Opinion
No. 21302.
January 9, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOHN R. JAMES, J.
Daniel L. Brenner, Wilfred Wimmell, Roach, Brenner Wimmell, Kansas City, Leon E. Hickman, Smith, Buchanan Ingersoll, Pittsburgh, Pa., for respondent.
Rufus Burrus, Independence, for appellants.
This is an appeal from the order of the trial court sustaining a motion to dismiss, filed by respondent (defendant) to the petition of plaintiffs.
During the recent war defendant operated a plant in Kansas City, Missouri, where it manufactured cylinder heads for aircraft. Production at this plant was begun in the spring of 1943 and discontinued in June, 1945. Plaintiffs were employees at this plant. Their employment terminated upon the discontinuance of production in June, 1945.
This suit was brought on January 11, 1947. Plaintiffs seek to recover, for themselves and others similarly situated, overtime wages alleged to be due them and for penalties and attorneys fees as provided by the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The activities for which it is claimed compensation was not paid are described in paragraph 7 of the petition as follows:
"Plaintiffs state that they, and other similarly situated parties, were required to and did perform various and sundry duties for and on behalf of the defendant for which they were not compensated; that they were required to and did arrive at the plant and scene of their employment in advance and prior to the hour for which defendant paid them and that they were required to and did remain at the scene and place of their employment after the time for which defendant paid them, in order to change into and from the clothing required by the defendant to be worn at their work and to prepare their work and machinery for actual operation, to obtain and to turn in materials, tools, and equipment incidental to their employment at such time and place. Plaintiffs state that in the performance of their assigned duties for the defendant, they, and such other similarly situated employees, were required to and did work for approximately one hour additional time each day of their employment at such plant and that such mental and physical exertion was controlled and required by the defendant and necessarily and primarily for the benefit and profit of the defendant and its production of goods for commerce."
The petition contains no other allegations describing the services performed for which additional compensation is claimed. It contains no allegations whatsoever that there was any agreement, custom or practice under which these activities were compensable.
Defendant filed its motion to dismiss the petition for seven reasons. The first two are as follows:
"1. The petition does not state a claim upon which relief can be granted.
"2. It appears from the face of plaintiffs' petition that by this action plaintiffs and each of them seek to enforce liability against defendant, and to impose punishment upon defendant with respect only to certain alleged activities of said plaintiffs while employed by defendant. However, said alleged activities were and are not compensable by reason of the provisions of Subsections (a), (b) and (c) of Section 2 of the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 252(a-c), passed by the Congress of the United States on May 1, 1947. Therefore, as expressly provided by Subsection (d) of Section 2 of said Portal-to-Portal Act of 1947, this court has no jurisdiction of this action and is deprived of all jurisdiction herein."
Pursuant to the provisions of Section 61 of the New Code of Civil Procedure, Mo. R.S.A. § 847.61, defendant filed with its motion affidavits of M. W. Hodgdon, who had been plant manager for defendant at Kansas City, and J. F. Welborn who had been director of personnel, that no contract, custom of practice existed whereby the activities alleged in plaintiffs' petition were compensable. The depositions of four of the plaintiffs were taken and submitted with the two affidavits in support of the motion to dismiss. The parties stipulated that this be done. These depositions clearly show that there was no contract, agreement, custom or practice by which the plaintiffs would be paid for any of the activities described in either the petition or the depositions.
As stated, the court sustained defendant's motion to dismiss. The order or dismissal is general and does not show whether it is based on one or more of the grounds assigned.
An appeal was taken to the Supreme Court by plaintiffs. Since the amount involved did not affirmatively appear that court transferred the case to this court for lack of jurisdiction.
On June 10, 1946, approximately a year after the employment of the plaintiffs had terminated, the Supreme Court of the United States decided Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L.Ed. 1515. The opinion in the Anderson case indicated that time spent in walking on an employer's premises and in make-ready activities would be compensable under certain circumstances. Employees began filing suits for additional compensation for activities which had never been compensable.
A storm of protest arose all over the nation. This resulted in the passage by the Congress of the United States on May 1, 1947, of Amendments to the Fair Labor Standards Act, known as the Portal-to-Portal Act, which Act was approved by the President on May 14, 1947, 29 U.S.C.A. §§ 251-262.
Part 1 of this new statute contains various findings made by the Congress as well as a statement of the congressional policy sought to be effectuated by means of the new legislation. This portion of the statute demonstrates that the Fair Labor Standards Act as passed by the Congress and interpreted by the Supreme Court had produced results so inimical to interstate commerce, the public finances, the national defense and the general welfare, that the Congress felt impelled to change the law and thereby put an end to the evils consequent upon it.
