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Gilbert v. Old Ben Coal Corp.

OPINION FILED JUNE 30, 1980.

JACK GILBERT ET AL., PLAINTIFFS-APPELLANTS,

v.

OLD BEN COAL CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Franklin County; the Hon. ROBERT S. HILL, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Jack Gilbert and Bill Wade, appeal from a judgment of the trial court for defendant, Old Ben Coal Corp., following a bench trial of their complaint in which they alleged violations of the maximum hour and overtime pay provisions of the Fair Labor Standards Act of 1938 as amended (hereinafter referred to as the Act) (29 U.S.C. § 201 et seq. (1976)). Pursuant to section 207 *fn1 of the Act, they each sought unpaid overtime compensation, earned in the capacity of "resident mining engineer," as well as liquidated damages in an amount equal to the alleged unpaid overtime compensation and attorney's fees.

Each plaintiff alleged in his complaint that he had worked "a 50 hour work week" during the pertinent period of time, which was for plaintiff Gilbert the two years immediately prior to the filing of the complaint on February 20, 1976, and for plaintiff Wade the period between February 20, 1974, and September 11, 1975, when defendant terminated his employment. Defendant claimed in defense that by virtue of plaintiffs' "executive, administrative or professional capacity" plaintiffs were, under the provisions of section 213 *fn2 of the Act, exempt from the operation of the overtime provisions of section 207.

The trial court found that defendant had sufficiently proved that during the period of time involved plaintiffs were "exempt employees employed in a bona fide administrative capacity." The court found further that plaintiffs "failed to prove that the employees of the business in question were engaged in interstate commerce and the amount of overtime involved." The court observed that "[t]he plaintiffs were impeached in relevant particulars. We have only their statements, without more, that they worked an average of 50 hours per week." Defendant had kept no records pertaining to the hours plaintiffs worked. With regard to that omission of defendant, the trial court cited the case of Brennan v. Parnham (W.D. Pa. 1973), 366 F. Supp. 1014, where in the absence of any records of the employer pertaining to the amount of time the employees had worked, the court determined the number of overtime hours worked by the employees, in part, at least, from the "reasonable and creditable estimates of the employees themselves." The instant court found, by comparison, that "the record is so devoid of factual evidence that the court has no basis for deciding that the employees' estimates were `reasonable and creditable.' A lay witness who gives an opinion, if we may so characterize these conclusions as such, must give the basis of his observations as a foundation for such opinion. If evidence is admitted without objection which is basically without sufficient foundation the court may not assume that the opinion is reasonable if that is a necessary part of the required proof." The trial court ordered that plaintiffs recover nothing and that defendant recover costs of suit from plaintiffs.

From a denial of both plaintiffs' post-trial motions to vacate the judgment for defendant and to enter judgment for plaintiffs or, in the alternative, for a new trial, plaintiffs appeal, presenting a number of issues for review. Essentially plaintiffs contend on appeal that the trial court should have granted their motions because of the sufficiency of plaintiffs' evidence and that in view of plaintiffs' evidence the court erred in its findings that (1) defendant proved plaintiffs were exempt employees in a bona fide administrative capacity, (2) plaintiffs failed to prove defendant's employees were engaged in interstate commerce, and (3) plaintiffs failed to prove the amount of overtime involved.

The law is well settled that the trial court, having had the opportunity to see and hear the witnesses, is entitled to consider the evidence and that the reviewing court is under a duty to reverse any judgment "wherein the findings are clearly and palpably against the manifest weight of the evidence [citations], or wherein there is a clear and palpable error in some other respect." (Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App.3d 953, 956, 371 N.E.2d 855, 857.) We have examined the record on appeal and have determined that the trial court's finding with regard to plaintiffs' failure to prove the amount of overtime involved is not contrary to the manifest weight of the evidence. Therefore the trial court did not err in denying plaintiffs' motions for a new trial.

Since the basis of plaintiffs' claim is that defendant owes them compensation yet unpaid for their labor in excess of 40 hours per week over the course of many weeks, our affirmance of the trial court's finding with respect to the amount of overtime renders unnecessary any consideration by us of the other issues plaintiffs raise. Consequently, we cite only those facts which bear on the issue of the amount of overtime plaintiffs worked.

