
    SLOAT et al. v. DAVIDSON ORE MINING CO. et al.
    Civ. A. No. 61.
    District Court, W. D. Michigan, N. D.
    Aug. 6, 1942.
    
      M. H. Greenberg, of Eveleth, Minn., Henry Pauli, of Duluth, Minn., and Maurice Sugar and Jack N. Tucker, both of Detroit, Mich., for plaintiffs.
    M. S. McDonough, of Iron River, Mich., and Earl F. Reed, Clyde A. Armstrong, Charles C. Hewitt, and Thorp, Bostwick, Reed & Armstrong, all of Pittsburgh, Pa., for defendants.
   RAYMOND, District Judge.

Findings of Fact.

1. For many years prior to October 24, 1938, the Davidson Ore Mining Company, one of the defendants, owned and operated in the village of Mineral Hills, Iron River Township, Michigan, three ore mines known as Davidson Mines No. 1, No. 2 and No. 3.

2. In 1937, the employees at the Davidson Mines were employed generally five days a week. In the latter part of 1937 and in the early part of 1938, business fell off to such an extent that in March, 1938, the executives of the Davidson Ore Mining Company were urging a reduction in the employment of its miners to two days a week.

3. Mr. Ericson, the superintendent of the Davidson Mines, being concerned with the wages of their employees, and being somewhat more optimistic than the company’s executives about the future, succeeded in securing the executives’ approval to reduce the underground employees to “three days a week” instead of to the proposed “two days a week”.

4. In accord with the authority granted him by his supervisors, the mine superintendent, in May 1938, divided the underground employees into two groups, one group working the first three regular working days (Monday, Tuesday, Wednesday) and the second group working the last three regular working days (Thursday, Friday, Saturday) of the work week. Only the Davidson No. 1 Mine was operated and it was operated the six straight regular working days of each week. Sunday was not and never had been a regular working day.

5. In the early fall of 1938, the underground men working the last three regular working days of the week (Thursday, Friday, Saturday) complained that they were working every Saturday and requested that the three-day work periods be alternated so that all underground men would have off every other week-end. The company conceded the merit in this complaint and the request was granted. Thereafter (beginning about October 1, 1938), the three-day periods were alternated so that the underground men worked the last three working days in one week and the first three working days of the succeeding week.

6. After the three-day periods were alternated, the three-day-a-week schedule for underground employees continued as theretofore and without change until about July 1, 1940, when business increased and the employment of the Davidson underground employees was increased from three to five and' even six days a week.

7. For many years including all of 1938, 1939 and 1940, there was only one work week at the Davidson Mines and that week commenced with Monday and ended with Sunday. Sunday, not being a regular workday, was marked off with red vertical lines in all the time, payroll and production records of the Davidson Company. These red lines always indicated the beginning and the ending of the one and only established work week. All time and overtime, as well as all production summaries, were calculated consistently on the basis of the one work week beginning with Monday of each week.

8. All employees were paid bimonthly. They received in advance a statement of the regular hours employed, together with any overtime hours employed during the pay period. Upon signing these statements they received their regular pay checks. Not one plaintiff claimed that there had been any mistake at any time (including the period involved) in the pay received or the overtime included. Not one plaintiff claimed that he was entitled to receive any more compensation than the amount calculated, paid to and received by him.

9. Even prior to the effective date of the Fair Labor Standards Act of 1938, 29 U.S. GA, § 201 et seq., the Davidson Company voluntarily paid its employees time and one-half their regular compensation for all time over eight hours in one working day, for all time over 40 hours in one work week, and usually for all Sunday employment.

10. Long prior to October 24, 1938, and thereafter and throughout 1938, 1-939 and 1940, there was only one work week at the Davidson Mines. That work week began with Monday and ended with Sunday each week.

Conclusions of Law.

1. The defendant employer, Davidson Ore Mining Company, had the right to determine and establish the work week for its employees.

2. Alternating the three-day-a-week work periods so that one period included the last three working days of one work week and the next period the first three working days of the succeeding work week did not change the regular work week beginning with Monday in each calendar week.

3. The granting by the employer of the employees’ request to alternate three-day work periods in succeeding weeks did not change the fixed and established work week of the employer, nor did it involve any evasion of the Fair Labor Standards Act of 1938.

4. The provisions of the Fair Labor Standards Act of 1938 do not require that employees be employed on the same days or during the same periods in each work week.

5. The plaintiffs failed to sustain their claim that the Davidson Ore Mining Company (the owner and operator of the Davidson Mines during the period involved) in September or October, 1938, had changed the beginning of its regular work week from Monday to Wednesday in each calendar week.

6. Plaintiffs’ suit against both defendants should be dismissed, and an order will be entered accordingly.  