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Docket Number

No. 10493.

Attorney(S)

R. Curtis McBroom, of Fort Worth, Tex., for appellants. B.V. Thompson, of Fort Worth, Tex., for appellee. Bessie Margolin, Asst. Sol., U.S. Department of Labor, of Washington, D.C., for amicus curiae.

Judges

Curtis Longino Waller

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Smart Summary

Summary of Opinion: Skidmore et al. v. Swift Co., No. 10493 (5th Cir. June 1, 1943)

Factual and Procedural Background

This is an appeal from a judgment of the United States District Court for the Northern District of Texas (Judge James C. Wilson) dismissing the plaintiffs' claims under the Fair Labor Standards Act (FLSA). Plaintiffs (Jim Skidmore and others) were employed as firemen, elevator operators, or relief firemen by Swift & Company. They sued for overtime compensation, attorney's fees, and liquidated damages, claiming approximately $77,000 in total. All facts were stipulated and the jury was waived; the district court entered judgment for the defendant, and the plaintiffs appealed. The case does not involve questions of coverage or minimum wages.

The stipulated facts relevant to the dispute were: plaintiffs performed regular eight-hour daytime duties. In addition they orally agreed to remain in the employer's fire hall (or within hailing distance) three and one-half to four nights per week so they would be available in the event of an alarm. On those nights they were not required to perform tasks except to answer alarms, for which they received extra pay. During the period in question there were essentially no actual fires; a few false alarms occurred due to sprinkler defects. The frequency with which individual plaintiffs answered alarms varied from never to about once every fifteen months; the time to answer an alarm typically consumed fifteen to thirty minutes. The fire hall provided sleeping quarters and recreational facilities (pool table, domino table, radio), and the men could sleep or otherwise relax at their pleasure while on the premises.

Legal Issues Presented

Whether, under the Fair Labor Standards Act, an employee who remains on the employer's premises and is available to answer alarms (but who spends most of that time asleep or engaged in leisure activities) is "working" during the entire period of availability and therefore entitled to overtime compensation for those hours.
Whether the plaintiffs satisfied their burden of proof to segregate sleeping time (and other nonworking time) from compensable working time for purposes of recovery under the FLSA.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90	Cited in support of the proposition that the burden of proof was on the plaintiffs to segregate nonworking (sleeping or leisure) time from compensable working time.	The court referenced this precedent (in a footnote) as authority when stating that plaintiffs failed to meet their burden to prove the actual hours spent in various nonworking activities and to segregate sleeping time from hours allegedly worked.
Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172	Cited in support of the same proposition concerning plaintiffs' burden to segregate and prove compensable hours.	The court cited this case alongside Super-Cold Southwest Co. to support its statement that plaintiffs did not carry the burden of proof to segregate sleeping and other nonworking time from the hours they claim as compensable.

Court's Reasoning and Analysis

The court's analysis proceeded from the stipulated facts and applied statutory interpretation under the Fair Labor Standards Act. The key steps in the court's reasoning were:

The factual starting point: plaintiffs worked eight hours during the day and, by agreement, remained on the employer's premises some nights so they would be available to answer alarms. On those nights they engaged in sleep or leisure (pool, dominoes, radio) and were only required to answer alarms, for which they received extra pay. Actual responses to alarms were rare and typically occupied fifteen to thirty minutes.
The court framed the central legal question as whether an employee is "working" under the FLSA when he is sleeping or engaging in leisure activities on the employer's premises merely because he agreed to remain available in case of an alarm.
The court distinguished "availability" from "working," stating that the Act does not equate being away from home or being available with being at work: "Working" is not synonymous with "availability for work." The opinion emphasized that one must sleep whether at home or elsewhere, and sleeping is not work.
The court affirmed the administrative interpretative view (citing Interpretative Bulletin No. 13) that sleeping hours can be segregated from working hours when an employee can obtain several hours of uninterrupted sleep, using the example of a switchboard operator whose sleeping hours may be segregated from hours worked. The court stated that it thought this interpretation correct and followed it in the present context.
The plaintiffs bore the burden to prove the actual hours spent in compensable activities and to segregate sleeping time from non-sleeping hours. The court found the plaintiffs' proof deficient: they did not segregate sleeping time from non-sleeping, nor did they prove the actual hours spent sleeping, playing, dressing, or otherwise. Because the burden of proof was on plaintiffs and their proof failed, they could not recover for the night periods on which they based their overtime claims.
Given these conclusions, the court sustained the district court's judgment in favor of the defendant.

