The opinion of the court was delivered by: GOURLEY
These cases are similar in nature and raise the same problem, and as a result thereof are considered and determined in one opinion.
This is an action by four (4) of the employees of American Steel Foundries, a corporation, to recover overtime compensation, plus a like amount as liquidated damages and an attorney's fee under the provisions of Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b).
Three (3) of the plaintiffs, Olearchick, Reckhause, and Toth filed their complaint on or about August 15, 1946, alleging that they had been employed in interstate commerce or in the production of goods for commerce by the defendant; that they had worked in excess of the statutory maximum prescribed by the Act; and that they had not been compensated for such excess hours at a rate not less than one and one-half (1 1/2) times their regular rate as required by Section 7 of the Act. The defendant filed its answer which admitted that during some workweeks material to the action, the plaintiffs had been employed by the defendant in work relating to the manufacture of goods for interstate commerce, and that during some of these workweeks the plaintiffs had been employed for hours in excess of the statutory minimum. It denied any liability under the Act, however, by averring that the defendant had paid the plaintiffs all amounts due and owing them, and (as a separate defense) that during any period or periods in which any of the plaintiffs were not paid overtime compensation in accordance with the provisions of Section 7 that such plaintiff was employed in a bona fide executive or administrative capacity within the meaning of Section 13(a) of the Act, and was, therefore, specifically exempt from such overtime requirements.
The facts and questions to be determined by the Court are substantially the same as the facts and questions to be determined in the case of A. Olearchick et al. v. American Steel Foundries, a corporation, Civil Action File No. 5884.
The principal differences between the two cases will be found in the fact that there are two plaintiffs in this case as opposed to four in the other, and that the accounting problem in this case is somewhat complicated by the requirement that a special method of payment of additional compensation for overtime hours must be considered. The two plaintiffs involved in this case may also meet the requirements for exemption as professional employees, and further, did not have the same job throughout the entire period so that it will be necessary at the trial of the case to consider not only the facts with regard to two different plaintiffs, but the facts with regard to the several jobs held by those plaintiffs at different times.
Two questions have been raised by the defendant in each of the proceedings:
1. Under the law, should this case be tried by the Court, or should it be tried by the Court with a jury?
2. Regardless of how the case is to be tried, is it expedient to try at the May Term of Court, 1947?
The second question has now become moot for the reason that each of these cases has been continued by the Court pending disposition of the question raised in the motion to remove the cases from the Jury Trial List for the May Term, 1947.
It is first necessary to consider the existing law as to the right of trial by jury in cases brought under the Fair Labor Standards Act for overtime compensation, liquidated damages, and attorneys' fees. There does not appear to be any existing Act of Congress or is there any provision in the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., its supplements or amendments, which specifically states one way or the other as to whether or not a right to a trial by jury shall exist.
Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following 723c, provides as follows:
'Rule 38. Jury Trial of Right
'(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by the statute of the United States ...