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HODGSON v. PENN PACKING CO.

November 19, 1971

James D. Hodgson, Secretary of Labor, United States Department of Labor, Plaintiff
v.
Penn Packing Co., Inc., Defendant


Wood, D. J.


The opinion of the court was delivered by: WOOD

WOOD, D. J.

This is an action instituted by the Secretary of Labor charging defendant Penn Packing Company, Inc. (Penn Packing) with violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. The Secretary seeks to restrain defendant from withholding payment of overtime compensation allegedly due to certain Penn Packing employees and to enjoin further violations of the Act.

 The Secretary charges that defendant committed two separate violations of the Act. The first alleged violation was the employment of two employees for a workweek in excess of the statutory maximum without payment of overtime compensation. The second violation was the employment of eight employees, including the two previously mentioned, for weekend work without paying the amount of overtime compensation required by the Act. The parties have stipulated that defendant and its employees were engaged in interstate commerce and/or the production of goods for interstate commerce within the meaning of the Act. They have further stipulated as to the amount of back wages for which defendant company is liable in the event that we find that it violated the provisions of the Act. We make the following

 Findings of Fact

 1. Allan Brown is an employee of defendant Penn Packing.

 2. Brown's activities include some inside sales work, production work, the pricing of bills and the correlating of orders. (N.T. 14)

 3. Brown spends approximately fifteen to twenty hours per week compiling and correlating orders. (N.T. 19) He spends four to five hours per day pricing bills, this work being done not continuously, but in conjunction with other activities. (N.T. 15)

 4. Brown is employed for a workweek in excess of forty hours. (N.T. 17)

 5. Brown receives a flat salary of $150.00 per week. (N.T. 22)

 6. Howard L. Kessler is employed by Penn Packing as an inside salesman. (N.T. 31)

 7. Kessler spends approximately 90% of his time taking orders over the telephone. (N.T. 31)

 8. In setting prices for orders received over the telephone, Kessler generally consults and is guided by a standard pricing sheet used by meat companies. He may, on occasion, use his discretion in setting a price, but such instances are unusual. (N.T. 39-40)

 9. Kessler is employed for a workweek in excess of forty hours. (N.T. 32)

 10. Kessler receives a flat salary of $155.00 per week. (N.T. 35)

 11. Anthony J. Roccia and Lawrence Rose are employed by Penn Packing as maintenance men. (N.T. 51, 55) Anthony Foglia, Gerald Friedman, Ryszard Wojiechowski and Bolec Staniec are employed by Penn Packing as butchers. (N.T. 44, 59, 65, 68)

 12. At one time Penn Packing employed part-time employees on weekends to perform miscellaneous duties such as painting, repairing pallets, cutting grass and cleaning up. They were paid approximately $3.00 per hour. (N.T. 22, 45, 69, 91)

 13. Each of the above-mentioned employees consulted Mr. Martin Lipoff, President of Penn Packing and requested that they be allowed to perform these extra weekend duties in addition to their regular employment.

 14. The employees and Lipoff entered into oral agreements whereby the employees would perform the weekend work previously done by outside employees.

 15. Howard Kessler was employed by Penn Packing on Friday evenings checking in truckdrivers. (N.T. 36) He was paid a flat rate of $2.50 per hour which made no provision for overtime compensation. (N.T. 36)

 16. The remaining seven employees performed the duties described in Finding No. 12. This work was generally performed on Saturdays. Most of the employees were paid a base rate of $1.8325 per hour and, with overtime compensation, a total of $2.75 per hour. The others were paid a base rate of $2.00 per hour and, with overtime compensation, a total of $3.00 per hour.

 17. Penn Packing has kept payroll journals indicating the number of hours worked by its employees and the amount of compensation received. The journals show the number of overtime and non-overtime hours worked and the compensation for each. The records are sufficient to ...


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