'(2) a custom or practice in effect, at the time of such activities, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.' 29 U.S.C.A. § 252(a).
Likewise by its terms, the Congressional action in the Portal-to-Portal Pay Act of 1947, concerning the jurisdiction of the courts, said this:
Part II, Sec. 2(d) -- 'No court of the United States * * * shall have jurisdiction of any action or proceeding, * * * to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938 * * * to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section.'
The court has examined the allegations of the complaint to see if they come within the exception provisions of subsections (a) or (b) of the Act as quoted hereinbefore, and concludes that such allegations are not within the provisions of such excepted cases, and the suit is what is commonly referred to as a portal to portal pay suit.
Judge Meaney has filed a comprehensive opinion covering the question of the jurisdiction of this court (U.S. District Court of New Jersey) to entertain portal to portal pay suits in the matter of Stanley Grazeski, et al. v. Federal Shipbuilding & Dry Dock Co., D.C., 76 F.Supp. 845, 847, wherein he said:
'Thus by iteration and reiteration, the Supreme Court has made it abundantly evident that Congress may prescribe the exact limits of the authority of all inferior Courts of the United States as it sees fit, or it may prescribe all jurisdiction of such courts if it so wishes. In view of this sweeping and all comprehensive power, the pronouncement of the national legislature, in Part II, Section 2(d), is final and determinative of the motions made in the instant case.'
'Whatever may be the effect of this prohibition on State Courts, there can be no question as to its effect on this Court. No jurisdiction rests in any degree in this Court to enforce whatever liability might have existed previous to the approval of the Portal-to-Portal Act, Unless it comes within the comprehension of subsections (a) and (b) of section 2 of the Act.' of subsections (a) and (b) of section 2 of the Act.'
Therefore, the court concludes that it is without jurisdiction to entertain the subject matter of the present suit and it is, consequently, dismissed.
Prepare an order.
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