thereafter, until June 30, 1972, his duties included being in charge of the watch and maneuvering the M/V Philadelphia.
12. As an apprentice, the Plaintiff was counted as a member of the crew toward the legal requirement for a full crew complement.
13. The Plaintiff received minimal supervision and instructions from the Association or its members during his apprenticeship relevant to the duties and skills of a licensed river pilot.
14. The Plaintiff was given time off from serving on the M/V Philadelphia to study for his federal and state licenses. No recovery is sought for those periods.
15. The Plaintiff learned the duties and skills of a river pilot by making trips up and down the river accompanying licensed pilots on commercial vessels. The Plaintiff made no trips on the river during his on-duty hours on the M/V Philadelphia, nor did the Association arrange for those trips as part of its apprenticeship program.
16. There was some educational benefit to the Plaintiff from serving on the M/V Philadelphia, service on a pilot boat was necessary to become licensed by the Commonwealth and the M/V Philadelphia was the only boat available for such a purpose. Nevertheless, the Association derived the primary, immediate and substantial benefit from the Plaintiff's work on the pilot boat.
17. The Association operates the M/V Philadelphia for a twofold purpose: (1) as a way station for the pilots in going to and coming from ships; (2) to provide an opportunity for apprentices to fulfill the statutory requirements to become a licensed pilot.
18. The Association was not required by law to accept or train apprentices.
19. The Association owns and operates a shore facility at Lewes, Delaware, a lighthouse, which is presently inadequate to fulfill the functions of the M/V Philadelphia. An eventual conversion to using a shore station might be more economical than using the pilot boat.
20. The possible application of the minimum wage to the apprentices was discussed by the officers of the Association on several occasions from 1961 until 1973.
21. The Association received inconclusive advice from counsel on the minimum wage question and decided in good faith not to pay the minimum wage scale to apprentices.
22. The Plaintiff was a member of the crew of the M/V Philadelphia during his apprenticeship.
23. The Plaintiff's duties on the M/V Philadelphia, a registered vessel in navigable waters, were maritime in character.
24. The Association acted primarily for its own benefit and convenience in providing the Plaintiff with a place to sleep because he was required to be on the pilot boat for seven days at a time.
25. The meals provided Plaintiff were primarily for his own benefit.
26. At the rate of $1.60 per hour (the applicable minimum wage rate) for the hours which Plaintiff proved that he worked aboard the M/V Philadelphia from April 4, 1970 to June 30, 1972, Plaintiff is entitled to wages in the gross amount of $4,070.40.
27. Plaintiff has not sustained his burden of proving that he worked on certain disputed dates and dates for which no work records were produced.
28. Plaintiff was paid $140 by the Association from April 4, 1970 to June 30, 1972. This amount is to be deducted from the gross amount due plaintiff.
CONCLUSIONS OF LAW
1. This court has jurisdiction over the subject matter of the instant action which arises under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended; 28 U.S.C. § 1337.
2. The Defendant Association is liable to the Plaintiff for unpaid minimum wages because the Plaintiff was an "employee" of the Association during his apprenticeship within the meaning of 29 U.S.C. § 203(e).
3. The Defendant Association is not a political subdivision of the state for the purpose of training apprentices. 29 U.S.C. § 203(d).
4. The individually named defendants are not personally liable to the Plaintiff, there being no evidence to support such a finding.
5. The Defendant Association is not liable for overtime compensation because the Plaintiff was employed as a seaman on the M/V Philadelphia. 29 U.S.C. § 213(b)(6).
6. The applicable statute of limitations is three years because the violation was willful within the meaning of 29 U.S.C. § 255.
7. The Defendant Association is not liable to the Plaintiff for liquidated damages. 29 U.S.C. § 260.
8. The cost of the sleeping facilities furnished to Plaintiff is not includable as wages.
9. The reasonable cost of the meals furnished Plaintiff by the Association are includable as wages and shall be deducted from $3,930.40, the total amount of wages to which Plaintiff is entitled.
10. The Defendant Association is liable to the Plaintiff for reasonable attorney's fees. 29 U.S.C. § 216(b).
11. The Defendant Association shall pay the costs of this action. 29 U.S.C. § 216(b).
The basic issue presented is whether the defendants were required by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (FLSA) to pay the plaintiff minimum wage and overtime compensation while he was an apprentice-pilot on the M/V Philadelphia. According to the FLSA, "employee" is "any individual employed by an employer", and "employ" means "to suffer or permit to work". 29 U.S.C. § 203(e) and (g).
