Opinion
Nos. 116, 117, Dockets 20829, 20830.
January 13, 1948.
Appeal from the District Court of the United States for the Southern District of New York.
Consolidated actions by J. Louis Levesque and by Paul Tetrault against F.H. McGraw Company and another to recover overtime compensation. From judgments for plaintiffs, the defendants appeal.
Reversed and remanded.
Defendants were contractors hired by the Navy Department under Contract NOy 4630, dated February 15, 1941, and subsequently under Contract NOy 5971, dated March 3, 1943, to do work in connection with construction of defense bases in Bermuda. On November 28, 1941, defendants chartered Dredge D.M. No. 16 and Hopper Barge No. 3, the charter being tied in with the Navy contract and being for a term not to exceed 18 months plus six months if an option was exercised. The two vessels were taken to Bermuda, where Dredge No. 16 actually stayed at work until September, 1944.
Plaintiffs, whose two cases were consolidated for the purpose of trial, are both Canadian nationals, holding Canadian Master's licenses. They proceeded to Bermuda on board the above vessels, where they entered the contracts of employment out of which these cases arise.
On January 8, 1942, Levesque was hired under an oral contract to serve as second mate on Hopper Barge No. 5, at a rate of $1.42 per hour. On February 19, 1942, he was re-rated to first mate, at $70.38 per week. On April 5, 1942, he was discharged. On April 16, 1942, he was rehired. At various times thereafter he was re-rated, and served in the capacity of mate, second captain, and quartermaster on Hopper Barge No. 5 and the Tug Jucaro. His final date of payment was March 1, 1944.
Tetrault was hired on January 1, 1942, under a written contract of standard form, expressly made pursuant to Navy Contract NOy 4630, "for a period of lease of D.M. Dredge #16 months and not more than * * * months," as Master at a salary of $420 per month for 208 hours per month. At various times he served as captain of the Tug Jucaro and of Hopper Barge No. 3. He was discharged on March 1, 1944, and came to the United States, where he secured gainful employment on April 1, 1944.
Both Levesque and Tetrault worked hours substantially in excess of eight hours per day or of 48 hours per week. From the time of the original hiring until May 6, 1942, both parties were paid at a straight-time rate for each hour of duty over eight hours per day or 48 hours per week. On May 6, 1942, the defendants notified plaintiffs that they would no longer be paid overtime as such, but only a stipulated salary plus one day's pay for Sunday duty. Tetrault protested for all the men who were so affected, and there is evidence that he was told that, if he did not accept the new basis of payment, he would be discharged. Thereafter, Tetrault and Levesque continued to work for defendants, until their return to the United States. They continued to receive their pay, minus overtime payments, and signed receipts therefor, but they signed all receipts under protest.
The District Court awarded both plaintiffs judgments for overtime pay for the entire period from January 1, 1942 to March 1, 1944, at a rate of time and one-half for each hour duty in excess of eight hours per day on weekdays and time and one-half for each hour worked on Sunday, crediting defendants, however, for the straight time they had already paid for Sunday work. The Court also found that Tetrault had been wrongfully discharged prior to the expiration of his contract, and awarded him one month's pay as damages. On reargument, defendant raised the question of minor errors of calculations with respect to the awards, which changes were consented to by plaintiffs in the reargument but which were not made by the Court. Defendants brought this appeal.
John F.X. McGohey, of New York City (William T. Ard, of Jersey City, N.J., of counsel), for appellants.
Forrest E. Single, of New York City (Enrico S. Sanfilippo, of New York City, of counsel), for appellees.
Before CHASE, CLARK, and FRANK, Circuit Judges.
1. All other questions aside, we see no justification for allowing overtime at 1½ times the regular rate. The Fair Labor Standards Act, 29 U.S.C.A. Chapter 8, does not apply to seamen who serve as navigators of self-propelled barges. Plaintiffs cannot in any way be aided by the so-called Eight-Hour Law, 40 U.S.C.A. Chapter 5, since they were not "laborers" or "mechanics"; nor by the 1913 amendment of § 321 of that Act, since they were not performing services similar to those of "laborers and mechanics" in connection with dredging or rock excavation. 50 U.S.C.A. War Appendix, § 1155(a) relates to employees of the Navy, not to employees of an independent contractor who is doing work for the Navy. Executive Order No. 9240, as amended by Executive Order No. 9248, dated September 17, 1942, 7 F.R. 7419, 40 U.S.C.A. § 326 note, places a restriction upon overtime payments. There was no evidence of any custom to pay 1½ times for overtime, and nothing in the contracts nor in the conduct of the parties warrants such payments.
