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MARSHALL v. BRUNNER

October 9, 1980

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
Ruth A. BRUNNER, Executrix of the Estate of Robert Brunner, Defendant



The opinion of the court was delivered by: SIMMONS

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Findings of Fact

 1. Plaintiff, the Secretary of Labor, United States Department of Labor, brought this action to enjoin the former defendant, Robert H. Brunner, from violating the provisions of Sections 6, 7, 11(c), 12(c), 15(a)(2), 15(a)(4) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (hereinafter referred to as the Act).

 2. During the pendency of this action, John H. Brunner died on May 14, 1980, and pursuant to F.R.C.P. Ruth A. Brunner, his wife, qualified as executrix of Robert H. Brunner's estate and was substituted as the new defendant in this case.

 3. Decedent, Robert H. Brunner was at all times relevant to this action, the sole proprietor of a place of business located at 370 Rochester Road, Pittsburgh, Allegheny County, Pennsylvania. Defendant's Answer at 1.

 4. Decedent, Robert H. Brunner, was at all times relevant to this action, engaged in the collection and disposal of garbage, trash and junk, trading and doing business as R. H. Brunner Sanitation Company. Defendant's Answer at 1. Decedent hired employees, set their rates of pay, and assigned job duties to each of them. Transcript, Volume II at 196.

 5. The business activities of decedent's garbage, trash and junk collection and disposal operation are related and performed through unified operation or common control for a common business purpose. Defendant's Answer at 1.

 6. The annual gross volume of sales made or business done by decedent at all times relevant to this action exceeded the amount of $ 250,000.00. Transcript, Volume I at 25.

 7. At all times relevant to this action, decedent's employees have handled and worked on goods and materials that were moved in or produced for commerce. Specifically, the parties stipulated that decedent purchased, on a regular and recurring basis, the following items for use in the operation of his business: trucks and truck bodies, tires, batteries and accessories, sixty gallon containers, shovels, brooms, oil and gas. Transcript, Volume I at 23-25. It was further stipulated that at least some of these items have been manufactured outside of Pennsylvania, and had moved in interstate commerce prior to decedent's purchase thereof. Transcript, Volume I at 23-25; Volume III at 80-81, 87.

 8. At all times relevant to this action, many of decedent's employees regularly collected, handled, loaded, transported and unloaded such goods as discarded automobile parts, metal household appliances, hot water tanks, and other scrap metal and junk. These goods were collected by decedent's employees during the course of their participation in township rubbish cleanups. Transcript, Volume II at 187-190, 225, 235-237, 270-274; Volume III at 156-158; Volume IV at 205-210, 218, 320-322; Volume VII at 791, 798.

 9. Decedent's employees delivered the discarded automobile parts, metal household appliances, hot water tanks, and other scrap metal and junk to scrap metal dealers. Said scrap metal dealers sold this scrap metal and other discarded junk to manufacturers outside of Pennsylvania, who ultimately processed said scrap into auto parts, appliances, and other products. Transcript, Volume IV at 206.

 10. In the course of his business operations, decedent employed truck drivers and helpers who are paid a flat daily rate of pay. The amount of said daily rate of pay varies from employee to employee and ranged, during the time period relevant to this action, from $ 20.00 per day to $ 50.00 per day.

 11. The truck drivers and helpers were paid the same daily rate regardless of the number of hours they worked.

 12. Decedent paid certain of his employees on an hourly basis. Transcript, Volume III at 85. Decedent paid his hourly employees for forty hours per week only, although said employees worked longer than 40 hours. Transcript, Volume III at 87-92.

 13. The truck drivers and helpers employed by decedent regularly worked between 10 and 12 hours per day, and sometimes longer. Transcript, Volume I at 59-60, 69-74; Volume II at 218, 220-222, 224, 226-232, 268, 279-280; Volume III at 129-130, 132-135; Volume IV at 215-217, 222-226, 322, 329-337, 384; Volume V at 392-395, 423-425, 427-432; Volume VII at 694-697, 700-704, 783, 785-789, 828-831, 834-840.

 14. Some of decedent's employees worked on Saturdays, making theirs a six day workweek. Transcript, Volume I at 71-74; Volume II at 229, 231; Volume III at 89, 133-134; Volume IV at 222-224, 226, 329-337; Volume V at 430; Volume VII at 701, 787, 804-806, 834-835.

 15. Decedent did not pay some of his employees any wages for their Saturday work. Other employees were paid for their Saturday work at rates lower than their weekday daily rate of pay. Transcript, Volume II at 231; Volume IV at 225; Volume V at 430; Volume VII at 835.

 16. Decedent kept no records of the hours worked by his employees on Saturdays, nor did he keep records of any wages paid for Saturday work. The Saturday wages, when paid, were not included in the weekly cash payment to the employee. Transcript, Volume II at 232; ...


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