Citations
- 50 F. Supp. 142
Full opinion text
HULBERT, District Judge.
Plaintiff moves, under Rule 12(b) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to strike out the several affirmative defenses and counterclaim pleaded in defendants’ answer.
This is, in reality, a motion to dismiss, and will be so considered.
The action was brought under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, on the plaintiff’s own behalf and on behalf of all other similarly situated, to recover unpaid overtime wages, liquidated damages and reasonable counsel fees.
Defendants deny that any sum is due to plaintiff, and in addition plead the affirmative defenses and counterclaim challenged by this motion.
Reserving the third defense, which contains the counterclaim, for final disposition, the other defenses will be considered in the order in which they are pleaded.
The first defense alleges that at all times mentioned in the complaint, the plaintiff and the defendants were mutually bound by certain collective bargaining agreements with a Labor Union, of which plaintiff was a member, and that plaintiff was paid in full for his services in strict compliance with the terms of such agreements.
The issues to be decided in this connection are twofold:
(1) Does the Fair Labor Standards Act apply to the plaintiff? And, in this respect, the Court must determine whether the plaintiff’s employment was such that he was “engaged in commerce, or in the production of goods for commerce” as defined in Title 29 U.S.C.A. § 203.
(2) If the Act applies, has the plaintiff been paid the minimum wages therein prescribed ?
If the first question is answered in the negative, or if both questions are answered in the affirmative, the plaintiff cannot recover. On the other hand, if the first question is answered in the affirmative and the second, in the negative, plaintiff is entitled to prevail and it is immaterial whether the wages actually paid to the plaintiff were fixed in collective bargaining agreements executed either before or after the date of the Act. See: Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Walling v. Belo Corporation, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 655; Walling v. Stone, 7 Cir., 131 F.2d 461; Emerson v. Lincoln Candies, Inc., 173 Misc. 531, 17 N.Y.S.2d 851, affirmed 261 App.Div. 879, 26 N.Y.S.2d 489, affirmed 287 N.Y. 577, 38 N.E.2d 234. It follows, therefore, that the first defense is insufficient and must be dismissed.
The second defense alleges that in full reliance upon plaintiff’s acceptance of the aforementioned agreements, and the wages paid to him as therein provided for, and his failure to claim any additional wages, the defendants calculated their operation and maintenance costs and determined upon the rentals to be charged their tenants; that these rentals cannot now be changed during the period of existing tenancy and, therefore, plaintiff is estopped from maintaining this action.
It has been held that employees cannot bargain away their rights under the Act or release their employers from paying the full amounts due thereunder. Rigopoulos v. Kervan, D.C., 47 F.Supp. 576; Schneider v. Sports Vogue, Inc., 35 N.Y.S.2d 341. See, also, Mid-Continent Pipe Line Co. v. Hargrave, supra; Colan v. Wecksler, D.C., 45 F.Supp. 508. And if the employers cannot be relieved of their obligations or duties under the Act by any affirmative action of their employees, they cannot be relieved by any failure on the part of any such employees to insist upon a full compliance with the Act. Accordingly, this defense must also be dis