The opinion of the court was delivered by: LAYTON
This is a criminal action brought under Section 215 of the Fair Labor Standards Act of 1938, as amended. 29 U.S.C.A. §§ 201-219. The evidence presents questions concerning coverage of the Act and the burden of proof to be borne by the government in a criminal proceeding such as this. Plaintiff has charged defendants with violations of the Act in four counts:
Count I -- that defendants wilfully and unlawfully paid a night watchman named Samuel Wright less than the minimum wage of one dollar an hour during the period beginning January 8, 1958, and ending December 27, 1958.
Count III -- that defendants wilfully and unlawfully made false records of the hours worked by seven named employees during the period January 1, 1958, and February 25, 1959.
Count IV -- that defendants wilfully and unlawfully failed to keep and preserve any record showing the hours worked by Samuel Wright, the night watchman, during the period beginning January 8, 1958, and ending December 27, 1958.
Defendants plead not guilty to all parts of the information which pertain to Samuel Wright, the night watchman. (Counts I, II & IV). Defendants also plead not guilty to parts of Count II pertaining to another employee named Horace Spikes. As to all other employees named in Counts II and III, defendants plead nolo contendere, thus admitting the allegations. Therefore, only Spikes and Wright need be considered here. Defendants concede that there was wilful failure to keep records of hours worked by Wright as alleged in Count IV. Defendants' sole contention with respect to Count IV is that Wright does not fall within the scope of the Fair Labor Standards Act. Defendants deny failure to pay a minimum wage or overtime to Wright as alleged in Counts I and II. It was stipulated that the other employee, Spikes, is covered by the Act. But defendants say the government has failed to prove the violations alleged, thus raising only issues of fact, which must now be determined by the court, since defendants waived a jury.
The facts are as follows. United Wrecking Corporation is a Pennsylvania corporation whose business is demolishing buildings and selling the scrap. In December of 1957, defendant, Edward A. Skyanier, president of United, entered into a contract with another Pennsylvania corporation to demolish buildings on a large area near Philadelphia known as the 'Brill Site.' Under the contract, United purchased certain buildings on the site and agreed to demolish and remove all the materials comprising the buildings, leaving the site clean of debris. Paragraph 5 of this contract provided that United 'shall * * * maintain security for the protection of the aforesaid buildings and property upon the site and shall engage night watchmen for such purpose and purposes.' Partly pursuant to this contract provision and partly to retain favorable public liability insurance rates, defendants employed Wright as night watchman in the winter of 1958. He worked continuously from January 1, 1958, to December 27, 1958. Spikes was employed by United at the Brill Site as a burner and as a truck driver during the period January 1, 1958, and February 25, 1959.
In the words of Maurice Skyanier, defendant's son, Wright's duties were to 'protect anyone or anything that would have to be protected' on the Brill Site. Wright walked around the plant and checked tool boxes and equipment to make certain none were taken. He guarded piles of scrap on the site, which included scrap iron, copper, wires and lumber. There was also a quantity of used brick in the area patrolled by Wright. Occasionally Wright would put out fires and would call the fire department if a blaze got out of control. At all times he was supposed to keep pedestrians and trespassers away from the property, especially school children during the late afternoon and early evening. During weekdays, Wright began work at 4:30 in the afternoon when the wrecking crew left for the day, and watched until 8:00 the following morning, when the workmen returned. Wright also watched on week ends whenever there was a holiday or for some other reason none of the wrecking crew worked. While on duty Wright stayed at a shack located on the site premises where he cooked, took naps, and kept warm during the course of his duty. Wright was paid $ 30 a week by either defendant, Edward A. Skyanier, or his son, Maurice Skyanier, although he occasionally received $ 2 extra for work on Saturdays and $ 5 extra for work on Sundays. There is evidence from which it might be inferred that the scrap iron, lumber, wire and copper guarded by Wright was eventually sold to various dealers. However, careful search of the record reveals no evidence showing that any such purchasers came from a state other than Pennsylvania or that the scrap metals and lumber guarded by Wright found its way into interstate commerce. On the other hand, used brick in substantial quantities were from time to time purchased by an out-of-state buyer and hauled to a neighboring state.
In addition to watching, Wright utilized some of his spare time cleaning used brick that lay about the site. For this activity he was paid $ 6 per thousand brick cleaned. Over the period January 1958 to December 1958, Wright cleaned approximately 6,000 brick for which he received about $ 36. The only evidence in the record that used brick on the Brill Site found its way into interstate commerce is the testimony of Charles J. Della Vecchia, President of the Jersey Dunbrik Manufacturing Company, a firm having its principal place of business in Osage, N. J. Della Vecchia bought used brick located on the Brill Site from defendants in periodic transactions from April to November 1958. Analysis of 42 checks drawn by Jersey Dunbrik Manufacturing Co. to the order of United in payment for used brick (Government Exhibit No. 7) shows that 152,600 used brick were purchased by Della Vecchia for a total of $ 2183.10 over the eight month period. If each check is viewed as a separate transaction, there were 42 trips from New Jersey to the Brill Site in Pennsylvania where Della Vecchia (or his employees) loaded trucks with used brick. For the eight months, there was an average of five trips made, and 19,075 brick worth $ 272.89 purchased each month. However, Della Vecchia testified that he had never hired a brick cleaner at the Brill Site, and never paid separate amounts to have brick cleaned there. There is no evidence that he knew Wright or purchased brick that had been cleaned by Wright. Wright was not the only brick cleaner. During the course of the year in question there were approximately ten brick cleaners at the Brill Site. There were also approximately four or five other jobbers such as Della Vecchia who bought used brick. It is significant that the record does not show whether these other jobbers were local or from another state. The court recognizes that plaintiff cannot be required to trace each individual brick cleaned by Wright into the hands of an interstate purchaser. Southern Advance Bag & Paper Co. v. United States, 5 Cir., 1943, 133 F.2d 449. But in a criminal proceeding the government must prove its allegations beyond a reasonable doubt. This the government has not done. The 6000 brick cleaned by Wright for an entire year represents only 3.9% Of the 152,600 brick purchased by the only interstate purchaser, Della Vecchia, in eight months. There is a reasonable doubt that Della Vecchia purchased any of the brick cleaned by Wright. It is obvious that 96.1% Of the brick purchased by Della Vecchia was cleaned by the other ten cleaners. It seems quite possible that all of it was cleaned by them.
The evidence amply justifies the following findings relating to alleged violations of the Act:
(1) Wright was employed by defendants for more than 40 hours a week and was wilfully paid no overtime wages during the period January 8, 1958, to December 27, 1958.
(2) Wright received only $ 30 a week wages during this period, which is less than the statutory minimum wage of one dollar an hour. The failure of defendants to ...