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MCCOMB v. DOBSON

April 28, 1948

McCOMB
v.
DOBSON



The opinion of the court was delivered by: GIBSON

The court, after hearing and consideration, makes the following Findings of Fact and Conclusions of Law:

Findings of Fact.

 1. That this action is brought to enforce the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., and that jurisdiction of this Court is founded on said Act.

 2. That the defendant is the sole owner and operator of a place of business at Pittsburgh, Pennsylvania, where he conducts a contract construction, repair and engineering business. That in April 1945 he entered into a contract with the Baltimore & Ohio Railroad Company for the repair and reconstruction of passenger and freight stations at Connellsville, Pennsylvania. That the contract for the passenger station was a 'force action contract' for the cost of labor, insurance and materials plus ten percent to cover overhead and profit. That the freight station contract was a straight contract stipulating the amount of the contract. That between 1943 and 1946 defendant entered into contracts with the Baltimore & Ohio Railroad Company for the repair and reconstruction of engine pits and other facilities at the Railroad's station located at Glenwood, Pennsylvania. That these contracts were also straight contracts stupulating the amount of the contracts. That the Baltimore & Ohio Railroad Company is an essential instrumentality of interstate commerce and that the Glenwood, Pennsylvania station and the passenger and freight stations at Connellsville, Pennsylvania, are facilities of the Railroad that are used in interstate commerce.

 3. That in the performance of the work at the Connellsville and Glenwood stations defendant's employees were employed in the repair and maintenance of essential instrumentalities of commerce and that all the duties performed by said employees were necessary and essential to the maintenance and repair of essential instrumentalities of commerce and were an essential and integral part of interstate commerce. That such employees of the defendant are engaged in interstate commerce within the meaning of the Fair Labor Standards Act of 1938 and that the defendant is subject to the provisions of said Act with respect to said employees.

 4. That James Franklin Thomas was employed by the defendant as a bricklayer at the Connellsville job from May to November 1945 at a regular hourly rate of $ 1.70; that said Thomas generally worked four 10-hour days and one 9-hour day each week for a total of 49 hours; that although he worked in excess of the statutory maximum of 40 hours per workweek, he was not compensated for such overtime hours at time and one-half his regular hourly rate of pay.

 5. That Reed Miller, Frank Weiss, Ray Burow, John W. Omlor, Harry H. Brown and Byron H. Brooks were employed by defendant as carpenters on the Connellsville job for varying periods from May, 1945, to February, 1946. The regular union rate of pay for carpenters in that locality was $ 1.25 per hour. However, by their agreement with defendant they were paid a straight $ 1.50 per hour. The $ 1.50 per hour, greater than the union rate, was in lieu of and greater than their overtime under the union rate and was satisfactory to them, but was not in accord with the method of determining overtime as prescribed by the Regulations as promulgated by the Administrator.

 6. That Edward J. Mulvihill and James Woods were employed by the defendant as laborers and carpenter's helpers at the Connellsville job for a period of approximately 8 months during 1945 at a regular hourly rate of $ 1; that said Mulvihill and Woods generally worked a total of 49 hours per week; that although they worked in excess of the statutory maximum of 40 hours per workweek, they were not compensated for such overtime hours at time and one-half their regular hourly rate of pay.

 7. That Roy Kreger was employed by the defendant as a foreman on the Connellsville job from May, 1945 to February 1946; that he was not paid on a guaranteed salary basis but was paid solely on an hourly basis at the regular rate of $ 1.75 per hour for all hours worked including hours in excess of the statutory maximum of 40 hours per workweek; that he was not qualified for an exemption as an executive employe under Regulations Part 541.1 issued pursuant to Section 13(a)(1) of the Fair Labor Standards Act of 1938.

 8. See Paragraph No. 5, Findings of Fact.

 10. That S. Beckman was employed by the defendant as a foreman on the Glenwood job from May 1945 to February 1946; that he was not paid on a guaranteed salary basis but was paid solely on an hourly basis at the regular rate of $ 1.75 per hour for all hours worked including hours in excess of the statutory maximum of 40 hours per workweek; that he was not qualified for an exemption as an executive employee under Regulations Part 541.1 issued pursuant to Section 13(a)(1) of the Fair Labor Standards Act of 1938.

 11. All employees of defendant on the Glenwood job were paid legal overtime, except as set ...


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