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April 4, 1947


The opinion of the court was delivered by: MCVICAR

This is an action by sixty two plant guards of the defendant to recover from defendant unpaid overtime compensation, liquidated damages, attorneys fees and costs, in accordance with the provisions of the 'fair Labor Standards Act of 1938.'

The question involved is whether plaintiffs are entitled to be paid on the basis of a twenty four hour day for time that they spent for the defendant as plant guards during a strike at defendant's steel plant in Pittsburgh in 1946.

 The Jones & Laughlin Steel Corporation, defendant, owns a large plant for the manufacture of iron and steel, situate on the north and south sides of the Monongahela River in the City of Pittsburgh. It has a large number of employees. It is engaged in interstate commerce. The sixty two plant guards were employed as plant guards by the defendant during the months of January and February, 1946 and the most of them had been in said employ for a number of years prior thereto. The plaintiffs were members of a union. It became known that a strike of the production workers at said plant had been called for January 21, 1946. The production workers started to go off duty January 18, 1946.

 Captain Nicholson was over the plant guards. He advised these men that in event of a strike, it would become necessary for them to bring their clothes and to stay in the mill during the time of the strike. On January 18, 1946, the men were notified of the strike. They were advised to bring in their clothes and to stay at the mill. They did so until the strike was over February 9, 1946.

 During the time of the strike, the mill was picketed. Passes were procured by the plaintiffs so that they could go through the picket lines. During the time the men were in the mill, they were fed by defendant, the food being satisfactory. They were furnished cots located at different places in the mill to sleep upon. These cots, by reason of being without springs and the other comforts of a bed and also by reason of being located where there was noise and confusion, affected the amount of sleep which the men could get. Probably six hours was the maximum sleep or rest that any plaintiff got while off duty each day.

 The men worked on eight hour shifts; they were eight hours on duty, then eight hours off; that meant that they were sixteen hours on duty, eight hours off on a given day; the following day, they would be eight hours on duty, sixteen hours off. It made an average number of hours on duty of twelve hours per day. The men were subject to call at all times, as it was not known by reason of the strike condition when they would be needed. They were only called a comparatively few times.

 The men could not leave the mill without permission of the defendant. They did not do so. The result was that during the time of the strike, the men had to leave their homes and usual sleeping places and any and all other avocations or associations that they may have had. The men were allowed to play games such as chess while off duty. Motion pictures were presented once or twice a week. Radios were located at some places in the mill. The entire twenty four hours, however, was spent by the plaintiffs predominantly for the benefit of the defendant and not for the benefit of the plaintiffs.

 The Fair Labor Standards Act of 1938 provides in Section 16(b) that: 'Any employer who violates the provisions of section 6 or section 7 of this act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.'

 It provides in section 7(a), 29 U.S.C.A. ยง 207 (a), that: 'No employer shall * * * employ any of his employees who is engaged in commerce or in the production of goods for commerce * * * 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.'

 The question arises under this Act how long was each plaintiff employed each day during the period in controversy. No case has been cited in which the facts are the same or substantially the same as the facts in this case. However, the Supreme Court has laid down some rules for guidance in the interpretation of the above Act.

 In Skidmore et al. v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 163, 89 L. Ed. 124, which was a fire guards case, the Court in an opinion by Mr. Justice Jackson, stated:

 'For reasons set forth in the Armour case (Armour & Co. v. Wantock), 323 U.S. 126, 65 S. Ct. 165, (89 L. Ed. 118) decided herewith we hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time. We have not attempted to, and we cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time. Whether in a concrete case such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S. Ct. 332, 87 L. Ed. 460. This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged. His compensation may cover both waiting and task, or only performance of the task itself. Living quarters may in some situations be furnished as a facility of the task and in another as a part of its compensation. The law does not impose an arrangement upon the parties. It imposes upon the courts the task of finding what the arrangement was.

 'We do not minimize the difficulty of such an inquiry where the arrangements of the parties have not contemplated the problem posed by the statute. But it does not differ in nature or in the standards to guide judgment from that which frequently confronts courts where they must find retrospectively the effect of contracts as to matters which the parties failed to anticipate or explicitly to provide for.'

 Also that 'each case must stand on its own facts.'

 'We think the Labor Standards Act does not exclude as working time periods contracted for and spent on duty in the circumstances disclosed here, merely because the nature of the duty left time hanging heavy on the employees' hands and because the employer and employee cooperated in trying to make the confinement and idleness incident to it more tolerable. Certainly they were competent to agree, expressly or by implication, that an employee could resort to amusements provided by the employer without a violation of his agreement or a departure from his duty. Both courts below having concurred in finding that under the circumstances and the arrangements between the parties the time so spent was working time, we therefor affirm.'

 It therefore appears that the Supreme Court has determined that each case is to stand on its own facts; that the Court in applying the Act, should consider the contract between the employer and the employees; the nature of the service; the living quarters; all the arrangements made and the surrounding circumstances for the purpose of determining whether the time spent for which compensation is claimed under the Act, was predominantly for the benefit of the employer or the employees.

 Under the above provisions of the 'Fair Labor Standards Act of 1938', and in light of the rules of interpretation as laid down by the Supreme Court in the above cases, plaintiffs are entitled to be paid upon the basis of a twenty four hour day during the time that they were in defendant's mill, less time off when employees left premises with the permission of the defendant.

 The defendant owned and operated a large steel mill. Plant guards were essential for the protection of their property. The plaintiffs were plant guards not only during the time of the strike but the most of them for many years prior thereto. They ordinarily worked a regular shift each day; they resided in their own homes. The strike in 1946 in the defendant's mill increased the danger to defendant's property. Defendant realized this. Consequently it made arrangements with the plaintiffs to leave their homes to stay in the mill during the entire time of the strike; the men to to bring their clothes with them. The men, being notified, brought their clothes with them, they stayed in the mill during the entire time of the strike, except some short times in which defendant gave them permission to leave the premises. The men were furnished with cots which were rather a poor substitute for beds at home. They had little chance of recreation; they were subject at all times to call of defendant for the purpose of protecting the defendant's property. The men were told prior to the strike, that they would be paid on the same basis as during the 1937 strike, which was on the basis of a twenty four hour day. They were paid on this basis during the first two days of the 1946 strike, then for some reason, a change was made, and they were paid on the basis of a forty hour week with time and one-half for overtime.

 The men worked eight hour shifts. They probably did not get more than six hours rest a day. They were called a number of times while off duty for service. The average time off duty each day was 10 1/4 hours, but the use of this time to the plaintiffs was affected by reason of the rotating shifts. The entire twenty four hours spent each day in the mill by each plaintiff was predominantly for the benefit of the defendant and not for the plaintiffs.

 Let an order for judgment be prepared and submitted in accordance with the foregoing findings of fact, conclusions of law and this opinion.

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