•This аppeal involves the application and construction of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Specifically it is an action brought by two of defendant’s employees to recover overtime compensation and liquidated damages. The terms of thеir employment were unusual and out of the ordinary in that, as auxiliary firemen, they were employed during one period on a 48-hour work shift with thе ensuing 48 hours off and during another period there were alternating stretches of 24 hours on and 24 hours off.
During the work periods, appellees performed active, specific services from 8 A. M. until S P. M., with a half hour for lunch. At 5 P. M., their active labor ceased, and appellees were free to do as they pleased until 8 o’clock the next morning, subject, however, to the restriction that they had to rеmain in the firehouse so as to be subject to call in case of fire. They devoted this time from 5 P. M. to 8 A. M. to such recreations or sleeping оr eating as their natures and desires dictated. They responded to fire calls if any were made, which was seldom.
Plaintiff Smith, on an average, responded to a call about once every four weeks, while Wantock was called once every three and оne-half weeks. Smith’s longest call took seven and a half hours, while Wantock’s longest was three hours. The average call for Smith was fifty-еight minutes and for Wantock, forty-seven minutes.
Speculation suggests that the employees divided their time between reading, listening to the radiо, solitaire, gin rummy, and sleeping. The District Court found, on the basis of scant testimony, that the employees devoted one and one-half hоurs to eating and seven hours to sleeping each twenty-four hours. It made deductions accordingly-
The judgment for Wantock was for ovеrtime compensation of $505.67 and liquidated damages of $505.67 and $600 for attorneys’ fees. The judgment for Smith was similar, excepting as to amounts. Overtime was $943.07, liquidated damages, $943.07, and attorneys’ fees of $650.
Two questions are raised:
(a) Were plaintiffs engaged in the production of goods for commerce within the
(b) Did plaintiffs work in excess of the maximum hours permitted by Title 29, Sec. 207, U.S.C.A., without payment of overtime wages?
(a) We are bound by the decisiоn of the Court in Walton v. Southern Package Corporation,
(b) On the second question, аppellant cites, and relies heavily on, Skidmore v. Swift & Co., 5 Cir.,
We think the appellant has not overcome the fact distinction of the Skidmore case, although we are not certain that such distinction would or should materially affect the conclusion.
It seеms to us that the question is one which only the court of last resort can answer finally, and our conclusion affords but a resting place, as it were, for the passage of this question on its flight from the court of original jurisdiction to the Supreme Court.
Our conclusion is that the decision must turn on the language of the Act. Congress, not the court, was legislating. Responsibility for this legislation in general and the exceptions and limitations of the Act rests with the Congress. The courts only apply the Act and, in case of doubt, perhaps, give it a construction which the language of the Act and the purpose of the legislation, demand. In this last function— if the language of any section necessitates it — we may not overlook the purposes or object of the legislation and the intent of Congress in choosing its language,
Section 207 is definite and specific and provides that:
“No emplоyer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce оr in the production of goods for commerce—
“(1) for a workweek longer than forty-four hours during the first year from the effective datе of this section,
“(2) * *
“(3) * * *,
unless such employee receives compensation for his employment in excess of the hours above sрecified at a rate not less than one and one-half times the regular rate at which he is employed.”
Then follow exceptions wherein definitions are given of the instances where the employer would not be deemed to have violated this section. None of the еxceptions includes a situation such as is here disclosed.
If there is to be an exception, in addition to those specifically made, added to Section 207, it is for Congress rather than the courts to make it.
The only legal question, as we see it, is, therefore, directed to the ascertainment of the legal status of the plaintiffs to the defendant during those periods when they were subject to call as auxiliary firemen. Notwithstanding the latitude they had in their activities, we are convinced that their legal status was that of employeе during that time.
Inconsistency is at once suggested when a distinction is made between an employee living in the packing house, who is subjeсt to call, but who- is sleeping, and one who is subject to call and is listening to the radio or playing solitaire. The correctness of thе District Court’s holding that time devoted to sleeping and eating should not be counted as part of overtime, is not before us. The emplоyees have not appealed from that part of the judgment, which is adverse to them. Therefore no question of difference between sleeping and eating on the one side and playing -solitaire, listening to the radio or reading on the other hand, is beforе us.
It is perhaps true that Congress did not visualize a case of this kind when the Act was passed. If this be a sound premise, we
The judgment is affirmed.