Part 2 of the Act provides:
"(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either — (1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or (2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.
* * * * * *
"(d) No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after the date of the enactment of this Act, to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section."
The petition filed in the case at bar is the usual "Portal-to-Portal" petition The only activities for which additional compensation is sought in the petition are described in paragraph 7, which we have heretofore set out. It is defendant's position that since plaintiffs' petition does not allege that the activities, for which compensation is sought, are compensable by an express provision of a contract, or by custom or practice, the trial court had no jurisdiction, and the petition was properly dismissed.
There seems to be little basis for claiming that plaintiffs' petition is sufficient. The decisions firmly establish that the Court is deprived of jurisdiction by Section 2(a) (1), (d) of the Portal-to-Portal Act, 29 U.S.C.A. § 252.
Petitions containing similar allegations have been dismissed in so many cases that the soundness of the rule cannot now be questioned. A great number of these cases are cited in respondent's brief. In 3 A.L.R.2d at page 1143, there is a list set forth by the annotator covering more than a page. Typical of the holding of these decisions is the case of Kemp et al. v. Day Zimmerman, Inc., 239 Iowa 829, 33 N.W.2d 569, loc.cit. 579, where the Supreme Court of Iowa, after a thorough review of the authorities, held that dismissal of the petition was proper, and said: "But since the effective date of the latter Act, all petitions and complaints in pending actions of the kind at bar, whether filed before or after said date, not alleging that the overtime compensation and the liquidated damages were compensable under an express provision of a written or nonwritten contract, or under a custom or practice, in existence during the overtime period, are vulnerable to a motion by the employer-defendant to dismiss the action."
In Seese v. Bethlehem Steel Co., D.C., 74 F.Supp. 412, affirmed 4 Cir., 168 F.2d 58, suit was brought on February 19, 1947 by Seese and more than one hundred additional employees to recover wages and liquidated damages for alleged overtime work under the Fair Labor Standards Act. The petition contained allegations similar to Paragraph 7 of the petition in the instant case. After the enactment of the Portal-to-Portal Act defendant filed a motion to dismiss which the court sustained. In discussing the effect of the Act the court said 74 F.Supp. loc.cit. 416: "When we look at the wording and structure of the Portal Act we find that it was clearly intended to define what activities claimed to create a liability for overtime work were made compensable. Thus the language reads — `No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, * * on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either — ' contract, custom or practice. It will be noted that the Act in this respect is not limited to portal-to-portal activities as such but defines the essential characteristics of any alleged liability for non-payment of minimum wages or overtime compensation. None are to be compensable `except an activity which was compensable by either — ' contract, custom or practice. Furthermore, while the language includes the word `except', it seems entirely clear from the whole wording that the exception is the only activity which is compensable. Therefore the complaint is legally sufficient only when it alleges activities that are compensable under the Fair Labor Standards Act as amended by the Portal-to-Portal Act. Conversely, the complaint does not state a legal liability unless it alleges compensable activities." (Italics theirs.)
Plaintiffs claim that the motion to dismiss should not have been sustained because their petition seeks to recover for uncompensated overtime not confined to portal-to-portal activities. On page 10 of their brief they say: "The petition seeks to recover for uncompensated overtime not only for portal-to-portal activities but also for work and labor actually rendered which does not fall within the condemnation of the Portal-to-Portal Act." This is a misconception of the effect of the amendments to the Fair Labor Standards Act resulting from the Portal-to-Portal Act. Part 2 of the latter act says: "No employer shall be subject to any liability * * * on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act" except by contract, custom or practice. (Italics ours.) This language is clear. As said in the well-considered opinion in the Seese case, supra: "It will be noted that the Act in this respect is not limited to portal-to-portal activities as such but defines the essential characteristics of any alleged liability for non-payment of minimum wages or overtime compensation. None are to be compensable `except an activity which was compensable by either — ' contract, custom or practice." (Italics theirs.)
In Kemp v. Day Zimmerman, Inc., supra, plaintiffs made the same claim as is made here that the Portal-to-Portal Act did not prevent a recovery because the overtime involved was not spent in typical portal-to-portal activities. In rejecting the plaintiffs' contention, and in sustaining the dismissal the court said, 33 N.W.2d loc. cit. 590, 591: "Plaintiffs contended in oral and printed arguments that the overtime involved was not spent in typical `portal-to-portal' activities — just before starting time and after quitting time — but was during `the period from whistle to whistle'. Such period would appear to be `regular time.'" After referring to the statute the court says: "It is clear and unambiguous. Just two essentials for compensability are stated — an express provision of a contract, or a custom or practice. They are the requisites of both section 2(a), subsections (1) and (2), and of section 2(b). Everything else is eliminated. The kinds of activities are not designated or delimited. But to be compensable or within the jurisdiction of the court, the requirements of section (a) and (b) must be met. Even if the activity be `work done within the workday proper', as plaintiffs assert was the case, it must be `under such contract provision or such custom or practice.' It is so stated in section 2(b)." (Italics ours.)
