The opinion of the court was delivered by: MARSH
These consolidated actions are for the recovery of unpaid overtime compensation which the plaintiffs allege is due them under the provisions of § 7 of the Fair Labor Standards Act, 29 U.S.C. § 207. Section 13(b)(1) of the Fair Labor Standards Act, 29 U.S.C. § 213(b)(1), provides an exemption from the maximum hours and overtime requirements of § 7 as regards "any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49". It appears that the plaintiffs, during the respective periods covered by their claims, were indeed subject to the Commission's regulatory power, and thus barred from recovery herein, if (1) the defendant was at such pertinent times a "private carrier of property by motor vehicle" within the meaning of 49 U.S.C. §§ 304(a)(3)
and (2) the duties performed by each and every one of the plaintiffs, during such periods, substantially affected the safety of operation of defendant's motor vehicles in the transportation of its property on the public highways in interstate commerce in furtherance of its commercial enterprise.
After trial to the court without a jury, I find in favor of the defendant, and consistent with such determination, make the following findings of fact and conclusions of law:
1. The defendant, Well Service, Inc., is a corporation organized and existing under the laws of the State of West Virginia, and is and at all pertinent times was engaged in the business of servicing and repairing oil and gas wells. Its principal place of business is at Charleston, West Virginia. It does business in Pennsylvania and has an office located at R.D. #6, Washington, Washington County, Pennsylvania. Its customers are located in West Virginia, Pennsylvania, Ohio, Kentucky, Virginia, and other states.
2. The plaintiff, Paul C. Harshman, was employed by the defendant from September, 1956 (T., p. 122) through December, 1962. His claim for overtime compensation covers the period from April 21, 1962 through December, 1962.
At all times pertinent, he lived in the vicinity of Washington, Pennsylvania, and reported to and worked out of defendant's base of operations there.
3. The plaintiff, Glen R. Jacobs, was employed by the defendant from April 1, 1961 through November, 1963. His claim for overtime compensation spans the period from April 21, 1962 through November, 1963. Until November 1, 1962, he lived in Cameron, West Virginia, and in tandem with plaintiff Ward worked out of what may be loosely (see finding No. 6, infra) described as the Cameron "base of operations". Thereafter, and through November, 1963, he lived in Washington, Pennsylvania, and reported to and worked out of defendant's base of operations there.
4. The plaintiff, Beryl D. Ward, was employed by the defendant from September, 1959 (T., p. 7) through February, 1964. His claim for overtime compensation covers the period from May 12, 1962 through February, 1964. At all times pertinent, he lived in and worked out of Cameron, West Virginia, except that he generally reported for work at the Washington base of operations during the defendant's winter seasons of 1962-1963 and 1963-1964.
5. The Washington, Pennsylvania, base of operations consisted of a branch office, shop, garage, and yard. Three of defendant's specially constructed pump trucks and three of its pickup trucks were garaged there. Various pieces of equipment and replacement parts were stored there. All of the plaintiffs reported there for work during the defendant's winter seasons.
6. The Cameron, West Virginia, "base of operations" appears to have been only a working arrangement whereby Ward and, for a time, Jacobs, were permitted to keep one of the defendant's pump trucks in a rented garage in Cameron, and drive same directly to the various job sites, thus foregoing any hardship entailed in reporting to work in Washington, as well as cutting down on mileage and road expenses. Both Cameron and Washington are near the West Virginia-Pennsylvania border, Cameron lying in the "panhandle" region of West Virginia which wedges tightly between southwestern Pennsylvania and southeastern Ohio in that general tri-state area.
7. From April, 1962 through February, 1964, the Washington and Cameron bases of operation serviced customers in West Virginia, Ohio and Pennsylvania. The chief customer activity consisted of "cementing" gas wells. This operation involved pressure-pumping a cement slurry down a pipe or casing installed in a well, causing the slurry to rise up along the outside of the pipe or casing to form a solid cement covering thereon and between said pipe or casing and the earth surrounding the drilled hole in which the pipe or casing had been set. Indispensable to this cementing operation was the heavy pumping equipment owned by defendant and permanently mounted upon each of its four specially constructed well-servicing vehicles (generally referred to herein as "pump trucks"). Also necessary to the operation were a tub, hopper, mixer, discharge pipes, suction hose and a few other pieces of auxiliary portable equipment, weighing in all 1,000 to 2,000 pounds, which items were owned by defendant and transported on its pump trucks to all job sites.
8. To fill an order from a well owner for a cementing job, defendant would dispatch one (and sometimes, two) of its pump trucks to the job site, together with a pickup truck carrying approximately 400 pounds of other portable tools and equipment owned by defendant and used in the operation. Normally, three employees were assigned to a job. One employee drove a pump truck to the job site from either Washington or Cameron; another, the job supervisor (called "the cementer") drove the pickup truck; and the third employee, when there was one, would ride to the job site in one of the aforesaid trucks or by private car, or else drive a second pump truck to the site.
9. At the job site, the two employees other than "the cementer" would unload the portable auxiliary equipment from the pump (trucks),
assemble it, and connect it to the permanently mounted pumping equipment.
After taking whatever measures were necessary to "kill" the gas well to ensure that the job would proceed safely, and mixing the cement,
they would commence pressure-pumping the cement into the pipe set in the drill hole.
10. The actual cementing operation, together with all time spent in unloading, assembling, disassembling and reloading the portable equipment owned by defendant, required one to two hours for rotary-drilled wells and a little longer for cable-drilled wells. Usually, however, because of drilling and construction delays arising in the activities of the well owner or drilling contractor, defendant's trucks and men would arrive at the job site only to find that the well was not ready for cementing. Then, the defendant's men stood idly by (and were paid) for hours on end (to an extreme of 33 consecutive hours spent on one job) until given a "go-ahead". Upon completion of the cementing job or jobs required ...