Holding and Implications

The judgment of the district court is AFFIRMED.

Direct effect: The plaintiffs' claims for overtime compensation for the time they spent sleeping or engaged in leisure activities while staying at the employer's fire hall were denied because (1) being available on the employer's premises did not, by itself, convert sleep and leisure into "working" time under the FLSA, (2) the court accepted an administrative interpretation that sleeping hours may be segregated from compensable working hours where uninterrupted sleep is obtained, and (3) the plaintiffs failed to carry their burden to segregate and prove the actual hours allegedly spent in compensable activity.

No broader changes in legal doctrine are announced in the opinion beyond the court's application of the cited authorities and the interpretative bulletin to the stipulated facts; the decision affirms the district court's judgment and resolves the dispute between these parties accordingly.

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SKIDMORE et al. v. SWIFT CO.

WALLER, Circuit Judge.

Appellants sued for overtime compensation under the Fair Labor Standards Act (U.S.C.A., Title 29, Sec. 201 et seq.), including attorney fees and liquidated damages, totalling approximately $77,000.00. All facts were stipulated, a jury waived, and judgment rendered for defendant. No questions as to coverage or minimum wages were involved.

Plaintiffs were firemen or elevator operators or relief firemen, none of whom regularly worked more than the minimum hours per week, unless time spent at the fire hall subject to call in case of an alarm is held to be "working".

Plaintiffs orally agreed that in addition to their regular eight-hour duties they would remain in the fire hall, or within hailing distance thereof, three and one-half to four nights each week so as to be available in the event of an alarm. On these nights they were not required to perform any tasks except to answer alarms, for which they received extra pay.

No fires occurred during the period under consideration, but there were a few occasions when a defect in the sprinkler system would automatically set off an alarm.

Plaintiff Millican never answered an alarm. Dennis answered one alarm on the average of every two and three-tenths months. Skidmore answered one on the average of each two and one-half months. Rousey averaged one alarm in each fifteen months. Phennell and Hayes each answered only one alarm in two and one-half years. Roark averaged answering one alarm every five months. The time consumed in answering an alarm was ordinarily from fifteen to thirty minutes.

Plaintiffs claim the right to be compensated in overtime wages for the entire time they were in the fire hall, available in case of an alarm.

The fire hall was equipped with steam-heated, air-conditioned sleeping quarters, with a pool table, domino table, and radio for the comfort, convenience, and relaxation of the men. Plaintiffs could retire at their pleasure and sleep throughout the night unless one of the rare alarms sounded, in which event they responded and were paid for so doing.

These facts give rise to the inquiry whether under the Fair Labor Standards Act an employee is working when he is sleeping, playing pool, dominoes, or the radio, merely because he has agreed to stay on the employer's premises and be available in case of an alarm.

The mere fact that a servant has agreed to live on the place does not justify the conclusion that he is engaged in commerce even though his employer may be. One must sleep whether at home or abroad, nor is he at work when he is asleep. The vice of long hours of toil is not present here. The employees worked eight hours during the day and rested, relaxed, played, or slept on nights in the hall according to the pleasure of each.

Certainly plaintiffs are not entitled to recover overtime compensation for sleeping.

Paragraph 6 of Interpretative Bulletin No. 13 expresses the view that a switchboard operator in a small telephone exchange, who has her bed alongside the switchboard, and who during the night is sometimes awakened by the alarm bell when a call comes in, but who is able to get several hours of uninterrupted sleep every night, as experience over several months can demonstrate, should have her sleeping hours segregated from the hours worked. We think this interpretation is correct.

The Act does not require payment of wages to an employee merely because he is away from home. Nor does the Act undertake to regulate or restrict reasonable and bona fide agreements whereby an employee agrees to be available if needed. "Working" is not synonymous with "availability for work".

Plaintiffs, in their proof, have failed to segregate sleeping time from non-sleeping, pool, domino, and radio, playing time. Even if the plaintiffs had been entitled to recover for hours spent in boredom, or waiting for bedtime, or an alarm, the proof wholly fails to prove the actual hours spent either in sleeping, playing pool, dominoes, or radio, dressing, shaving, bathing, or in any of said enterprises, the burden of which was on the plaintiffs.

Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90. Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172.

The judgment below is affirmed.

SKIDMORE v. SWIFT CO