111 F. Supp. 775 (1953) | Cited 0 times | W.D. Arkansas | April 30, 1953


On September 20, 1952, plaintiff filed his complaint in whichhe alleged that the defendants, operating as a partnership, wereengaged in the manufacture and production of lumber forinterstate commerce within the meaning of the Fair LaborStandards Act; that during the work weeks beginning October 26,1950, and ending January 7, 1952, defendants employed twenty-fiveor more persons in the production of lumber for interstatecommerce; that the Court has jurisdiction by virtue of Title28 U.S.C. § 1337 and Title 29 U.S.C.A. § 216(b); that the defendantsemployed the plaintiff to night watch and to clean up aroundtheir mill; that during the period from October 26, 1950, toJanuary 7, 1952, with the exception of one week when plaintiffwas off duty, defendants employed plaintiff in their place ofbusiness for eighty-four hours each week and paid plaintiff atthe rate of $150 per month; that plaintiff was entitled under theAct to a rate of pay not less than seventy-five cents per hourfor the first forty hours each week, and at a rate of pay notless than $1.12 1/2 per hour for all hours in excess of fortyeach week; that plaintiff should recover from the defendants theamount of $2724.50 for unpaid minimum wages and overtimecompensation, an additional equal amount as liquidated damages,together with costs and a reasonable attorney's fee.

On October 9, 1952, defendants filed a motion to make moredefinite and certain, to which motion the plaintiff responded onOctober 14, 1952, and on October 15, 1952, the Court overruleddefendants' motion.

Thereafter, on October 29, 1952, defendants filed their answerin which they admitted that they were operating as a partnershipand were engaged in the manufacture of lumber for interstatecommerce; that during the period from October 26, 1950, toJanuary 7, 1952, some twenty-five persons, more or less, wereemployed by them in the processing of lumber for interstateshipment; that the Court has jurisdiction to entertain the suit;and that plaintiff was employed by them as a night watchman fromOctober 26, 1950, to January 7, 1952. But, defendants denied thatplaintiff had worked in excess of fortyhours in any work week, denied that they had failed to pay himminimum wages required by law, and affirmatively stated that theypaid plaintiff at the rate of $150 per month.

On April 8 and 9, 1953, the case was tried to the Court withoutthe intervention of a jury, and at the conclusion of the trialthe Court requested counsel to furnish briefs in support of theirrespective contentions. This has now been done, and, afterconsidering the pleadings, ore tenus testimony of the witnesses,and briefs of the parties, the Court now makes and files itsfindings of fact and conclusions of law, separately stated.

Findings of Fact


The defendants, Vernon Braughton, Harley Bates, and RaymondBates, operate as a partnership, and during the period fromOctober 26, 1950, to January 7, 1952, they were engaged in theproduction of lumber for shipment in interstate commerce andemployed twenty-five or more persons, including the plaintiff, insuch production.


During the time from October 26, 1950, to January 7, 1952,plaintiff was employed by defendants at a salary of $150 permonth. The defendants kept no record of the hours worked byplaintiff. In following this practice defendants were acting ingood faith and in reliance upon advice given them by arepresentative of the Wage and Hour Division. Althoughplaintiff's salary was stated to be $150 per month, he wasactually paid $75 every two weeks.


Plaintiff was 68 years of age at the time he was employed bydefendants to night watch and to clean up their mill. He wasemployed to work from 8:00 p.m. each day until 3:00 to 4:00 a.m.the next morning, seven days a week, and was allowed an hour forsupper from 12:00 p.m. to 1:00 a.m. However, as a matter of factplaintiff was to a great extent his own boss as to the hours heworked. Sometimes, especially during the winter months, he cameto work early in order to clean up the mill before dark came.Often he would come to work as early as 5:00 p.m. At other timeshe would begin at 5:30, 6:00, 7:00 and at various other times.Usually when he came to work early, he would go home for suppersometime between 7:00 p.m. and 11:00 p.m. Also, he would oftenleave the mill at various times during the night for shortperiods of time. Frequently plaintiff did not work at all becauseof sickness or other reasons. At times plaintiff was seensleeping while he was supposed to be on duty. Plaintiffordinarily quit working and went home between 3:00 a.m. and 4:00a.m. although occasionally he stayed later than 4:00 a.m.


