FOREMOST DAIRIES v. IVEY

RIVES, Circuit Judge.

Appellees, plaintiffs below, recovered amounts aggregating $6,350.95 plus attorney's fees of $2,000 under the maximum hours provisions of the Fair Labor Standards Act, 29 U.S.C.A. §§ 207, 216. Because of the full statement contained in the opinion of the District Court reported at 106 F.Supp. 793, we forego a lengthy delineation of the facts.

Appellant's specification of the errors relied upon contained in its brief pursuant to Rule 24(2) (b) of this Court1 is broader and includes rulings not mentioned in its statement of points made under Rule 75(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A.2 Relying upon Bennett v. Scofield, 5 Cir., 170 F.2d 887, 889, the appellees insist that matters not included in the appellant's statement of points should not be considered by this Court. In that case, however, the complete record was not sent up; while the record on appeal in this case includes all of the pleadings and evidence and the opinion and judgment of the court. Since the only purpose of the statement of points under Rule 75(d), supra, is to assure a record adequate for their consideration, we think that we should consider all of appellant's specification of errors.

Therein, appellant complains: (1) that plaintiffs failed to prove the number of hours they worked overtime; (2) that eight of the plaintiffs were exempt under 29 U.S. C.A. § 213(b) (1)3 from the maximum hours provisions of the Act; (3) that the proof was not sufficient to show that plaintiffs Barrett, Alford and Wise were engaged in the production of goods for commerce.

The contract under which the employees worked provides in part: "Nine (9) hours shall constitute a regular day's work and fifty-four (54) hours shall constitute a regular week's work". Records were kept reflecting the number of days but not the number of hours per week worked by each man. One of the employees testified that by "sort of a mutual understanding between the Superintendent and the boys" they worked some days more than nine hours and some days less "so that it would equalize itself". There was no evidence to the contrary. We think that the record and reasonable inferences made out a prima facie case, and that the burden shifted to the employer to come forward with countervailing evidence. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515.

The basis of the claim of exemption under 29 U.S.C.A. § 213(b) (1) is that the regular duties of eight of the eleven plaintiffs included loading defendant's trucks with goods unloaded from out-of-state freight cars and affected the safety of operation of vehicles carrying goods in interstate commerce. There is no specification of error that any of the plaintiffs were exempt as drivers and the claim is confined to loaders.

None of the plaintiffs were full time loaders. Eight of them from time to time went to railheads approximately three miles from defendant's plant where they rolled cans of condensed cream and milk out of the refrigerated box cars and loaded them on to defendant's truck for transportation to the plant. The appellees insist that the short haul from the rail siding to the plant was not interstate commerce, but we think that under the principle stated in Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460, there was "a practical continuity of movement of the goods" until they reached the plant for which they were intended.

The cans full of milk or cream weighed about 108 pounds each. It was necessary to put "plugged" cans on the bottom, and "umbrella" lids on top, otherwise the cans on top would fall over. A rope would usually have to be tied across the back of the truck to keep the cans from falling out.

The burden of proving that each of the plaintiffs fell within the exemption rested upon the defendant. Coast Van Lines v. Armstrong, 9 Cir., 167 F.2d 705, 707. The evidence as to the extent to which each of the eight plaintiffs engaged in loading is fairly summarized by the appellant as follows:

   "Name               * * * Trips to Railhead
  "Jesse Ivey .......... * Ten (Total).
  "Lee G. Nunley ....... * Two or three trips per
                           week during winter (skipping
                           some weeks); a few
                           trips during the summer
                           months.
  "Harvey Dunn ......... * Seven (Total).
  "Luther McCollister .. * An average of once per
                           week during the winter
                           months, skipping some
                           weeks. Very seldom in
                           the summer.
  "Loyd A. Williamson    * An average of once per
                           week in winter months
                           and somewhat less during
                           summer months.
  "Paul Ivey ........... * Every week during the
                           winter.