The Supreme Court interpreted these definitions in Walling v. Portland Terminal Co., 330 U.S. 148, 91 L. Ed. 809, 67 S. Ct. 639 (1947), where it was determined that prospective brakemen were not entitled to the minimum wage for the one week of practical training they were afforded by a railroad company.
The definition "suffer or permit to work" was obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another. . . . The Act's purpose as to wages was to insure that every person whose employment contemplated compensation should not be compelled to sell his services for less than the prescribed minimum wage. The definitions of "employ" and of "employee" are broad enough to accomplish this. But, broad as they are, they cannot be interpreted so as to make a person whose work serves only his own interest an employee of another person who gives him aid and instruction.
Id. at 152. The Court considered the facts that the trainee's work did not expedite the company's business and did not displace any regular employees. Id. at 150. Thus it must be determined whether the plaintiff was "employed" or was merely offered training so as to come within the Walling exception.
See Ballou v. General Electric Co., 433 F.2d 109, 112 (1st Cir. 1970).
The test to determine whether an employment relationship exists is one of "economic reality." Goldberg v. Whitaker House Co-op, Inc., 366 U.S. 28, 33, 6 L. Ed. 2d 100, 81 S. Ct. 933 (1961). To be considered are the circumstances of the whole activity, not merely isolated factors. Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947). There are few reported decisions regarding the payment of minimum wages to persons in training. In Wirtz v. Wardlaw, 339 F.2d 785 (4th Cir. 1964), the court rejected the defendant's claim that his employees were not entitled to the minimum wage because he was teaching them enough to enable them to determine if they would be interested in careers in the insurance business where their activities were folding, addressing and mailing newsletters and birthday cards. An interesting recent case held that public school students were not entitled to minimum wage compensation for compulsory cafeteria duty because such duty has educational value. Bobilin v. Bd. of Education, 403 F. Supp. 1095 (D. Hawaii 1975).
The case at bar seems to lie somewhere between Wardlaw where the workers were not trainees at all, and Bobilin where the dominant role of the plaintiffs was as students. Though it appears that the parties in the instant action did not contemplate compensation for the apprenticeship period, the duties performed by the Plaintiff were of immediate benefit to the Defendant Association. There was evidence that the apprentices substituted for hired men at times and their number was counted toward the full legal complement. In serving as deckman and mate, regularly running a motor launch ferrying pilots to and from commercial vessels and standing watch on the M/V Philadelphia, the Plaintiff was not taking a training course but was performing tasks necessary to the functioning of the pilot boat.
While it cannot be said that the Plaintiff learned nothing from these activities, most of his training took place on his own time. The Plaintiff had to make all of his trips accompanying licensed pilots on commercial vessels during his weeks off the M/V Philadelphia. Such trips were relevant and vital to learning pilotage but were no part of the Association's apprenticeship program. There was evidence that the Plaintiff was called in to work at times during his vacation or weeks off. For the foregoing reasons, the Plaintiff was an employee of the Defendant Association during his apprenticeship.
Any employee "employed as a seaman" is exempt from the overtime pay requirements of the FLSA. 29 U.S.C. § 213(b)(6). The word "seaman" is not defined in the Act. Whether one is a seaman depends upon the work actually performed, not the job title. Walling v. W.D. Haden Co., 153 F.2d 196, 199 (5th Cir.), cert. denied, 328 U.S. 866, 90 L. Ed. 1636, 66 S. Ct. 1373 (1946). Three requisites were named in Robblee v. Aiken Towing Corp., 90 F. Supp. 579, 580-81 (N.D. Fla. 1950): (1) the person must be a member of the ship's crew; (2) the duties performed must be maritime in character; (3) the duties must be rendered on vessels in navigable waters. Each of these elements is present in the case at bar. The Plaintiff was counted as a member of the ship's crew. His duties of running the motor launches, general maintenance and standing watch were maritime, and the M/V Philadelphia was in the navigable waters of the Delaware Bay and River.
A similar standard was set forth in Walling v. Sternberg Dredging Co., 64 F. Supp. 758, 761 (E.D. Mo.) aff'd, 158 F.2d 678 (8th Cir. 1946).
[An] employee should be regarded as employed as a seaman if he performs, as master or subject to the authority, direction, and control of the master aboard a vessel, services which are rendered primarily as an aid in the operation of such vessel as a means of transportation . . . .