Donovan v. Kaszycki & Sons Contractors, Inc.

• Decision Date: 21 December 1984
• Docket Number: No. 82 Civ. 3287 (JES).,82 Civ. 3287 (JES).
• Citation: 599 F. Supp. 860
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. KASZYCKI & SONS CONTRACTORS, INC., A Corporation and William Kaszycki Individually and as President, Defendants.
• Court: U.S. District Court — Southern District of New York

599 F. Supp. 860

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v.KASZYCKI & SONS CONTRACTORS, INC., A Corporation and William KaszyckiIndividually and as President, Defendants.

No. 82 Civ. 3287 (JES).

United States District Court, S.D. New York.

December 21, 1984.

COPYRIGHT MATERIAL OMITTED

Jay S. Berke, Regional Sol., Philadelphia, Pa., for plaintiff, U.S. Dept. of Labor; Francis X. Lilly, Sol. of Labor, U.S. Department of Labor, Washington, D.C., William M. Gonzalez, New York City, of counsel.

James W. Dougherty, Jersey City, N.J., for defendantsKaszycki & Sons Contractors, Inc.

George Farber Aney, Herkimer, N.Y., for defendantWilliam Kaszycki.

OPINION & ORDER

SPRIZZO, District Judge:

Plaintiff Donovan, United States Secretary of Labor, brings this action pursuant to section 17 of the Fair Labor Standards Act of 1938("FLSA"), 29 U.S.C. § 217, to enjoin defendantsKaszycki & Sons Contractors, Inc.("Kaszycki & Sons") and William Kaszycki("Kaszycki") from (1) violating sections 6(a), 7(a),11(c)and15(a) of the FLSA, 29 U.S.C. §§ 206(a),207(a),211(c) & 215(a), and (2) from withholding wages due defendants' employees pursuant to sections 6(a)and7(a), and for liquidated damages pursuant to section 16(c) of the FLSA, 29 U.S.C. § 216(c).The action was tried to the Court without a jury.This Opinion and Order constitutes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

IFINDINGS OF FACT

Defendant Kaszycki & Sons was at all relevant times a New York corporation engaged in the business of demolition.Plaintiff's Pre-Trial Order ("PTO")¶ V¹;Plaintiff's Exhibit 31 ("P.Ex. 31")at 10-12.Kaszycki & Sons is an enterprise

engaged in commerce or the production of goods for commerce ... in that its employees were engaged in commerce or the production of goods for commerce, or handled or otherwise worked on goods or materials that have been moved in or produced for commerce, and it has an annual gross volume of sales made or business done of not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated) .... and in that its employees were engaged in the business of construction or reconstruction or both.

PTO at V.At all relevant times defendant Kaszycki was president of Kaszycki & Sons, P.Ex. 31at 11, and ran the corporation, id. at 12.Kaszycki formed Kaszycki & Sons for the purpose of contracting with Trump Equitable Fifth Avenue Company("Trump") to demolish the Bonwit Teller building located at Fifth Avenue and 56th Street in Manhattan.Id. at 10-11, 16-17.²

Prior to forming Kaszycki & Sons, Kaszycki owned and ran at least two other companies, hired employees for those companies, and paid his employees minimum wage and overtime compensation.Id. at 6-10.With respect to another demolition job performed just before the Trump job, however, defendant testified he was not aware of how many hours his employees worked, how they were paid, or whether they received compensation for overtime.Seeid. at 28-33.

The demolition work on the Bonwit Teller building commenced on or about January 29, 1980, seeP.Ex. 31at 16, and was completed on or about June 21, 1980, seeTrial Transcript ("Tr.")at 96.Kaszycki hired Zbigniew Goryn("Goryn") as supervisor of the job, seeTr.at 5-6;P.Ex. 31at 22, 33, and Bodgan Krawczynski("Krawczynski") as timekeeper, seeTr.at 55-56;P.Ex. 31at 43-44, 90.Kaszycki was generally on the job site daily, and at least once a week, unless he was out-of-town.SeeP.Ex. 31at 39, 48;Tr.at 71.

Kaszycki, and on his authority Goryn and Krawczynski, hired employees to do the work under the Trump contract.See, e.g.,Tr.at 72-73, 175;P.Ex. 31at 33-35, 39, 46.³Among those employees were all of the persons listed in Appendix A to this Opinion and Order ("the employees"), seeTr.at 115-16.Defendants also employed members of Local 95 of the Housewreckers Union ("the union employees").P.Ex. 31at 35, 37, 61, Exhibit 2.⁴Defendants' recordkeeping and payment of wages with respect to the union employees is not at issue in the instant action.In fact, the evidence demonstrates that defendants kept complete records for the union employees and timely paid them full regular and overtime compensation, seeTr.at 104-05;P.Ex. 31at 66-73, 97, Exhibit 3, in compliance with the same provisions of the FLSA that defendants are alleged to have violated with respect to the non-union employees.Based on the foregoing, the Court finds that defendants were or reasonably should have been aware of the FLSA requirements at issue herein with respect to minimum wage, overtime compensation, and recordkeeping.