While there is considerable conflict, the preponderance of the evidence shows that the plaintiff Paul Ivey was usually in charge of the loading though Ivey admitted that there were times when an unnamed colored employee drove and loaded the truck. Paul Ivey testified in part:

Under 29 U.S.C.A. § 213(b) (1) to exempt an employee from the maximum hours provisions of the Fair Labor Standards Act it is necessary only that the Interstate Commerce Commission have "power" to establish his qualifications and maximum hours of service. Safety of operation is the key phrase for the test of that power. United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. In Morris v. McComb, 332 U.S. 422, 431, 68 S.Ct. 131, 135, 92 L.Ed. 44, referring to Levinson v. Spector Motor Service, 330 U.S. 649, 674-675, 67 S.Ct. 931, 91 L.Ed. 1158, the court said:

Morris v. McComb, supra, involved drivers for a common carrier and this court's opinion in Kerr v. Jeans, 5 Cir., 193 F.2d 572, involved a driver for a private carrier. Full time loaders were involved in Levinson v. Spector Motor Service, supra, and employees who were engaged in loading during only parts of their time were involved in Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184. It is not necessary to restate the law as fully set forth in the opinions in those cases. Our conclusion is that the defendant met its burden of proof insofar as Paul Ivey was concerned, but not as to the other seven of these eight employees. The proof was not sufficient to establish as to those seven that during any substantial part of their work time they shared in the exercise of discretion as to the manner in which the loading was done. See Pyramid Motor Freight Corp. v. Ispass, supra; McKeown v. Southern California Freight Forwarders, D.C.Cal., 49 F.Supp. 543.

Barrett was a gas pump attendant. He described his duties as: "I gas up all the trucks and after they were in I would check oil and carry it out to them, and radiators." He serviced the trucks that went out after the railroad shipments and the few trucks which carried milk and ice cream to out-of-state customers. Alford was a maintenance man in the milk vaults. He also helped load out the milk trucks and the ice cream trucks, one of which went out of state four times a week during the summer months and once a week during the winter months. Wise operated a bottle washing machine, washing all bottles used by the defendant. It was stipulated that, "except for going down to the railroad stations, his duties were the same as this man (Jesse Ivey) and the wages were the same as his". We do not think that the court erred in holding that Barrett, Alford, and Wise were engaged in the production of goods for commerce.

By cross-appeal the appellees complain of the action of the district court in denying plaintiffs' claims for liquidated damages and for interest. Section 11 of the Portal to Portal Act of 1947, 29 U.S.C.A., § 260, provides in effect that, if the employer shows to the satisfaction of the court that he acted in good faith and had reasonable grounds for believing that he was not violating the Fair Labor Standards Act, then, the court in its sound discretion may award no liquidated damages. The employees during the period covered by the complaint were paid in accordance with the provisions of a collective bargaining agreement between the defendant and the Teamster's Union. When the question of coverage under the Fair Labor Standards Act arose during the course of negotiations, an expert employed by the Union stated his opinion that there was no coverage and that opinion was shared by defendant's lawyer and by a lawyer representing another dairy company which conducted joint negotiations with the Union. Clearly, the district court did not abuse its discretion in denying the claim for liquidated damages.

Liquidated damages, if allowed, would act as compensation for delay in the payment of sums due under the Act. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 715, 65 S.Ct. 895, 89 L.Ed. 1296. We agree with the Third and Sixth Circuits that interest as such is not recoverable under this statute. Landaas v. Canister Co., 188 F.2d 768, 772; Clougherty v. James Vernor Co., 187 F.2d 288, 293; see also Wyatt v. Holtville Alfalfa Mills, D.C., 106 F.Supp. 624, 633; contra, Asselta v. 149 Madison Avenue Corp., D.C., 95 F.Supp. 856, 858.

That part of the judgment in favor of Paul Ivey is reversed and in all other respects the judgment is affirmed, with costs taxed against the appellant.

Reversed in part and affirmed in part.