunks in the sleeping quarters, which were partitioned off from the other rooms. The guards had to walk through the sleeping quarters at night to the toilet. The radio was in the office, a short distance from the sleeping quarters. Practically the same conditions otherwise prevailed as in Fire Station No. 3, except the radio in the sleeping quarters was louder than in the other two stations. The men complained about the volume of the radio at night, and were told by their superiors that the volume could not be turned down. The defendants considered the radio its "second line of defense" in the event that the alarm system was not working. The radio was also used after the firemen were alerted for a fire as a two-way communications system.
Fire Station No. 1, which was Central, was a two-story wood frame building. The sleeping quarters were on the second floor, partitioned off from the toilets and the Chief's bedroom. The sleeping quarters were 10 × 30 feet. There were 9 double bunks. The plant radio was operated 24 hours a day, as in the other fire stations. The radio was directly beneath the sleeping quarters. Between the time signals on the half hour, the radio report calls for squad cars, police radio calls, conversation between guards, fire reports, and other noises were distinctly audible and fairly understandable in the sleeping quarters. On stormy nights the alarm bells rang incessantly. The plaintiffs in Station No. 1, as well as in Stations Nos. 2 and 3, testified that they were unable to sleep uninterruptedly night after night.
Defendants introduced testimony of witnesses who slept in the same dormitory with plaintiffs and who said their sleep was not disturbed. Defendants presented the testimony of an expert on the subject of sleep and sleep habits who said that in his opinion the beds and mattresses were "definitely conducive to sound sleep" and that the radio messages were not of sufficient volume or frequency to prevent the firemen from obtaining a good night's sleep.
No recreational facilities were provided by defendants for the firemen except a place to pitch horse shoes, which was seldom used. There was a home-made ping pong table in Station No. 1. Indoor baseball and bats were furnished to the men, but there was no evidence that they were used after the adoption of the two-platoon system.
The duties of the plaintiffs were to fight fires, scrub the premises, drill, make inspections, make trial runs, pick up reports and deliver reports, fill extinguishers, attend school after supper, and to clean equipment. During the evenings, if no duties were assigned to them, the firemen were permitted to listen to the radio, play cards, or read within the station. One man at each station was required to remain up until 11:30 PM. Plaintiffs' witnesses testified that the firemen were not permitted to retire until 11:30 PM without permission. The Assistant Fire Chief Davis testified on behalf of defendants that the men were permitted to retire at any time from 9:30 on. After 11:30 PM all firemen were free to retire and no active duties were assigned to them, except when they were called out for night alarm duty. However, the testimony did show that, between 11:30 PM and 7:30 AM, a few of the plaintiffs were assigned actual duties to perform with respect to picking up laundry and driving dispatchers.
Plaintiffs testified of instances when they were docked at time and one-half for hours or minutes that they were away from the premises between 11:30 PM and 7:30 AM. Defendants' evidence on this point, was that on 40 occasions firemen were excused, without deductions from pay, between 11:30 PM and 7:30 AM, and on the 8 occasions when they were docked during the so-called sleeping period it was used as a "disciplinary measure" to prevent absences during the period without permission of the Chief.
Between the hours of 11:30 PM and 7:30 AM, as well as during the remainder of the 24-hour period, there was a production shift in the plant engaged in the manufacture or processing of bombs weighing 500 to 4000 pounds, shell loading, and other munitions processes. The greatest explosion and fire at the Elwood Plant took place between 11:30 PM and 7:30 AM on June 6, 1942, when 48 men were injured or killed.
A female dispatcher or telephone operator was on duty at all times in the Central Fire Station. The duty of the dispatcher was to answer the telephone and receive incoming fire alarms. If a fire alarm was received during the sleeping period from 11:30 PM to 7:30 AM the dispatcher would awaken the firemen by means of ringing a loud fire alarm, but the firemen in Stations No. 2 and No. 3 would not be awakened until orders had been given by the Fire Chief or Assistant Fire Chief.
During the operation of the two-platoon system, there were six occasions on which the sleeping period of the firemen was interrupted by fire alarms, three occasions when certain of the firemen were required to remain during a portion of the sleeping period at the scene of the fire which had occurred prior to 11:30 PM, and one occasion when two of the firemen were detailed for a portion of their sleeping period to stand by at the scene of certain welding operations considered to present a fire hazard. The total number of hours spent by all plaintiffs in such duty amounted to 136½ out of a total of 108,720 sleeping period hours for all plaintiffs. Four of the plaintiffs were never called out for such duty and the remainder spent time ranging from 30 minutes to 8 hours on such duty.
BARNES, District Judge (after stating the facts as above).
It is conceded by the defendants that the plaintiffs, while working under the two-platoon system, were engaged in the production of goods for interstate commerce, and, accordingly, were entitled to the benefits of the Fair Labor Standards Act.
The only issue in the case is whether, under the Fair Labor Standards Act, the plaintiffs were entitled to compensation for the eight-hour period between 11:30 PM and 7:30 AM, the so-called sleeping period.
