Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
The United States District Court for the Northern District of Illinois, Eastern Division, after hearing without a jury, dismissed plaintiffs' action against the Pressed Steel Car Company. The case was originally filed in the Superior Court of Cook County, but was removed to the District Court of the United States on January 29th, 1946.
About thirty days after the removal of the cause an amended complaint was filed in the Federal Court. The plaintiffs, more than one hundred in number, sought to recover overtime pay for duties performed by them as guards in the war plant of the defendant company, together with liquidated damages and attorneys' fees. The cause of action was based upon alleged violations by the defendant of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Federal jurisdiction was based on section 16(b) of said Act. The amended complaint contained two counts. Apparently the guard forces of the defendant company were organized in a semimilitary manner, and the first count in the complaint was filed on behalf of the guard members who were classed as privates; the second count, on behalf of members of the organization who had attained the rank of sergeants.
We are concerned here only with the cause of the privates, or, in other words with only the first count of the amended complaint.
In that count it was charged that the defendant Pressed Steel Car Company was engaged as an independent contractor, and not as an agency of the United States Government, in processing war materials, and operated a plant near Hegewisch, Illinois. It was further charged that during the periods "alleged in the complaint' defendant was engaged in interstate commerce; that defendant employed plaintiffs as guards for the portection of its plant and products, as a part of interstate commerce. The complaint alleges that during the time they were so employed they were required by defendant to work one-half hour per day, over and above the regular forty (40) hour week, for the purpose of changing uniforms and performing miscellaneous duties and tasks before and after they were required to punch clocks upon starting and leaving; that time cards in the possession of defendant will show the time worked by plaintiffs. They claim overtime compensation under section 7(a) of the Fair Labor Standards Act. 29 U.S.C.A. § 207(a). It is alleged that they do not have complete and accurate knowledge of the time they were so forced to work but that defendant has records which will show the exact number of hours of such overtime. They claim that large sums of money are due and owing each plaintiff under the Fair Labor Standards Act for overtime compensation, together with liquidated damages and attorneys' fees.
In their answer defendants stated five defenses. The first was that since April 8, 1942, the defendant was engaged solely in the production of material for the government of the United States for use in the prosecution of the war then being waged, that such engagement continued until hostilities ceased, and that plaintiffs were not engaged in interstate commerce as defined by the Fair Labor Standards Act.As a second defense the statute of limitations was invoked against certain plaintiffs. The third and fourth defenses were interposed only against the claims made in count two of the complaint, and are irrelevant in this appeal.
The fifth defense answered specifically the allegations made in count one of the complaint, and prays that it be dismissed at plaintiffs' costs.
The cause remained pending in the District Court until August 19, 1947, after the passage of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq.
On that day defendant filed an amendment to its answer, adding defenses six, seven, eight and nine to their answer.
The sixth defense asserted that all acts or omissions of which plaintiffs complained were done or suffered in good faith on the part of defendant and in reliance on administrative regulations, orders, rulings and approvals and interpretations of the Administrator of the Wage and Hour Division of the Department of Labor and the Secretary of Labor and Federal officers utilized by the Secretary of Labor in the administration of the Walsh-Healey Act, 41 U.S.C.A. § 35 et seq.
The seventh defense avers that all the acts and omissions charged to the defendant were in good faith, in conformity with and in reliance on the administrative practices and enforcement policies of the Administrator of the Wage and Hour Division of the Department of Labor and the Secretary of Labor and Federal Officers utilized by the Walsh-Healey Act with respect to classes of employers to which defendants belong.
In the eighth defense it is claimed that the District Court is without jurisdiction to hear and determine count one under the Portal-to-Portal Act.
As a final defense, it is alleged that under the provisions of the Portal-to-Portal Act no relief can be granted under count one.
To these additional defenses plaintiffs replied on September 9, 1947. The reply denies the allegations made by defendants in each of the additional defenses. In addition it is claimed that sections two and nine of the Portal-to-Portal Act are unconstitutional under the Fifth Amendment to the Constitution, and that said sections are an ...