Though plaintiffs did not work in the same mine, the testimony of one mirrored that of the other in the description each gave of his work as a "resident mining engineer," or, as the position is also called, "mine surveyor." According to their testimony, plaintiffs were responsible for setting, by the use of surveying tools and principles, numerous underground "sites," which the miners use as a point of reference primarily in the operation of the continuous mining machines. These "sites," which indicate the center of the path a mining machine should follow, are the means by which the operators of the machines keep them on a straight, safe course. Working from a federally approved mining plan, plaintiffs, each with the aid of a person known as a "helper," were responsible for placing the "sites" so that the actual mining conformed to the mining plan, to the extent that it was possible for it to do so, given inevitable obstructions to the mining such as the discovery of water in the mine. The "sites" each consist of a pair of wooden plugs, which the helper drives into the roof of a room of the mine at a location behind the mining machine. From the plugs, which are set, if possible, three to four feet apart, the miners hang plumb bobs, which they observe as they operate the mining machines. Under good mining conditions a single pair of "site" plugs might serve as a guide for the mining of 200 feet of coal. The progress of the mining machines varies as a result of more or less difficult mining conditions. As the mining progressed, plaintiffs were required to set new "sites." In the mines in which plaintiffs worked, a single resident mining engineer advanced the "sites" for all three shifts of approximately 100 miners per shift. Miners who worked the night shift, for example, might well have used "sites" plaintiffs had set during the day shift. Plaintiffs were permitted to choose the time of day when they would work and were free to leave the mines when they had completed their work, that is, whenever they had provided sufficient "sites" so that the absence of plaintiffs would not impede the safe progress of the mining.

If plaintiffs noticed that a mining machine was "off track," that is, out of alignment with the "sites," they would — and here the testimony of plaintiffs conflicted with that of witnesses for defendant — either report the need for correction to the mine superintendent or his representative or make the necessary correction themselves and later report the error and their correction of it. In order to insure greater accuracy, plaintiffs were required, with the aid of a second assistant, to take certain measurements every six months using a larger and, therefore, more accurate instrument than that which they used in setting the "sites." In addition to these duties, plaintiffs were responsible for completing periodically certain maps and reports. Approximately daily they entered notations in a "field book." From these entries the maps were prepared. While the testimony of witnesses for the defendant possibly conflicted with that of plaintiffs as to plaintiffs' precise contribution to the preparation of the maps, plaintiffs indicated that their helpers transferred the information from the "field books" to the maps and that they themselves merely checked the accuracy of the helpers' work. One of the maps was updated approximately weekly for purposes of safety; others, known as "progress maps," which reflected the actual mining — as opposed to that proposed in the mining plan — were updated monthly. From their notations plaintiffs also computed and reported monthly both the total coal production and the tonnage of royalty coal.

While plaintiffs' helpers were paid an hourly rate of compensation, plaintiffs received a straight monthly salary. Plaintiff Gilbert's salary during the period in question ranged from $1,130 to $1,500 per month; plaintiff Wade's salary was $15,800 for 1974 and amounted to $12,700 for that part of 1975 during which he was in defendant's employ. Neither plaintiff had a college degree or was a registered surveyor or licensed engineer. Defendant's manager of corporate engineering testified that at the time plaintiffs were hired as resident mining engineers, the "understanding" was that they would work whatever hours "it took to do the job. If they could do their job, if they could set the sites, do the work that was necessary to keep the mine in a safe position, in 30 hours, we had no objection to it, but if it took 48 hours they were also expected to do it. That was the understanding with the scale they were paid, or the salary they were paid."

Like defendant, neither plaintiff had kept any written record of the hours he actually worked. Gilbert estimated that he had worked a weekly average of 50 hours; Wade estimated that he had worked a weekly average of 48 to 50 hours. Wade stated that he generally came up "on top" about 2:45 p.m. Gilbert stated that he sometimes came up "from the underground" about 2:30 p.m. and that he sometimes came up "a little earlier than that." He indicated that he came up when all the underground work was done in order to work on "the books." He said that the "field books" are not filled in underground because "[t]hey get too dirty and nasty. You get cold [sic] dust on 'em and they could get lost or destroyed underground." Wade did not say where he was when he entered notations in the "field book." Defendant's manager of corporate engineering testified that, except for certain mapwork, "the actual bookwork was definitely to be done below. I heard testimony to other than that today." The witness explained that "the sites and so forth ought to be put in the books below because of a chance of error from transposing [sic] from one to the other." Both plaintiffs testified that 85 to 90 percent of all their work consisted of the surveying done underground.

Wade testified that during the period in question he had worked six days a week. In response to the inquiry of the trial court as to the hour at which his day at the mine began, the following colloquy took place:

"A. Well, my regular startin' time, with different buddies, the majority of the time we'd start about, I'd say got at the mines around 6:30 to 7:00 o'clock and generally went below with the bosses at 7:15, but I have started at 4:00 and 5:00 in the ...


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