We therefore conclude that the Fair Labor Standards Act of 1938 is applicable to plaintiffs as employees of defendant Fuel Company.
In arriving at this conclusion, we attach no significance to the fact that barges of coal belonging to other companies, and destined to go into interstate commerce, were occasionally tied up to defendant Fuel Company's landing without charge.
It next remains to be determined whether by applying the Fair Labor Standards Act to the facts of this case, the plaintiffs are entitled to any recovery. This Act was enacted June 25, 1938, and went into effect one hundred and twenty days from the date of its enactment, or on October 24, 1938. From the summer of 1937 until December 1, 1938, plaintiffs were paid monthly salaries; Rice receiving $ 200 per month, and Shepler, $ 190 per month.
Late in November 1938, defendant Crucible Fuel Company concluded that in order to comply with the Fair Labor Standards Act, the wages of the plaintiffs should be computed and paid on an hourly basis. Accordingly from December 1, 1938, until May 1, 1942, when this landing was discontinued and these plaintiffs were dismissed, their wages were computed on an hourly basis for a forty-hour week, with time and one-half for all hours over forty hours in each week. The hours worked by each plaintiff were recorded in a time-book signed by each plaintiff weekly. The rate per hour was fixed for Shepler at 46 cents for the first forty hours of each work week, and 69 cents per hour for all hours worked over forty hours each week. The rate fixed for Rice was 48.4 cents per hour for the first forty hours of each work week, and 72.6 cents per hour for all hours worked over forty hours each week. Beginning April 1, 1941, seamen employed on river craft in the Pittsburgh district were given a wage increase of 80 cents per day. Accordingly the wages of plaintiffs were increased by adding 6 cents per hour to the ordinary hourly rate of each man, and 9 cents per hour on the overtime rate. The daily work-day was fixed at eleven hours per day; and from January 1, 1942, to May 1, 1942, when the landing was discontinued, each man was permitted to be absent from work on one day per week, but was paid as though he worked the usual eleven hours that day.
At the time the change was made from the monthly rate basis of pay to the hourly basis, the plaintiffs were told by Ritts, who had charge of the River Transportation of the Fuel Company, that in order to comply with the Fair Labor Standards Act, the Company must transfer them from monthly to hourly wage rates on the basis of eleven hours per day on a seven-day week basis; that if that arrangement was not satisfactory to them, it would be necessary for the Fuel Company to add at least one man, and possibly two additional men, to work at this landing, which would result in a decrease of the hourly pay for time and over-time. The plaintiffs objected to additional men, and stated they preferred to work their established schedule of hours at the new hourly rates.
On these facts we are of the opinion that defendant Fuel Company has discharged its obligations to the plaintiffs under the Fair Labor Standards Act, and that the plaintiffs can recover nothing in this case. Under the Fair Labor Standards Act, the parties may legally agree upon the regular rate to be paid by the employer to the employee, so long as that rate equals, or exceeds, the minimum required by the Act. See Walling v. A. H. Belo Corporation, 316 U.S. 624, 62 S. Ct. 1223, 86 L. Ed. 1716.
That is just what the parties did in the instant case. They agreed upon an hourly rate on the basis of a forty-hour week, at a rate which exceeded the minimum required by the Act, and agreed upon time and a half for all work beyond the forty-hour week period. True it is that both plaintiffs testified that they did not agree to the new hourly rate. But from all the evidence in the case, we must find that they did agree to it. In fact, by continuing to work under the new arrangement, a new contract was created. See Williams v. Jacksonville Terminal Co. 315 U.S. 386, 62 S. Ct. 659, 86 L. Ed. 914.
And finally, as to plaintiffs' claim for an extra hour's wages covering their luncheon periods, we find no merit in this contention. Certainly, a claim for wages for that period is not a claim for wages under the Fair Labor Standards Act, as we find no provision therein for payment of wages for a luncheon period.
Our findings of fact and conclusions of law are filed herewith. An order for judgment dismissing the complaint may be submitted on notice to opposing counsel.
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