In Sinclair v. United States Gypsum Co., D.C., 81 F.Supp. 365, loc. cit. 366, it is said: "Plaintiffs' attorney, however, insists that their alleged overtime work was not preliminary or postliminary but was an integral part of the principal activities * * *." Rejecting this the court said: "Plaintiffs cannot recover for alleged overtime work unless they allege and prove that this work was compensable under some effective `written or nonwritten contract' or `a custom or practice in effect, at the time of such activity.'" Citing cases.
In Boerkoel v. Hayes Mfg. Co., D.C., 76 F.Supp. 771, loc. cit. 775, it is said: "Plaintiff contends that section 2 of the Portal-to-Portal Act is not applicable because his suit is not based on strictly portal-to-portal activities, that is, activities preliminary or postliminary to his principal activities. However, this contention ignores the plain wording of that section, which covers all activities and claims arising prior to the passage of the Act and determines the compensability of all activities during an employee's day."
In Shaievitz v. Laks et al., D.C., 80 F. Supp. 241, loc. cit. 243, it is said: "Plaintiff urges two reasons for distinguishing this case from the vast majority of decisions. He asserts that the present action is not for so-called portal-to-portal activities. Most of the thirty-odd opinions on this question carefully point out that the suits under consideration therein concern such activities. * * * It would appear, however, that the amending Act does apply to all suits under the 1938 Act."
In Amelbo et al. v. Pennsylvania Salt Mfg. Co., D.C., 83 F.Supp. 456 it is said, that "the weight of authority would seem to be that the Portal-to-Portal Act applies to all claims for overtime."
Plaintiffs have cited the cases of Twigg v. Yale Towne Mfg. Co., D.C.N.Y., 7 F.R.D. 488, and Deaton v. Titusville Bldg. Corp., D.C.N.Y., 72 F. Supp. 986, in support of their contention that the motion to dismiss should not have been sustained. These two decisions have since been overruled in New York and have not been followed elsewhere. See Borucki v. Continental Baking Co., D.C., 74 F.Supp. 815; Shaievitz v. Laks et al., 80 F.Supp. loc. cit. 242. Plaintiffs also cite the decision of Conwell v. Central Missouri Telephone Co., D.C., 74 F.Supp. 542, 545. In that case, however, the suit did not involve additional activities, but plaintiffs had put in more hours in doing their work as telephone operators than they had been paid for. The opinion quotes the language of Senator Ferguson, a member of the Judiciary Committee, who actively participated in the preparation and passage of the Portal-to-Portal Act as follows: "`I answer by saying that it is the intent of the section referred to abolish every known claim that could exist under the Fair Labor Standards Act (29 U.S.C.A. § 201 et seq.) the Walsh-Healey Act (41 U.S.C.A. § 35 et seq.) or the Bacon-Davis Act (40 U.S.C.A. § 276a et seq.) — specifically under the acts and by virtue of nothing else than the acts, except claims which may arise under any express or implied contract. It wipes out all claims that are specifically provided for in the acts referred to. I think it was the intention of the drafters of the legislation to wipe out everything under those acts that was not based upon contract of custom or practice. That was the intention.'" (Italics ours.)
It then says: "This statement seems to agree with the statements of most other Senators who discussed the matter." The effect of the holding in that case is that the allegations of the petition there considered, implied, if not clearly expressed, an agreement to pay and were sufficient under the Portal-to-Portal Act.
Finally, plaintiffs say that this case should not be disposed of upon the motion to dismiss; that the trial court should have given them an opportunity to amend, and that defendants should be compelled to file an answer setting up the Portal-to-Portal Act.
Plaintiffs did not ask leave to amend in the trial court. They were content to appeal. They are not now in a position to convict the trial court of error in this respect. Nor should defendant be compelled to file an answer setting up the Portal-to-Portal Act. Section 2 of that Act deprives both the State and the Federal Courts of jurisdiction of all suits on account of any activity of an employee engaged in prior to the enactment of the Act, except activities compensable by an express provision of a written or nonwritten contract, or by custom or practice, in effect at the time of such activity. Under section 61 of our New Code lack of jurisdiction over the subject matter may be raised by motion whether or not the same may appear from the pleadings or other papers filed in the cause.
The action of the trial court in dismissing the petition should be affirmed. It is so ordered. All concur.