Defendants knew that plaintiff often began working before 8:00p.m. and made no complaint about it since plaintiff stated thathe wanted to clean the mill before dark. Plaintiff did not alwaystake an hour off to eat from 12:00 p.m. to 1:00 a.m., but none ofthe defendants had any knowledge that he sometimes worked duringthat time. Likewise, though plaintiff was at the mill later than4:00 a.m. occasionally, defendants had no knowledge of that fact.

Defendants had knowledge of the fact that plaintiff sometimesslept on the job, often left the mill for various periods oftime, and frequently did not come to work at all. Nevertheless,defendants did not discharge him, partly because they felt sorryfor him and partly because they did not want to antagonizeplaintiff's brother who also worked for them and who is and wasan excellent worker. However, defendants did "dock" plaintiff afew nights pay for not coming to work.


In January, 1951, plaintiff was off for two weeks and was notpaid for this period. Also, at other times he was docked a day ortwo at a time totaling about seven days. Thus, during the 62weeks from October 26, 1950, to January 7, 1952, plaintiff waspaid $37.50 per week for 59 weeks, a total of $2,212.50.

A consideration of all the testimony convinces the Court thatplaintiff was employed by defendants and worked seven hours anight, seven days a week, during the 59 weeks involved in thisaction.


A reasonable attorney's fee for the plaintiff is $150.


The rules of law governing actions brought under the provisionsof the Fair Labor Standards Act, are, for the most part, wellestablished.

An employer is required to pay an employee who is engaged incommerce or in the production of goods for commerce a minimum ofseventy-five cents an hour, and for any time worked in excess offorty hours during a week, the employer must pay said employeeone and one-half times the regular rate of pay. 29 U.S.C.A., §§206 and 207.

Employers subject to the provisions of the Fair Labor StandardsAct must keep records of persons employed by them and of thewages, hours, and other conditions and practices of employment.29 U.S.C.A. § 211.

A violation of the minimum wage or maximum hour provisions ofthe Act subjects the employer to liability to employees in theamount of unpaid minimum wages or unpaid overtime compensation,an additional amount as liquidated damages, a reasonableattorney's fee, and costs of the action. 29 U.S.C.A. § 216.

The burden of proof is upon the employee to establish by apreponderance of the evidence the number of hours of overtimeworked each week and the amount of wages due each pay period, andhe must produce evidence sufficient to permit a finding withoutresort to conjecture that he worked a definite number of overtimehours. Mornford v. Andrews, 5 Cir., 151 F.2d 511; Lawley & SonCorporation v. South, 1 Cir., 140 F.2d 439, certiorari denied322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578; Johnson v. Dierks Lumber& Coal Co., 8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan,Inc., D.C.N.J., 98 F. Supp. 1; Marchant v. Sands Taylor & WoodCo., D.C.Mass., 75 F. Supp. 783; Bloch v. Bell, D.C.Ky.,63 F. Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J.,63 F. Supp. 777; 169 A.L.R. 1337.

However, if an employee proves that he has in fact performedwork for which he was not compensated as required by law, andintroduces sufficient evidence to establish the amount and extentof that work as a matter of just and reasonable inference, thenthe burden shifts to the employer to come forward with evidenceof the precise amount of work performed or with evidence tonegative the reasonableness of the employee's evidence. If theemployer does not produce such evidence, the Court may awarddamages to the employee even though the result is only anapproximation. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,66 S.Ct. 1187, 90 L.Ed. 1515; Handler v. Thrasher, 10 Cir.,191 F.2d 120.

In a case somewhat similar to the instant case, the Court inBloch v. Bell, supra, at page 865 of 63 F. Supp., said:

"The complainant has the burden of establishing by competent evidence the existence and extent of overtime employment. Where the evidence is uncertain and conjectural as to the amount of overtime employment there is not sufficient substance upon which a finding can be predicated. Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172. But this does not mean that documentary evidence is necessary to establish the plaintiff's claim or that the plaintiff's evidence must establish his claim in full. Even though the evidence may be uncertain as to the exact amount of overtime employment, yet it may show very conclusively that a certain minimum amount of overtime employment actually existed. * * * In this case the complainant claims two hours overtime employment during the five regular work days of each week, and an additional four hours of overtime employment on Saturday. The evidence is too uncertain and indefinite to support the claim for the two hours during the five regular work days. During those five days he worked approximately 8 hours a day for a total of 40 hours, sometimes more, sometimes less. No accurate record is available to show whether, over the period of time in question, he exceeded or fell below the prescribed 40 hours for the first five work days. The evidence justifies the finding that the complainant worked 40 hours on the first 5 days in each of the work-weeks in question, but it is insufficient to establish how much, if any, overtime work was given during those days. Although the exact time that the complainant worked on Saturdays is not shown by the evidence, yet it is definitely shown that the complainant worked at least three and one-half hours on the Saturdays that the plant was in operation. It was in operation on all but 10 or 12 Saturdays during each year. Accordingly, the evidence is sufficient to establish the complainant's claim for overtime employment to the extent of three and one-half hours per week for 40 of the 52 weeks of the year."

