Wirtz v. M & B CONSTRUCTION COMPANY

• Decision Date: 18 March 1963
• Docket Number: No. 11111-M-Civil-DD.,11111-M-Civil-DD.
• Citation: Wirtz v. M & B CONSTRUCTION COMPANY, 216 F. Supp. 169 (S.D. Fla. 1963)
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. M & B CONSTRUCTION COMPANY, Inc., a Corporation, Raymond J. Mears and Cecil Loy, Defendants.
• Court: U.S. District Court — Southern District of Florida

216 F. Supp. 169

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. M & B CONSTRUCTION COMPANY, Inc., a Corporation, Raymond J. Mears and Cecil Loy, Defendants.

No. 11111-M-Civil-DD.

United States District Court S. D. Florida, Miami Division.

February 19, 1963.

As Amended March 18, 1963.

Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, Birmingham, Ala., for plaintiff.

Prebish & DuVal, Miami, Fla., for defendants.

WHITEHURST, District Judge.

The Secretary of Labor, plaintiff in this action, seeks to restrain defendants M & B Construction Company, Inc., et al., from violating the provisions of Sections 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.

The pleadings raising the issues in this action are plaintiff's Complaint, filed November 6, 1961, defendants' Answer, consisting of a general denial of the material allegations of plaintiff's Complaint, served on plaintiff February 8, 1962, and the parties' pre-trial Stipulation heretofore filed herein, which Stipulation is a part of the record in this action.

On November 15 and 16, 1962, the issues were tried to the Court sitting without a jury. Based on the Complaint and Answer, the pre-trial Stipulation of the parties and the testimony of witnesses and exhibits received in evidence on the trial of this action the Court now enters its Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Defendant, M & B Construction Company, Inc., a Corporation, is now, and at all times material hereto subsequent to January 4, 1960, was a corporation organized under and existing by virtue of the laws of the State of Florida, having its principal office and place of business at 618 N.E. 8th Street, Hallandale, Broward County, Florida, within the jurisdiction of this Court, with an office also located on Gallagher Road, Plant City, Hillsborough County, Florida, within the jurisdiction of this Court and is, and at all times material hereto subsequent to January 4, 1960, was engaged as an independent contractor in the installation of gas distribution pipelines for local companies engaged in selling gas to individual consumers.

2. Defendant, Raymond J. Mears, resides at 701 N. E. 137th Street, Miami, Dade County, Florida, within the jurisdiction of this Court, and is secretary-treasurer of the defendant corporation. In his capacity as secretary-treasurer, the said Raymond J. Mears actively supervises and directs the business affairs and operations of said corporation in relation to its employees.

3. Defendant, Cecil Loy, resides at 88 Glendale Drive, Miami Springs, Dade County, Florida, within the jurisdiction of this Court, and is president of the defendant corporation. In his capacity as president, the said Cecil Loy actively supervises and directs the business affairs and operations of said corporation in relation to its employees and he is, therefore, an employer of said employees.

4. Defendants, Raymond J. Mears and Cecil Loy are co-partners in a partnership known as M & B Construction Company having their principal office and place of business at 618 N.E. 8th Street, Hallandale, Broward County, Florida, within the jurisdiction of this Court, where they are now engaged as independent contractors of gas distribution pipelines for local companies engaged in selling gas to individual consumers.

5. At all times material to this action subsequent to January 4, 1960, defendant corporation has operated principally in the Tampa area of defendants' combined operations.

6. At all times material to this action defendants Raymond J. Mears and Cecil Loy, partners doing business as M & B Construction Company, have operated primarily in the Miami area of defendant's combined operations.

7. During the period since January 14, 1959, and until the present time defendants have regularly contracted, as an independent contractor, with the Florida Gas Utilities Corporation of Miami, Florida, and the Peoples Gas System, Inc., of Miami, Florida, and Tampa, Florida to extend their existing gas distribution pipeline system, by installing new gas distribution pipelines to new gas consumers and customers in the same local area.

8. The gas pipelines referred to in paragraph 7 hereof were and are designed to transmit and do transmit natural gas through said gas pipelines.

9. The natural gas referred to in paragraph 8, above is produced in oil fields located in the States of Texas and Louisiana and is transmitted from said oil fields to the Florida Gas Company inside the State of Florida. Florida Gas Company wholesales and transmits this natural gas within the State of Florida, to other wholesaling transmission lines, one of their wholesale customers being the Florida Gas Transmission Company, who, after receiving this gas within the State of Florida, transmits and delivers it to their wholesale customers, amongst which are the Peoples Gas System, Inc., of Miami and Tampa, Florida and the Florida Gas Utilities Corporation in Miami, Florida. These several gas transmission companies have connecting transmission lines which permit the gas to be transmitted from its out of state source to the local utilities firms in a continuous movement, not substantially interrupted in route or changed by any process, until it reaches the utilities firms where it is processed, by them, for delivery and sale to their local consumers as described in paragraph 10.

10. The said natural gas is delivered to and purchased by Peoples Gas System, Inc. and Florida Gas Utilities Corporation at points prior to being introduced into their distribution system, for delivery to their customers. The gas is received at these points at pressures varying from 100 to 150 pounds at which place it is necessary for the gas utilities firms to reduce the pressure of the natural gas, vaporize, odorize and oil fog the gas prior to its being introduced into the distribution pipeline system for sale to customers. The operation conducted by the local gas utilities firms described...