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April 21, 1943


The opinion of the court was delivered by: KLOEB

The plaintiff, Henry Philpott, filed his petition under the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. In it he seeks a recovery of overtime pay on behalf of himself and others similarly situated, as is permitted under the provisions of Section 16(b), 29 U.S.C.A. § 216(b); and he asks, in addition, for liquidated damages, attorney fees and costs.

First the defendant filed a motion seeking, among other things, to strike that clause from the plaintiff's complaint in which he states that he sues "in behalf of himself and other employees similarly situated".

 The court overruled that motion; but did express himself in accord with an opinion heretofore rendered by Judge Freed, Smith v. Stark Trucking Inc., 53 F.Supp. 826, in the Eastern Division of the Northern District of Ohio, in which Judge Freed, with the consent of Judge Jones, overruled an opinion theretofore rendered by Judge Jones, Card v. Elmer C. Breuer, Inc., D.C., 42 F.Supp. 701, and the court here desired to place himself in accord with the Eastern Division of the Northern District of Ohio, and also what he believes to be the weight of authority in so far as that particular point has been decided by the courts. The court decided that the plaintiff might retain that phrase in his complaint; and that the intervening complainants might in due time file their intervening complaint, or fie such other authority as might place themselves within the jurisdiction of the court, so that the court might render a judgment and the judgment be binding upon the intervenors.

 In accordance therewith, subsequent to the pre-trial conference held on March 29th, the twenty-two intervening complainants filed their complaint and made themselves a party to the suit. Their intervening complaint is on all fours with the complaint theretofore filed by Henry Philpott.

 Immediately thereafter the defendant filed its answer to the complaint of the intervening plaintiffs, which answer I think is substantially in accord with the answer theretofore filed to the complaint of Henry Philpott.

 It appears from the record made in the trial of this case that the plaintiffs are still cleaners in the employ of the defendant, The Standard Oil Company of Ohio, at its plant here in Toledo, Ohio. The subject of their complaint was the claim that they were required to pass a waiting time, or rather a preparation time, before they were actually rung in by the paymaster and their time commenced on the actual cleaning of the still. These preliminaries required them to wet down the coke in the still, and to do such other matters preliminary to the actual cleaning as the claim would consume from one-half hour to possibly two hours of their time, for which they were not on the payroll and were receiving no pay. They claim this caused overtime work on their behalf for which they were not paid. In addition to the overtime, they claim, of course, liquidated damages.

 The answer to the intervening complaint sets out in Paragraph IX, the following:

 "For its answer to the allegations of Paragraph IX of said intervening complaint, defendant denies that there is any overtime due from it to said intervening plaintiffs; defendant admits that on or about September 2, 1941, it paid said intervening plaintiffs certain sums of money for overtime compensation, but denies that said sums were not the amount of unpaid overtime compensation owing to said intervening plaintiffs, and further denies that it is indebted to said intervening plaintiffs or any of its employees in a sum in excess of $5,000 or any other amount for overtime due under the provisions of the Fair Labor Standards Act or for any other reason.

 "Defendant further specifically states and alleges that said sums of money paid by it to said intervening plaintiffs on or about September 2, 1941, were in full payment and settlement of any amounts then alleged to be due to said intervening plaintiffs for overtime compensation pursuant to the Fair Labor Standards Act."

 In addition thereto, defendant denies generally that it owes the plaintiffs anything whatsoever.

 I emphasize Paragraph IX of the answer because, while no motion was made by the plaintiffs to strike any portion of that answer from the pleading, yet upon the trial of the case plaintiffs' counsel was of the opinion that it was not sought therein to plead an accord and satisfaction; and that, therefore, no evidence ought to be admitted by the court that had any bearing whatsoever upon the claim of an accord and satisfaction.

 The court when that question was raised had in mind the trial brief that had been filed by the defendant, and had in mind as well the precise language of Paragraph IX, which the court has just quoted. In the trial brief filed by the defendant, it states on page 5 thereof: "It will be noted that the defendant has not pleaded accord and satisfaction in its Answer for the reason that the Petition is indefinite with respect to the facts on which the general claims made in the Petition are based."

 Strangely enough, following that statement, on page 9 of the trial brief, the defendant says the following: "* * * in the case now before the Court the defendant denies that it was ever liable for unpaid overtime by reason of a violation of the Fair Labor Standards Act, and, further it is clear that if any such liability ever existed the amount thereof was the matter of honest dispute and payments were made in full satisfaction of such obligation."

 Then, under the heading, "Conclusion":

 "Upon an examination of all the authorities, it can hardly be disputed that the courts have recognized that such suit for liquidated damages will not lie where the parties have settled the primary obligation in disposition of an honest dispute as to the defendant's obligation.

 "The parties hereto had, prior to the bringing of this action freely negotiated a settlement of an honest dispute, and it is clear from an examination of the pertinent decisions that such settlement has terminated any obligation to the plaintiff herein and all others allegedly similarly situated."

 Following up that theory, in a letter sent to the court, a copy of which was sent to counsel for the plaintiffs, dated April 8 -- that is yesterday -- and received by the court this morning, on page 2 the defendant states: "Defendant has not, of course, abandoned its position that in any event an accord and satisfaction was arrived at. I do not believe that the Fair Labor Standards Act anywhere discloses a Congressional intent to discard the long line of judicial decisions establishing the principle that the law favors the settlement of disputes."

 So the defendant at one point takes the position that it is not pleading accord and satisfaction; and again at two points it takes the position that accord and satisfaction was reached, in effect that it does plead an accord and satisfaction. But taking the language as is contained in the answer, the court is of the opinion that it alleges that it paid the overtime due the complainants; but it nowhere alleges that any accord and satisfaction was arrived at on the question of liquidated damages. So the court has permitted the pleading to stand as it is; has permitted certain evidence to be introduced in connection with the checks that were paid to the complainants allegedly in satisfaction of their claim for overtime compensation; but has taken the view throughout that there is no attempt to plead accord and satisfaction on the question of liquidated damages.

 The record discloses that these complainants, acting through a committee headed by a spokesman, met with the plant superintendent of the defendant company, I think about the 27th day of June, 1941; and, among other complaints, complained to the superintendent that these still cleaners were not being paid for overtime work that they encountered in connection with the cleaning of the stills.

 Thereafter, and without further colloquy between the superintendent and the representatives of the still cleaners, the still cleaners individually were called either to the office of the paymaster, Mr. Ladd, or the chief clerk; and they were given a check on the 8th day of August, 1941, with the statement that there may be some further pay coming. And then on September 2nd, they were each given another check, which apparently, in so far as the company was concerned, was in final settlement of any claimed overtime due them.

 On the backs of these checks, there was endorsed: "This is in full payment of overtime due from" -- thereafter followed the respective dates on the two checks. Under that the payee of the check was required to make his endorsement in order to cash the check. It will be noted that it says, "This is in full payment of overtime".

 Thereafter the complainants filed their petitions herein.

 The record does not disclose with any sufficient definiteness any additional overtime that these complainants might be entitled to. The court cannot speculate or guess as to what additional might be due them. Hence we conclude -- and I think counsel for the plaintiffs agreed at the conclusion of the case -- that there is not now any claim for any additional overtime compensation in this suit.

 That leaves the case in the situation where the complaint asks for liquidated damages, for attorney fees and for costs. There being no claim for anything additional in the way of overtime compensation, and the pleading of an accord and satisfaction, if any at all, going only to the question of overtime compensation, it appears to the court that that whole question is moot; that it ...

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