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January 30, 1948


The opinion of the court was delivered by: KIRKPATRICK

This suit is brought by the plaintiff Union in behalf of employees, guards at the defendant's plant, to recover overtime pay alleged to be due under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The case was tried to the court and a jury, and a special verdict consisting of answers to nine specific questions, was returned. Both the plaintiff and the defendant have moved for judgment.

Certain facts are either uncontroverted or established by credible and uncontradicted testimony and are as follows:

 The guards fall into two main categories, (a) guards who did not relieve other guards but made rounds of the plant, (b) guards who relieved other guards on fixed posts. There were also a few guards who did both in the course of one shift but they need not be dealt with in any separate category.

 Guard duty at the defendant's plant was, except in a very few instances, organized on the basis of three separate eight-hour shifts beginning respectively at 8 A.M. (A shift), 4 P.M. (B shift), and 12 P.M. (Ch shift). All the guards were required to wear, while on duty, uniforms owned and provided by the defendant.

 Taking first the guards who did not relieve other guards, it was the general practice for them to arrive at the plant about 15 minutes before the hours when their respective shifts began. As soon as they got there they punched the time clock and then proceeded to the locker room to change into uniform after which they reported to the guard captain's office to pick up guns (during such time as guns were carried) and watchman's clocks and from there went to the points where their respective rounds began, arriving at such points not later than the hour at which the shift began. These points varied in distance from the locker room from about 100 yards to four city blocks. These guards, in most instances, were able to finish their tours of duty somewhat in advance of the end of the shift. On doing so they returned to the locker room, washed, changed into civilian clothes and then punched out. If any of them punched out before the end of the shift a deduction would be made from his pay.

 The guards who relieved other guards at fixed posts customarily arrived at the plant 20 to 30 minutes before the beginning of the shift. In order to simplify this part of the statement, we may take as an example a guard on the B shift, it being understood that substantially all the guards who relieved other guards followed the same general routine. Upon arrival at, say, 3:30 he punched the time clock, changed into uniform in the locker room, went to the office of the captain of the guards, picked up a revolver, received instructions, if any, and then proceeded to a designated post to relieve the guard there on duty. He usually arrived at the post 15 minutes in advance of the hour at which the shift was to begin, which would bring him there at 3:45. When he arrived, the guard there on duty for the preceding shift left the post and returned to the locker room. The guard who had arrived took up the same duties as were being performed by his predecessor. He checked the passes of incoming employees and protected the property of the defendant; and if at a gate, he checked vehicles in and out of the plant. During the first 15 minutes he performed functions identical with those he performed throughout the balance of his shift. Thus, in the ordinary case, he would be on the post, performing guard duty in the most restricted sense of that term at 3:45 and would continue performing such duty until 11:45 when a guard on the C shift arrived to relieve him, whereupon he would return to the locker room, wash, change his uniform and punch out. If he left the company premises or punched out prior to the end of his shift (12 o'clock) he would be docked.

 All the foregoing facts and the practices described were known to and acquiesced in by the defendant at all relevant times. In January, 1945, the defendant informed the plaintiff Union that the giving of relief was 'a matter of courtesy among the guards' but did not order the practice discontinued. In July, 1946, the defendant posted notices to the effect that the guards might take the uniforms home.

 The mere fact that a guard was at the defendant's plant or on the premises, after punching in, for more than 40 hours in any week (or in terms of a 5 day week, more than 8 hours per day) does not entitle him to overtime pay. Under the Fair Labor Standards Act, overtime for which claim is made must be devoted to work. Moreover, since the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq.; regardless of the fact that the activities may constitute work under the Fair Labor Standards Act, the employer is required to pay overtime for only such of them as were compensable by either express contract or by custom or practice.

 In the present case the plaintiff's claim for overtime as to each guard is made up by aggregating three different kinds of activities: (1) 'On guard' duties -- standing at a fixed post or making rounds through the plant -- (2) changing into and out of uniform, (3) reporting to the captain's office to pick up equipment and receive instructions, walking to and from the post, turning in equipment and waiting in the locker room to punch out at the end of the shift.

 As to (1), there can be no question that the time spent on posts and on rounds is work within the Fair Labor Standards Act and is chargeable to the employer under the Portal-to-Portal Act.

 As to (2), one of the issues submitted to the jury for its special verdict was, 'Were the guards engaged in work when they were changing into and out of uniform?' The jury answered 'No'. In view of this answer no claim could be based upon this activity, entirely apart from the provisions of the Portal-to-Portal Act and even if the Fair Labor Standards Act were the only statute involved. The Supreme Court has held that the question whether an activity is work or not, within the meaning of the Fair Labor Standards Act, is one of fact to be determined by the trier of the facts. Tennessee Coal, Iron & R. Co. v. Muscoda Local, 5 Cir., 137 F.2d 176, 182, 183; Id., 321 U.S. 590, 593, 604, 64 S. Ct. 698, 88 L. Ed. 949, 152 A.L.R. 1014; Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124; Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515. The submission of this issue in the form adopted was in pursuance of the principle underlying special verdicts that the questions to the jury should relate to the ultimate facts rather than to the evidence on which such ultimate facts rest. (53 Am.Juris, Trial, Sec. 1072). But even if, in spite of the special verdict, changing into and out of uniform should be held to be work under the Fair Labor Standards Act, the employer would be relieved of liability to pay for it by the Portal-to-Portal Act. There is no evidence that it was an activity which was ever compensable either by contract or by custom. The plaintiff contends that the Union contract makes it compensable, but the provisions relied upon are merely general overtime provisions and in no way attempt to define the nature of the work for which overtime will be paid. The act does not merely require that the contract provide for payment of overtime pay but that it must expressly provide that the activities in question be compensable.

 I hold that the retroactive provisions of the Portal-to-Portal Act apply to the facts of the present case and that the Act as so applied is constitutional.

 As to (3), assuming that these activities constitute work under the decision of the Supreme Court in the Mt. Clemens case, they also are noncompensable by the Portal-to-Portal Act.

 The foregoing entirely disposes of so much of the plaintiff's claim as is based upon the activities of guards who did not relieve other guards but merely made their rounds through the plant. Although they were customarily on the premises more than 8 hours a day, none of them did compensable work for more than 8 hours. Their rounds of duty began at the beginning of ...

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