The term "employ" includes to suffer or permit to work. 29U.S.C.A. § 203(g); Walling v. Jacksonville Terminal Co., 5 Cir.,148 F.2d 768. The words "to suffer or permit to work" do not meanthat permitting someone to work for a third person or theworker's own self constitutes a person an employer bound to paystatutory wages. They mean that a person is an employer if hepermits another to work for him, though he has not expresslyhired or employed him. Walling v. Jacksonville Terminal Co.,supra; Walling v. McKay, D.C.Neb., 70 F. Supp. 160. And the words"suffer" and "permit" mean with the knowledge or consent of theemployer. Fox v. Summit King Mines, Limited, 9 Cir.,143 F.2d 926, 932; Mabee Oil & Gas Co. v. Thomas, 195 Okla. 437,158 P.2d 713; 169 A.L.R. 1318.

Even though a certain period may be designated as a lunchperiod, if that time is spent predominantly for the employer'sbenefit it is "working time" for purposes of the Fair LaborStandards Act. F.W. Stock & Sons, Inc., v. Thompson, 6 Cir.,194 F.2d 493. But, if the employee is free to leave the premises anddo as he pleases during lunch time, such time is not "workingtime" within the meaning of the Act. Fox v. Summit King Mines,Limited, supra; Thomas v. Peerless Carbon Co., D.C. Tex.,62 F. Supp. 154.

Even "sleeping time" may be working time when such time isspent predominantly for the employer's benefit. Central MissouriTel. Co. v. Conwell, 8 Cir., 170 F.2d 641.

If an employer acts in good faith and has reasonable groundsfor believing that his actions are in conformity with the FairLabor Standards Act, the Court in its discretion may refrain fromawarding liquidated damages to the complaining employee. 29U.S.C.A., § 260; F.W. Stock & Sons, Inc., v. Thompson, supra;Anderson v. Avery Corporation, D.C.Mich., 84 F. Supp. 55; 21A.L.R.2d 1384, 1387.

When an employee is compensated at a weekly salary, the properformula for computing his regular hourly rate of compensation isto divide the weekly wage by the number of hours worked eachweek. Overnight Motor Transportation Co., Inc. v. Missel,316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Sawyer v. Selig Mfg. Co.,D.C. Mass., 74 F. Supp. 319.

As heretofore stated, the above rules of law are well settled,and in the instant case the disagreement of the parties is on thefacts rather than the law.

Plaintiff in his brief contends that "the evidence issufficient to establish the contention of the plaintiff that hewas employed to work 12 hours a day and that he did work twelvehours a day during the period sued for." On the other hand, thedefendants contend that plaintiff failed to prove by apreponderance of the evidence that he worked any overtimewhatsoever.

The testimony in the case is conflicting. The plaintifftestified that he was employed to work twelve hours a day; thathe worked from 5:00 p.m. to 5:00 a.m., seven nights a week forthe first ten months; that he never went home to eat, or for anyother purpose, except once when his house caught on fire; that ittook him three and one-halfto four hours to clean up the mill; and that his wife and sonoften helped him clean the mill. However, he admitted thatdefendants did not tell him to go to work at 5:00 p.m.; thatafter the first ten months he began to take off from workoccasionally; and that at the time he was employed he thought$150 per month was a fair salary for his job. He also stated thathe did not know if defendants were aware of the alleged fact thathe worked until 5:00 a.m. each morning, and he refused to statewhy he quit working for the defendants.

The testimony of plaintiff's wife and son generallycorroborates his testimony, except his wife testified that hewent to work at 5:30 p.m. But plaintiff's only non-interestedwitness, Brad Knight, who was formerly employed by defendants asa fireman on the 3:00 p.m. to 11:00 p.m. shift, testified thatplaintiff came to work at various times ranging from 5:00 p.m. to7:00 p.m.; that he often went home for supper about 7:00, 7:30,or 8:00 p.m.; that sometimes he did not come to work at all; andthat he could clean the mill in an hour's steady work. Mr. Knightoccasionally worked a double shift, i.e., from 3:00 p.m. until7:00 a.m., and he testified that on an average plaintiff quitwork at approximately 4:00 a.m.