The non-union employees worked on two twelve-hour shifts.The first shift, or day shift, generally ran from 6:00 a.m. to 6:00 p.m., and the second shift, or night shift, ran from 6:00 p.m. to 6:00 a.m., seven days a week.E.g.,Tr.at 7-9, 72;P.Ex. 31at 42-43.⁵Kaszycki was aware that the employees worked these hours, seeP.Ex. 31at 42-43, and that they were therefore entitled to be paid for overtime, id. at 58.Goryn supervised the day shift, e.g.,Tr.at 16, 48;P.Ex. 31at 35, 41, and Krawczynski supervised the night shift, e.g.,Tr.at 9, 48, 60;P.Ex. 31at 43-44.Each kept records of the hours worked by the men on their respective shifts.E.g.,Tr.at 9, 56;P.Ex. 31at 41.

Goryn's time record for first shift employees, which was lost, was reconstructed for purposes of this litigation in P.Ex. 33.SeeTr.at 24-27.Krawczynski's record of hours worked by second shift employees is reconstructed in P.Ex. 35.SeeTr.at 57-62.Kaszycki testified that he had seen at least Krawczynski's time records.P.Ex. 31at 46.Some of the employees kept records of their own hours worked and wages received or owed.⁶Kaszycki, Goryn and Krawczynski all testified that Goryn and Krawczynski were responsible for keeping the time records.SeeTr.at 9-10, 56;P.Ex. 31at 41.

It appears, however, that defendants, the employers, neither received nor kept these records, and that no formal company records were kept by defendants in the company offices or in any central recordkeeping office, with respect to these employees, seeP.Ex. 31at 58-59, 73-74, although, as Kaszycki knew, the company bookkeeper did keep records with respect to the union employees.SeeTr.at 101, 170;P.Ex. 31at 35-36, 67-68.

The records kept by Goryn and Krawczynski did not contain information with respect to Social Security numbers, seeTr.at 74, 77-78, 99;P.Ex. 31at 74, although some employees had Social Security numbers.⁷There was also no record of employees' addresses.SeeTr.at 99.

Defendants agreed to pay these employees $4 to $6 an hour, depending on their skills and the work they performed.See, e.g.,Tr.at 10, 39-40;P.Ex. 31at 35;see alsoP.Ex. 13at 13.All these agreements appear to have been oral, and there were no written contracts with respect to employment or rate of pay.See, e.g.,P.Ex. 31at 84;P.Exs. 1-14, 16, 18, 20, 22-23, 25-27, 29, 40.No provision was made for overtime compensation with respect to hours worked in excess of forty hours in any workweek.Tr.at 89.⁸

Defendants did not pay the employees on a weekly or regular basis, but paid them sporadically, if at all, and in amounts less than was due,⁹ a fact which Kaszycki admitted.P.Ex. 31at 51.Kaszycki would give money to Goryn and Krawczynski to pay the employees on their respective shifts.See, e.g.,Tr.at 34-35;P.Ex. 31at 32, 48, 95-96.On occasion, Kaszycki paid some employees directly, sometimes by personal check, but in most instances, he gave money to Goryn and Krawczynski for that purpose.See, e.g.,Tr.at 43;P.Ex. 31at 48.¹⁰

Kaszycki kept no records of the amount of money given to Goryn or Krawczynski to pay the employees.SeeP.Ex. 31at 49.While he testified that his secretary was aware of the amounts he took for this purpose, there is no record reflecting this.Seeid. at 50.However, Goryn kept a book, placed in evidence as P.Ex. 32, in which he recorded the wages due and monies paid to the day shift employees, seeTr.at 13, and Krawczynski kept a record, P.Ex. 37, of the wages owed the night shift employees, seeTr.at 67-68;P.Ex. 22at 14;P.Ex. 40 at B-25, B-46.Krawczynski also prepared a record of money owed to first shift employees, P.Exs. 34 and 37A, apparently prepared at Kaszycki's request.SeeTr.at 63-65, 68.Kaszycki knew of the arrearage in wages due to employees, and discussed the problem with both Goryn and Krawczynski, seeTr.at 32-33, 71, and with the employees themselves.See, e.g.,P.Ex. 31at 51-52, 101.¹¹

James Dondzil("Dondzil"), a compliance officer for the Wage and Hour Division of the Department of Labor, conducted an official investigation of Kaszycki & Sons and William Kaszycki with respect to the demolition job, for the period of January to June, 1980.Tr.at 96-97.In the course of this investigation, Dondzil requested from defendantsall employee payroll records.Defendants gave Dondzil records regarding the union employees, but no records were produced with respect to the non-union employees, including those listed in Appendix A. SeeTr.at 100;P.Ex. 31at 73.The records kept by Goryn and Krawczynski were not produced by the defendants, Tr.at 99-100, but were obtained directly from Goryn and Krawczynski, id. at 142-43.

Dondzil and two assistants interviewed approximately twenty-six employees with respect to, inter alia, their place and period of employment, the amount they were supposed to be paid, the amount they actually were paid, and whether or not they received overtime compensation.In the course of this litigation, twenty-nine employees were deposed with respect to the same topics.SeeTr.at 97-98.

The employee interview statements, compiled in P.Ex. 40, and the depositions, P.Exs. 1-29, along with the deposition testimony of defendant Kaszycki,...