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POLLOCK v. HELLER

September 21, 1954

Joseph POLLOCK, Plaintiff,
v.
Richard T. HELLER, trading as Heller's Pretzel Bakery, Defendant



The opinion of the court was delivered by: GRIM

Defendant, Richard T. Heller, operated a small pretzel bakery in Reading, Pennsylvania. Plaintiff, Joseph Pollock, was an employee in the bakery. Pollock came to work each Saturday evening at ten o'clock and worked until the middle of each Sunday morning to help to produce a special order of pretzels for a customer who took them into New Jersey to sell along public highways there.

When Pollock was employed by Heller it was agreed that Pollock would be paid at the rate of $ 1 an hour with time and a half for work on Sundays and holidays. Every week in which Pollock worked for Heller he worked more than forty hours. Under the Fair Labor Standards Act, 29 U.S.C.A. ยง 201, Pollock was entitled to pay at the rate of time and a half for every working hour over forty a week, provided he was 'in the production of goods for [interstate] commerce'.

 The customer who took the pretzels to New Jersey was not an agent of Heller in a legal sense. He was simply a customer who bought and paid for a certain number of pretzels from Heller each week. However, inasmuch as Heller's customer took the pretzels to New Jersey this fact was enough to make Pollock a person who was a producer of goods for interstate commerce and therefore within the coverage of the Fair Labor Standards Act. Schulte Co. v. Gangi, 328 U.S. 108, 66 L. Ed. 925, 90 L. Ed. 1114.

 Plaintiff testified that he was paid at the rate of only $ 1 an hour at all times. On the other hand, defendant testified that in accordance with his employment agreement he paid plaintiff at the rate of time and a half, that is, $ 1.50 an hour, for plaintiff's Saturday night and Sunday work. In my opinion the answer to which of the two parties is correct in his testimony in reference to this point can be found in an examination of defendant's employment records. Defendant kept his records himself and used books, which have been introduced in evidence by plaintiff, to record the number of hours which plaintiff worked each day. Defendant explained in his testimony that when plaintiff worked on Saturday nights and Sunday mornings he always credited plaintiff in these record books with one and a half times the number of hours plaintiff actually worked at these times. He said he did this because for the purpose of computing time and a half for plaintiff's Saturday night and Sunday work it was easier and simpler to give him credit for one and one-half times the actual number of hours he worked at these times than it would have been to record the number of hours plaintiff actually worked at these times and then in order to calculate his pay multiply this number by one and a half times the usual hourly rate of pay. An examination of these record books indicates that this contention of defendant is correct. Plaintiff testified that he kept no record of the number of hours he worked, but that he usually worked from ten o'clock on Saturday night until ten or twelve o'clock on Sunday morning. It is unlikely that he would have given himself credit for fewer hours than he worked. But defendant's books show that plaintiff frequently was credited with more hours than plaintiff testified that he worked. For instance, the book for 1948 credits plaintiff with having worked the following number of hours on Saturday nights and Sunday mornings:

 
Week of Sept. 25th, 17 hrs.
 
Week of Oct. 2nd, 17 1/2 hrs.
 
Week of Oct. 30th, 16 1/2 hrs.
 
Week of Nov. 3rd, 18 hrs.

 The record book for 1949 credits plaintiff with the following numbers of hours of work on Saturday nights and Sunday mornings:

 
Week of April 1st, 17 hrs.
 
Week of April 29th, 16 1/2 hrs.
 
Weeks of May 9th and May ...

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