Walling v. Bay State Dredging Contracting Co., 1 Cir., 149 F.2d 346, 161 A.L.R. 825; Anderson v. Manhattan Lighterage Corp., 2 Cir., 148 F.2d 971, 973.
Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600, 51 L.Ed. 1047, 11 Ann.Cas. 589.
Accordingly, the following, as supplemental to that section, are immaterial: Section 303 of the Second Supplemental National Appropriations Act, 1941, Pub. No. 781, 76th Cong., 40 U.S.C.A. § 325a; Executive Order No. 8263, 6 F.R. 13, 40 U.S.C.A. § 321 note.
2. There remains the question whether either of plaintiffs was entitled to overtime payments after May 1942 at the rate at which he had theretofore been paid by defendants for overtime. The judge found, in effect, that Tetrault's contract made in January 1942 had not expired when he was discharged on March 1, 1944. The evidence supports this finding, and the finding that that discharge was wrongful. The contract was "for period of lease D.M. Dredge # 16 months, and no more than * * * months." Although the lease of this dredge was originally for 18 months from November 28, 1941, with an option for 6 months more, the evidence shows that the defendants used the dredge for several months after March 1, 1944. If it was an implied term of Tetrault's contract that he should receive pay for overtime, this provision bound defendants for the full period of the contract; in that event, defendants could not relieve themselves of that obligation by merely notifying him, in May 1942, that thereafter they would not pay overtime; nor, if, as the judge found, duress was involved, would this obligation be discharged by the weekly pay receipts signed by him under protest. But the judge did not find that the contract contract contained a provision, implied in fact, to pay overtime. Conceivably such a finding might be grounded on the conduct of the defendants, in paying overtime up to March, 1942, as an interpretation of the contract. However, as we must remand for a finding on this subject, and as the case was tried on a different theory, "in order that injustice may not be done" we remand with permission to either party to introduce further competent and relevant evidence on that issue.
Restatement of Contracts, § 493. Cf. Hume v. Moore-McCormack Lines, 2 Cir., 121 F.2d 336.
Porter v. Leventhal, 2 Cir., 160 F.2d 52, 59; Phelan v. Middle States Oil Corp., 2 Cir., 154 F.2d 978, 1000; Benz v. Celeste Fur Dyeing Dressing Corp., 2 Cir., 136 F.2d 845, 848; Ford Motor Co. v. N.L.R.B., 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221; United States v. Rio Grande Dam Irrigation Co., 184 U.S. 416, 423, 22 S.Ct. 428, 46 L.Ed. 619; Estho v. Lear, 7 Pet. 130, 8 L.Ed. 632; Security Mortgage Co. v. Powers, 278 U.S. 149, 159, 160, 49 S.Ct. 84, 73 L.Ed. 236; Pfeil v. Jamison, 3 Cir., 245 F. 119; Wyant v. Caldwell, 4 Cir., 67 F.2d 374.
The judge found, in effect, that Levesque's contract, made in January 1942, was the same as Tetrault's except as to rate of pay. We think the evidence sufficient to support that finding. However, he also found that Levesque was discharged on April 5, 1942, and rehired on April 16, 1942; that finding is also supported by the evidence. There is no evidence to show that that discharge was wrongful. Nor is there evidence to show that the new contract of rehiring on April 16, 1942 was for the same period as the previous contract. On the evidence, we incline to think that it was from month-to-month. If so, then when defendants refused to pay overtime after May 1942, there was no breach except for a short period, after which his recurrent month-to-month contract called for no overtime payments. But, again because of the way the case was tried, we remand with permission to either side to offer competent and relevant evidence bearing on the issues of (a) whether in his original contract there was a provision implied in fact for overtime payments, and (b) for what length of time he was rehired.
If, for instance, it is found that he was rehired for a considerable period beyond May 1942, then the ruling, made above as to Tetrault's receipts, will also apply to Levesque.
Reversed and remanded.