UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
April 11, 1967
W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff
Elwood P. Brady dba Elwood P. Brady, Defendant
The opinion of the court was delivered by: MARSH
Plaintiff has brought this action under the Fair Labor Standards Act of 1938, as amended, to restrain defendant from withholding back wages allegedly due under §§ 6 and 7 of the Act in violation of § 15(a)(2), 29 U.S.C. §§ 206, 207 and 215(a)(2), and to enjoin defendant from alleged continuing violations of the record-keeping provisions of the Act, §§ 11(c) and 15(a)(5), 29 U.S.C. §§ 211(c) and 215(a)(5) and of the regulations pursuant thereto, 29 C.F.R. § 516. Defendant denied all allegations and in a pretrial stipulation admitted only that the activities of his business came within the Act and that the employees upon whose behalf the plaintiff sued were covered by the Act.
From the testimony and the exhibits admitted into evidence, the court makes the following findings of fact.
Findings of Fact
1. Defendant, Elwood P. Brady, individually and doing business as Elwood P. Brady, is an individual proprietorship located at 116 Dickie Drive, Irwin, Westmoreland County, Commonwealth of Pennsylvania.
2. Defendant, Elwood P. Brady, individually and doing business as Elwood P. Brady, was at all times relevant engaged in the business of contract transportation or hauling of materials used in the manufacture of steel, said steel being shipped in interstate commerce.
3. The defendant was at all such times engaged in the removal of slag and other waste material from the Duquesne plant of United States Steel and from other plants of United States Steel located in the McKeesport area, which activities are closely related and directly essential to the production of the steel produced in the respective plants.
4. The defendant transported the slag to Duquesne Slag Company, where, after further processing of the unsegregated mass, a portion of the processed slag was used in the construction and reconstruction of interstate highways, streets and roads.
5. The defendant, during the period relevant, employed the following persons for the periods of time indicated: Elmer T. Anthony - 3/17/64 to 7/31/64; Wayne Austin - 7/8/65 to 7/29/65; Donald W. Brady - 7/30/64 to 12/9/65; Ronald Comer - 3/17/64 to 12/9/65; Sherman Wayne Friend - 3/17/64 to 10/15/64; Roland J. Gallagher - 4/29/65 to 11/4/65; Robert L. Guy - 11/11/65 to 12/9/65; Russell Keener - 10/15/64 to 12/31/64; William E. Lloyd - 3/17/64 to 12/9/65; Harry H. Logan - 3/17/64 to 12/9/65; Andrew C. Lynch - 11/26/64 to 9/30/65; John W. McGraw - 4/15/65 to 5/20/65; George McMarlin - 3/17/64 to 12/9/65; Ralph M. Plowman - 3/17/64 to 4/8/65; Harry Stalowski - 5/6/65 to 6/24/65; and Walter Ward - 7/8/65 to 12/9/65. During all these times these men were employed as truck drivers in the hauling and transportation activities of the defendant as specified in the preceding paragraphs.
6. The daily time books kept by the defendant, which were delivered to John C. Mondics, investigator for the Secretary, correctly showed the individuals employed by the defendant, the number of days each worked in each workweek and the number of hours worked each day.
7. Comparison of the defendant's general payroll ledger (plaintiff's Ex. B) with the defendant's daily time books (plaintiff's Exs. C-1 through C-5) establishes that the defendant failed to compensate 11 of his employees for all hours recorded in the daily time books.
8. By reason of the fact that no compensation was paid for certain hours worked as recorded in defendant's daily time book, the following amounts are due the 11 employees: Elmer Anthony - $20.00; Wayne Austin - $12.00; Donald Brady - $44.00; Ronald Comer - $58.25; Sherman Friend - $73.84; William Lloyd - $10.00; Harry Logan - $43.93; Andrew Lynch - $16.00; John McGraw - $20.00; George McMarlin - $25.00; Walter Ward - $12.00; or a total of $335.02 (T., pp. 121-128 and plaintiff's Ex. J).
9. The defendant paid, and all employees received, the same regular rate of $2.00 per hour for all hours worked, regardless of whether the hours were worked in overtime or non-overtime weeks.
10. The defendant failed to pay an overtime premium at the rate of one-and-one-half times the employees' regular rate of $2.00 per hour for all hours worked in excess of forty.
11. As a result of the defendant's failure to pay time-and-one-half for all hours in excess of forty, the following amounts of overtime premium are due the following employees: Elmer Anthony - $167.51; Wayne Austin - $39.00; Donald Brady - $509.26; Ronald Comer - $452.76; Sherman Friend -$959.78; Roland Gallagher - $55.50; Robert L. Guy - $18.50; Russell Keener - $115.00; William Lloyd - $556.50; Harry Logan - $146.69; Andrew Lynch - $947.75; John McGraw - $74.50; George McMarlin - $760.50; Ralph Plowman - $1,375.75; Harry Stalowski - $48.50; and Walter Ward - $549.50, or a total of $7,272.00 is due 16 employees of the defendant.
12. The defendant recorded compensation paid to his employees in four columns designated "regular time earnings" (R.T.E.), "overtime earnings" (O.E.), "other compensation" (O.C.), and "total earnings" (T.E.). Total earnings divided by hours worked always yields a rate of $2.00 per hour, regardless of the number of hours worked. For example:
Date Hours R.T.E. O.E. O.C. T.E.
George McMarlin 1/28/65 28 $35.00 0 $21.00 $ 56.00
3/25/65 50 50.00 $18.80 31.20 100.00
6/24/65 40 1/2 50.00 .94 30.06 81.00
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