For the defendants, Roscoe Herron, a fireman who took the placeof Brad Knight on the 3:00 p.m. to 11:00 p.m. shift, testifiedthat plaintiff left every night before 11:00, stating that he wasgoing for supper. Mr. Herron also testified that he sometimes sawplaintiff very still, but did not know if he was asleep.

Austin Edge, fireman on the 11:00 p.m. to 7:00 a.m. shift,testified that plaintiff usually quit work between 3:00 a.m. and4:00 a.m. or earlier in the morning; that sometimes plaintiff wasnot there when he came on duty; and that at times plaintiff wouldgo home for coffee, etc.

Bill Slezha, a friend of Brad Knight, testified that he visitedMr. Knight almost every night from about 8:00 or 9:00 p.m. untilKnight completed his shift at 11:00 p.m.; that four or five timesa week plaintiff would go home for varying periods of time; thatsometimes plaintiff left with his wife and granddaughter; andthat occasionally plaintiff was sick and did not come back towork after leaving.

The defendant, Vernon Braughton, testified that he toldplaintiff to begin work at 8:00 p.m. and leave from 3:00 to 4:00a.m., and that he could have an hour off at 12:00 p.m.; that hedid not know if plaintiff took the hour off; that he knew thatplaintiff often came to work before 8:00 p.m.; that plaintiff wasnot there at times but that he did not discharge plaintiffbecause he felt sorry for him; that the danger of fire around themill diminished after midnight; that after the Wage and Hourrepresentative informed them in January, 1952, of the necessityof keeping hourly records, they installed time clocks at variouslocations and required plaintiff to punch them on his rounds;that plaintiff did not state why he quit a short time thereafter,but that plaintiff had complained about punching the clock atregular intervals; and that no proceeding was instituted againstthe defendants by the Wage and Hour Division because of theirfailure to keep proper records as to plaintiff's employment.

The defendant, Harley Bates, testified that plaintiff wasabsent from work at various times and that he occasionally caughtplaintiff sleeping on the job.

The defendant, Raymond Bates, testified that numerous times hecaught plaintiff asleep or absent from the mill, but that he didnot discharge plaintiff because he felt sorry for him and did notwant to lose the services of plaintiff's brother who also workedfor defendants; and that after January, 1952, plaintiff's hourswere 9:00 p.m. to 3:00 a.m.

Miss Juanita Bates, daughter of Harley Bates and bookkeeperfor the partnership, testified that she kept time records on allemployees except plaintiff, and that plaintiff was sometimesdocked for not coming to work.

The circumstances in the case tend to support the defendants'testimony rather than that of the plaintiff. Plaintiff was 68years of age at the time he commenced working for defendants. Hishome was only twoblocks from the mill. There was very little, if any, supervisionover his work and he was for all practical purposes his own bossas to the hours he worked. Soon after he was put on a six hourshift and required to punch time clocks regularly, he left hisemployment with the defendants. These circumstances alone aresufficient to cast serious doubts upon plaintiff's testimony thathe worked 12 hours a day, seven days a week. And the fact thatplaintiff's own witness, as well as defendants' witnesses,testified directly contrary to plaintiff convinces the Court thatthere is no merit in plaintiff's contention that he worked 12hours a day, seven days a week. The question thus presented fordetermination is whether plaintiff worked any overtime for whichhe was not properly compensated, and if so, how much?

The Court feels that plaintiff has established by apreponderance of the evidence that he worked at least seven hoursa day, seven days a week, i.e., each day he worked from 8:00 4:00 a.m., with an hour off for supper. Although plaintiff didnot always take off an hour for supper, he had the right to do soand defendants had no knowledge of the fact that he did notalways take that time off. Therefore, since they had no knowledgethat he sometimes worked during this time, it cannot be said thatthey suffered and permitted him to work, and it follows that thistime was not working time. Fox v. Summit King Mines, limited,supra; Mabee Oil & Gas Co. v. Thomas, supra. The same thing istrue as to the few times plaintiff worked after 4:00 a.m., thatis, defendant had no knowledge of this fact and thus did notsuffer and permit him to work after 4:00 a.m.

