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WIRTZ v. NOVINGER'S INC.

December 30, 1966

W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
Novinger's Inc. et al., Defendants


Follmer, D.J.


The opinion of the court was delivered by: FOLLMER

FOLLMER, D.J.

On August 16, 1966, plaintiff, the Secretary of Labor, filed his Complaint seeking to enjoin defendants, Novinger's Inc., and Robert Gulden, an individual, from violating the provisions of Section 15(a)(2) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended (52 Stat. 1060, as amended; 29 U.S.C. § 201 et seq.), hereinafter referred to as the Act, and for such other and further relief as may be necessary and appropriate, including the restraint of any withholding of payment of overtime compensation underpayments to, but not limited to, the employees (68) as specified in Exhibit "A" attached thereto and made a part thereof. The Complaint alleges that the action is specifically authorized by Section 17 of the Act.

 The Complaint further alleges that the defendants employ a total of one hundred thirty employees in and about their place of business in Harrisburg, Pennsylvania, and elsewhere within the Commonwealth of Pennsylvania, in lathing, painting, plastering, acoustical work, and other forms and modes of construction and reconstruction of buildings housing individuals, firms and facilities producing goods for interstate commerce, and/or engaged in interstate commerce, and in activities closely related and directly essential to the aforesaid principle activities, and, at all times mentioned therein, said employees were, and are, engaged in interstate commerce and/or in the production of goods for interstate commerce, within the meaning of the Act.

 In Paragraph VI the Complaint alleges that defendants have been, and are, engaged in the performance of related activities performed through unified operation and common control for a common business purpose, and accordingly were, and are, an enterprise within the meaning of Section 3(r) of the Act.

 In Paragraph VII the Complaint alleges that defendants are an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(4) of the Act.

 In Paragraph XI the Complaint alleges that defendants have, and are, violating the provisions of Sections 11(c) and 15(a)(5) of the Act, in that they have failed to make, keep and preserve adequate and accurate records of their employees and of the wages, hours worked, rates of pay, total straight earnings and total overtime compensation for each work week, since May 6, 1964.

 Plaintiff asks for judgment enjoining and restraining the alleged violations, all of which it is alleged is specifically authorized by Section 17 of the Act. Attached to the Complaint is a list of sixty-eight of the employees and a summary of unpaid wages, including period covered by work week ending dates and gross amounts due each employee.

 Defendants answered, contending (second defense) that the action was not properly brought under Section 7 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 256, since written consents from the employees to whom overtime compensation is allegedly due have not been filed with the Court; and (third defense) that the two year statute of limitations provided in Section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255, has not been tolled on any of the claims for payment of back wages involved in this action. Defendants demanded a jury trial but during oral argument on the motions on November 21, 1966, they withdrew their demand for jury trial.

 The matter is presently before the Court on motion of plaintiff to strike the second and third defense contained as aforesaid in defendants' Answer.

 Basically, defendants' contention is that this is a suit for back wages by the Secretary of Labor on behalf of a number of employees under Section 17 of the Fair Labor Standards Act and is a collective or class action within the meaning of Section 7 of the Portal-to-Portal Act.

 Section 7 of the Portal-to-Portal Act, 29 U.S.C. § 256, reads as follows:

 
"In determining when an action is commenced for the purposes of section 255 of this title, an action commenced on or after May 14, 1947 under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action instituted under the Fair Labor Standards Act of 1938, as amended, or the Bacon-Davis Act, it shall be considered to be commenced in the case of any individual claimant -
 
"(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date ...

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