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DOUGLASS v. HURWITZ CO.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


October 10, 1956

James DOUGLASS
v.
HURWITZ CO., INC.

The opinion of the court was delivered by: DUSEN

The trial judge makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

 1. Plaintiff is a 65-year old man who was employed by defendant as the driver of a horse and parcel post wagon, of the type described in paragraph 2 below, from 1942 to June 10, 1945, and from August 11, 1952, to October 13, 1953. His duties included storing the wagon and removing it from storage, care of the horse, and harnessing it to the wagon, as well as driving. He can only read numbers but can sign his name. He did not know how many hours there were between 5 A.M. and 5 P.M.

 2. Defendant is a Pennsylvania corporation which, during the period from 1942 to and including October 13, 1953, was engaged in interstate commerce as a contract mail carrier in the business of furnishing to the United States Post Office Department closed parcel post wagons having a capacity of mail carrying space behind the driver's seat of 240 cubic feet, together with a horse and driver. As a driver of such a wagon, plaintiff was engaged in interstate commerce.

 3. Defendant maintained its stable and storage space for wagons at all times during the period from August 11, 1952, to October 13, 1953, at 1017-21 South 3rd Street, Philadelphia, Pa., and employed approximately 25 persons in the above-described business during this period.

 4. Plaintiff had a cataract in his left eye during the period prior to October 14, 1953, which obstructed his vision substantially, if not completely, in that eye. This physical defect, as well as his age, impaired the capacity of plaintiff to do the work described in paragraphs 1 and 2 above. *fn1" He was a good driver of a horse-drawn wagon of the type described in paragraph 2 above. Plaintiff's experience had been limited to working with horses and, at 61 years of age, his opportunities for employment would have been curtailed if he could not have been hired at a basic rate of 50 cents an hour. *fn2"

 5. During the period from 1942 to June 10, 1945, plaintiff was compensated by defendant as a handicapped worker for his work at a basic wage rate varying from 22.5 cents an hour to 30 cents an hour in accordance with Certificates issued by the Wage and Hour Division pursuant to Section 14 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 214, without any complaint on his part (see Exhibits D-6-A to D-6-D, inclusive -- N.T. 214-6). *fn3"

 6. Prior to August 11, 1952, plaintiff applied for work as a driver of a horse and wagon of the type described in paragraph 2 above at the offices of defendant company and signed an 'Application For A Special Handicapped Worker's Certificate' (Exhibit D-9) *fn4" for the job of driving horse-drawn equipment to be supplied to the United States Post Office Department at the basic rate of 50 cents. This application quoted plaintiff as stating:

 "I am physically unfit to do any hard work on account of my left eye (Cataract) and also on account of my age. This job is suitable for me."

 The purpose and content of the application was explained to plaintiff by employees of defendant (N.T. 168, 237-41) prior to his signing this application.

 7. As a result of this application, a Certificate (Exhibit D-4-A) authorizing defendant to employ plaintiff as a handicapped worker at the basic rate of 50 cents per hour from August 11, 1952, to July 31, 1953, was issued by the Authorized Representative of the Wage and Hour and Public Contracts Division, pursuant to Section 14 of the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 214, as well as to Regulation, part 524, 29 C.F.R. 524 and 29 U.S.C.A.App. §§ 524.1-524.13, issued under such Section 14 and to the Walsh-Healey Public Contracts Acts, 41 U.S.C.A. § 40. A copy of this certificate was furnished to plaintiff (N.T. 160).

 8. Prior to July 31, 1953, plaintiff signed a renewal application to secure a 'Special Handicapped Workers Certificate' for the period following July 31, 1953. This application (Exhibit D-16) *fn4" was virtually identical to that described in paragraph 6 above, contained the language quoted in that paragraph, and was signed after a similar explanation by an employee of defendant.

 9. As a result of the renewal application (Exhibit D-16) described in paragraph 8 above, a certificate (Exhibit D-4-B), authorizing defendant to employ plaintiff as a handicapped worker at the basic rate of 50 cents an hour from August 1, 1953, to July 31, 1954, was issued by the Authorized Representative, and pursuant to the legal authorities, mentioned in paragraph 7 above. A copy of this certificate was furnished to plaintiff (N.T. 160).

 10. The Wage and Hour Division made investigations of the employment practices of defendant because of their employment of over 20 employees who applied for the status of handicapped workers under Section 14 of the Fair Labor Standards Act of 1938, as amended, and Exhibits D-4-A and D-4-B were issued as a result of such investigations.

 11. plaintiff never filed any petition for review, even though the certificates mentioned in paragraphs 8 and 10 above each stated that they were 'approved without prejudice to the rights of any party to petition for review' under 29 C.F.R. 524.12, 29 U.S.C.A.App. § 524.11. Plaintiff never indicated to any one that he felt he was being underpaid or worked eleven hours a day until after his employment by defendant was terminated as a result of an accident suffered by plaintiff in October 1953.

 12. Defendant paid plaintiff $ 1,471.46 (N.T. 43) during the period August 11, 1952, to October 13, 1953, inclusive, computed at the rate of 50 cents an hour for basic pay and 75 cents an hour for overtime, in good faith and in reliance on Exhibits D-4-A and D-4-B (N.T. 257).

 13. During the period from August 11, 1952, to October 13, 1953, inclusive, plaintiff worked an average of 9 3/4 hours per day (10 hours from 6:30 to 4:30, less 15 minutes of completely free time during the lunch period). *fn5" During weeks that plaintiff worked 5 or 6 days, he also worked 15 minutes extra one day each work week of 5 days or more as a result of his wagon being greased. 14. Plaintiff became entitled to payment from defendant for the period August 11, 1952, to October 13, 1953, inclusive, in the amount of $ 1927.50, computed as follows: Hours at Hours at Basic Rate Overtime Weeks of Employment (50() Rate (75() 2 weeks of 3 days each, being weeks end- 48 10 1/2 ing: 8/13/52 and 1/7/53 3 weeks of 4 days each, being weeks end- ing: 11/12/52, 12/31/52 and 9/30/53 96 21 15 weeks of 5 days each, being weeks ending 8/20/52 2/25/53 7/ 8/53 9/ 3/52 4/ 1/53 8/19/53 10/ 1/52 4/22/53 8/26/53 12/ 3/52 5/13/53 9/ 9/53 2/ 4/53 6/ 3/53 10/14/53 600 131 1/4 42 weeks of 6 days each, being weeks ending: 8/27/52 1/14/53 6/10/53 9/10/52 1/21/53 6/17/53 9/17/52 1/28/53 6/24/53 9/24/52 2/11/53 7/ 1/53 10/ 8/52 2/18/53 7/15/53 10/15/52 3/ 4/53 7/22/53 10/22/52 3/11/53 7/29/53 10/29/52 3/18/53 8/ 5/53 11/ 5/52 3/25/53 8/12/53 11/19/52 4/ 8/53 9/ 2/53 11/26/52 4/15/53 9/16/53 12/10/52 4/29/53 9/23/53 12/17/52 5/ 6/53 10/ 7/53 12/24/52 2/20/53 5/27/53 1680 777 Extra hours in 5 and 6 day weeks as a re- sult of greasing of wagon, computed at 1/4 hour per week: 15 weeks at 1/4 hour 3 3/4 42 weeks at 1/4 hour 10 1/2 Totals 2424 954

19561010

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