The opinion of the court was delivered by: MURPHY
Under the 3 platoon system previously in effect fire fighters worked six eight-hour shifts per week and were paid straight time for forty hours; time and one-half for eight additional hours. Under the 2 platoon system they were required to be present on defendant's premises three days per week for a twenty-four hour period each day; the first sixteen hours being considered working time, the remaining eight hours as sleeping time. They were paid each week straight time for forty hours, time and one-half for eight additional hours. They were not paid for sleeping time except when, on rare occasions in an emergency, they were called upon to work for brief periods, in which event they were paid time and one-half for the extra time actually worked.
While defendant relies upon several defenses, all of which have been the subject of considerable litigation in the federal courts:
(a) Was 'sleeping time' as such compensable under the FLSA?
(b) Was plaintiff in fact an employee of defendant? Was he engaged in interstate commerce or in the production of goods for commerce? What effect did the Walsh-Healey Act, 41 U.S.C.A. § 35 et seq., and the Act of July 2, 1940, 50 U.S.C.A. Appendix, §§ 1171-1172, have upon the applicability of the FLSA?
(c) Miscellaneous defenses.
(d) During sleeping time plaintiff was not engaged in any activity compensable by contract- oral or written- or by custom or practice.
(e) Good faith reliance upon the prior approval of the plan by the War Department and by the Wage and Hour Division of the United States Department of Labor.
We shall hereinafter address our remarks particularly to defenses (d) and (e).
Plaintiff relies upon § 16(b) of the FLSA, 29 U.S.C.A. § 216(b), to establish jurisdiction. Defendant denies that jurisdiction exists, relying principally upon § 2(d) and § 9 of the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 252(d) and § 258 respectively; the latter Act passed subsequent to the termination of plaintiff's employment.
The record consists of the complaint, defendant's amended answer, a stipulation of the respective counsel as to certain facts and of affidavits presented in defendant's behalf in connection with its motion for summary judgment. Plaintiff did not file any counter affidavits and, despite an opportunity afforded to do so, did not offer any amendment to the complaint.
In the complaint plaintiff makes no averment of contract, custom or practice as to the activity in question, and in no manner attempts to meet defendant's assertion as to its reliance upon prior administrative approval. In defendant's affidavits it is made clear that the understanding of the parties was that the activity in question was not to be compensable and that the plan had had prior administrative approval as well as the prior consent and acquiescence of all employees involved.
The record clearly demonstrates:
(1) that there was no contract, custom or practice under which the activity in question ...