The statute under construction here, Title 29 U.S.C.A. § 207, provides:
"No employer shall * * * employ any of his employees who is engaged in commerce or in the production of goods for commerce —
* * * * * *
"(3) for a workweek longer than forty hours * * * unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
Title 29 U.S.C.A. § 203(g), says that "`Employ' includes to suffer or permit to work." The statute thus applies only to "employees" and to "employment" in excess of the specified hours.
Were the plaintiffs employed by the defendants, that is, permitted to work, during the period between 11:30 PM and 7:30 AM? Defendants contend that the time spent by plaintiffs upon the premises of defendants during the period between 11:30 PM and 7:30 AM was predominantly for the benefit of the plaintiffs and was not working time for which plaintiffs are required to be compensated under the provisions of the Fair Labor Standards Act.
As stated above, plaintiffs were restricted to their fire stations, or within hailing distance thereof, during the entire 24-hour period. They clocked in and out but once in the 24 hours. Although substantially no active duties, other than to answer fire alarms, were assigned to them during the 11:30 PM to 7:30 AM period, they were, nevertheless, required to remain at the stations in instant readiness to answer fire alarms when called. They were under the control and direction of defendants as completely during the 11:30 PM to 7:30 AM period as during the other 16 hours. During the entire 24-hour period, when not on active duty, plaintiffs were required to and did hold themselves in instant readiness to serve when called. The court is of opinion that plaintiffs were employees of defendants in a stand-by capacity during the time they were in their bunks, as well as during the remaining 16 hours when they were not engaged in active assigned tasks. Whether they were called from sleep to active duty or from a card game to active duty made no difference. In Missouri K. T.R. Co. v. U.S. 231 U.S. 112, 34 S.Ct. 26, 27, 58 L. Ed. 144, the court held that inactive time was to be included in applying a Federal statute prohibiting the keeping of employees of carriers on duty more than sixteen consecutive hours. Referring to certain delays, the court said:
"In the meantime the men were waiting, doing nothing. It is argued that they were not on duty during this period, and that if it be deducted, they were not kept more than sixteen hours. But they were under orders, liable to be called upon at any moment, and not at liberty to go away. They were none the less on duty when inactive. Their duty was to stand and wait."
In the recent case of Armour Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 168, 89 L.Ed. 118, the court stated:
"Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer's property may be treated by the parties as a benefit to the employer."
And in Skidmore v. Swift Co., 323 U.S. 134, 136, 65 S.Ct. 161, 163, 89 L.Ed. 124, the court held:
"* * * We hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time."
The court is of the opinion that, under the circumstances of this case, the period from 11:30 PM to 7:30 AM was working time, and that the relation of employee and employer existed between the firemen and defendants during that period as well as during the preceding 16-hour period.
Defendants urge that because the so-called sleeping time of the firemen was rarely interrupted by emergency calls, such time was spent predominantly for the employee's benefit and was not working time under the provisions of the Fair Labor Standards Act.
As indicated in the above Statement of facts, plaintiffs have introduced much testimony to show that the defendants furnished such inadequate, uncomfortable and noisy sleeping quarters that their sleep was constantly interrupted, and that defendants, on the other hand, introduced evidence to show that the sleeping quarters were adequate to permit a good night's sleep. Obviously, if plaintiffs were free to sleep elsewhere, they would not have chosen sleeping quarters similar to those furnished by defendants. But the court does not believe that, under the circumstances of this case, the determination of the question whether defendants furnished adequate sleeping accommodations for plaintiffs is of vital importance. Whether plaintiffs were called from a hard bunk or a soft one or from a quiet bed-chamber or a noisy one to answer a fire alarm at night made no more difference than it did whether they were called from a game of pinochle or a game of 7-up during the day. The firemen were on the premises at night predominantly for the benefit of the defendants, as an incident of the employment and as the only practical means for getting instant service in case of fire. The only benefit plaintiffs received from the time spent on the premises during the 11:30 PM to 7:30 AM period was the wages for the time spent when actually answering fire alarms, and, as the alarms were infrequent, their earnings were accordingly small.
The court is of opinion that the time during the so-called sleeping period was spent by the firemen predominantly for the benefit of the employer.
Defendants urge that the court should accept the interpretation of the Fair Labor Standards Act made by the Administrator of the Wage and Hour Division of the Department of Labor approving the two-platoon system. The court has considered such interpretation but cannot approve it. In Sidmore v. Swift Co., 323 U.S. 134, 65 S.Ct. 161, the court said:
"Congress did not utilize the services of an administrative agency to find facts and to determine in the first instance whether particular cases fall within or without the Act. Instead, it put this responsibility on the courts."
Neither can the court be swayed by the suggestion that, if it finds for the plaintiffs, they will receive more than their services were reasonably worth. Congress has judged of the value of plaintiffs' services and the court has no power to interfere.
The court concludes that the eight-hour period between 11:30 PM and 7:30 AM constituted working time within the provisions of the Fair Labor Standards Act, and that plaintiffs are entitled to recover unpaid overtime compensation, liquidated damages, and attorneys' fees, by virtue thereof, for the period from February 27, 1944 to December 1, 1945.
The case may be set for further hearing on May 20, 1946, at 10 o'clock AM on the question of the value of plaintiffs' attorneys' services.
Counsel for the plaintiffs may prepare findings of fact, conclusions of law, and a judgment order not inconsistent with the views hereinabove expressed.