In reference to the meal time, plaintiff argues in his brief,"Mr. Vernon Praughton testified that Mr. Neal was supposed totake off an hour at midnight to eat his lunch. Mr. Neal deniedthis. Even though this time was consumed in eating but Nealremained on the job it would be considered as working time."Assuming plaintiff's premise, his statement of the law would betrue. However, there was no evidence that plaintiff was requiredto remain on the job during this time, and so far as appears fromthe record, he was free to go home or do anything else during hishour off. And, in fact, he did go home most nights, although heoften went before 12:00 p.m. Consequently, this meal time cannotbe considered working time. Fox v. Summit King Mines, Limited,supra; Thomas v. Peerless Carbon Co., D.C.Tex., supra.

Plaintiff also argues that even if plaintiff slept on the jobhe would be entitled to compensation under the conditionsclaimed. It is true that if plaintiff, while sleeping, wasnevertheless spending such time predominantly for defendants'benefit, he would be entitled to compensation therefor. CentralMissouri Tel. Co. v. Conwell, supra. But, in the instant case itwas the duty of the plaintiff to keep a look out for fires, guardagainst theft, etc., and during the time he was asleep it canhardly be said that he was fulfilling his duties or spending histime predominantly for defendants' benefit. Therefore, plaintiffwould not be entitled to compensation for time he spent sleeping.(However, whether or not sleeping time is compensable in theinstant case makes little difference, since plaintiff was onlyseen sleeping on a few occasions.)

While it is true that plaintiff often came to work before 8:00p.m., and that defendants knowingly suffered and permitted him todo so, plaintiff failed to establish by a preponderance of theevidence the amount and extent of the overtime he worked before8:00 p.m. as a matter of just and reasonable inference, and anyattempt by the Court to make a finding in this respect would bepure conjecture. Especially is this true in view of the fact thatplaintiff often left the job at various times during workinghours, often left the job before 4:00 a.m., often did not come towork at all, and sometimes slept on the job. Stated differently,when the hours he worked before 8:00 p.m. are counter-balancedwith the hours he took off from work during the period from 8:00p.m. to 12:00 p.m. and from 1:00 a.m. to 4:00 a.m., the Courtcannot determine, without resort to conjecture, that plaintiffworked any more than seven hours a night. But the Court does feelthat plaintiff has establishedby a preponderance of the evidence that he was employed for atleast seven hours a night, seven days a week, and is entitled torecover for overtime compensation. Bloch v. Bell, et al., supra.

Plaintiff worked 49 hours per week and was paid $37.50therefor. Thus his regular rate of pay was 76 1/2 cents per hour,which is in excess of the required minimum wage. 29 U.S.C.A. §206. But, for the 9 hours overtime he worked each week, he wasnot paid one and one-half times the regular rate, and he isentitled to recover of and from the defendants the sum of 38 1/4cents per hour for the overtime he worked. 29 U.S.C.A. § 207.Nine hours at 38 1/4 cents per hour amounts to $3.44 1/4 per weekwhich plaintiff was underpaid for 59 weeks, and it follows thatplaintiff is entitled to recover from the defendants $203.11 forunpaid overtime compensation.

Plaintiff has asked for an equal amount as liquidated damages,but the Court feels that under the circumstances in this caseliquidated damages should not be allowed. In January, 1950,defendants were employing a night watchman under similarconditions as they later employed plaintiff, and were keeping thesame type of records on him as they later kept on plaintiff. Atthat time defendants' mill was investigated by the Wage and HourDivision and defendants were informed that everything was inorder. It was not until January, 1952, when another investigationwas made, that the defendants learned they were not in compliancewith the Fair Labor Standards Act. The fact that defendants keptproper records on all other employees except plaintiff, and thefact that the Wage and Hour Division instituted no proceedingagainst them for their violation as to plaintiff, are furtherfactors demonstrating the good faith of the defendants in payingplaintiff as they did. The Court is convinced that the defendantshad reasonable grounds for believing their actions were inconformity with the Act and that their actions were in goodfaith, and therefore plaintiff should not recover liquidateddamages. 29 U.S.C.A. § 260; F.W. Stock & Sons, Inc., v. Thompson,supra; Anderson v. Avery Corporation, supra.

Conclusions of Law


The Court has jurisdiction over the parties to and the subjectmatter of this action.


The plaintiff is entitled to recover of and from the defendantsthe sum of $203.11 for unpaid overtime compensation, a reasonableattorney's fee of $150, and costs of this action.


The plaintiff is not entitled to recover liquidated damages.

A judgment in accordance with the above is being entered today.

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