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MITCHELL v. BRANCH MOTOR EXPRESS CO.

November 25, 1958

James P. MITCHELL, Secretary of Labor, United States Department of Labor,
v.
BRANCH MOTOR EXPRESS COMPANY, a corporation



The opinion of the court was delivered by: DUSEN

This case comes before the court on plaintiff's prayer to enjoin the defendant from alleged violations of the Fair Labor Standards Act (hereinafter called the 'Act'), 29 U.S.C.A. § 201ff., through employing certain employees for more than forty hours per week without paying them overtime pay as required by the Act (29 U.S.C.A. § 207).

The following requests of the parties for findings of fact, as modified below, are adopted as findings of fact of the trial judge and are supplemented by the findings stated herein:

 A. These paragraphs of plaintiff's Requests for Findings of Fact: 1-4; 5, with the word 'handling' substituted for the word 'production'; 6-10; 11, with parentheses inserted in the last sentence before the word 'mostly' and after the word 'consignees' and with the words 'as well as' inserted in the same sentence before the word 'telephone'; 12, with the second sentence reworded to read 'He has five drivers making pickups and deliveries in Reading, each of whom makes an average of 6 to 8 calls, and ten to twelve drivers in the country around Reading, each of whom makes 2 to 3 calls, or a total of about 60 calls a day (N.T. 124, 125).'; 13, with the words 'shippers and' inserted before the word 'drivers' in the second sentence; 14, with an 's' added to the word 'trailer' in the two places this word appears in the last sentence; 15, with this language inserted after the word 'it' in the second sentence: '(the background necessary for the job of dispatcher)'; 16-17; 18, with this sentence added at the end of the paragraph: 'However, if the drivers prescribed by such contract are not available, the dispatcher has the discretion to hire such drivers as he selects and does hire such drivers.'; 19, with the word 'sometimes' inserted before the word 'refer' in the first sentence; 20, with the first sentence deleted and the words 'after making their own check as to such driver's qualifications' inserted after the word 'list' in the second sentence and the words 'except as stated above' inserted after the word 'employees' in the next-to-the-last line; 21-23; 24, with the words 'but Frederick tries to straighten out complaints which the drivers often present to him' substituted for the words 'or complaints of driver' in the first line and the number '166' inserted in the parentheses; 25, with these words added at the end: 'unless the need of such repairs is known to them.'; 26-29; and 30, with the word 'early' substituted for the word '1958' in the first sentence of sub-paragraph c, the word 'all' deleted from sub-paragraph f, and the following sentence added at the end of sub-paragraph f: 'He must follow the instructions of the dispatcher as to which equipment to work on from time to time.'

 B. These paragraphs of defendant's Requests for Findings of Fact: 1-7; 8, with the words 'and account for 90% of his time' deleted from the 10th and 11th lines, the word 'sometimes' substituted for the word 'often' in the 14th line, and the word 'operation' substituted for the word 'operator' in the 22nd line of page 4; 9, with the words 'and in their absence' inserted at the end of the 6th sentence and the last sentence deleted; 10, with the first sentence deleted; and 11-13.

 I. The Dispatchers

 Plaintiff has employed two dispatchers (among a total of approximately 99 employees) at its Reading, Pennsylvania, terminal for the period from prior to 1955 until the present. These men have worked from 52 to 62 hours per week *fn1" at a salary which has varied between $ 110 and $ 120 a week. The primary duties and responsibilities of these dispatchers are to supervise the pick-up and delivery of shipments in the Reading area and the arrangements for the transportation of such shipments to and from the Reading terminal over the routes approved by the Interstate Commerce Commission (hereinafter called 'ICC') for use by defendant. In order to perform such duties and responsibilities, the dispatchers must use discretion and independent judgment in these matters, among others:

 A. Planning and directing the local drivers as to the order, method (including type of vehicles to be used), and, occasionally, the routing to be used in making pick-ups and deliveries. *fn2"

 B. Directions on the loading of the long-distance vehicles in order to insure safety, prevention of 'back-tracking' (N.T. 56-7), and compliance with state weight limitations.

 C. Directions for the maintenance readiness of the vehicles. *fn3"

 D. Directions given to the platform supervisors and their men *fn4" in doing their work of loading, unloading, and storing the shipments (N.T. 103-4, 169-171, 184-5).

 E. Disciplining, suspending, and recommending for discharge drivers and other employees who are not performing their work properly (cf. N.T. 110-11, 166-7).

 F. Employing extra drivers in situations where more than the usual quantity of shipments necessitates the use of extra vehicles, which is a weekly occurrence when business is good. *fn5"

 G. Determining the number and size of vehicles to be used.

 I. Directions given to the long-distance drivers on safety measures required by the load (N.T. 15).

 The dispatcher is in control of the major part of the business of the defendant in the Reading area (N.T. 60, 114). Although the Regional Manager and the Terminal Manager are superior in authority to the dispatcher, *fn6" neither of them are at the Reading office for even a majority of the working day and, in their absence, the dispatcher is in complete charge of the operation (N.T. 62, 126, 197). Therefore, more than half of the 9 A.M. to 5 P.M. workday and from 6:30 A.M. to 9:00 A.M. and from 5 P.M. to after midnight, the dispatcher is the highest official conducting the defendant's business at the Reading terminal. Even when the Terminal Manager is present, the dispatcher controls and supervises the defendant's transportation business in the Reading area, including the work of the drivers and platform workers. *fn6"

 Mr. Frederick (one of the dispatchers) testified as follows (N.T. 147, 148, 188):

 'And I take pickup calls, because I have to know what the shipper is shipping, the type of material, so I can send the type of trailer that is needed for that particular shipment and fit it into the operation where it is best fitted in.

 'And, well, as the day goes along -- every day is different. I mean, according to pickups and deliveries. I might use ten drivers one day, 20 drivers th next day, but that is up to me to decide, because I ...


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