Bailey v. PILOTS'ASS'N FOR BAY & RIVER DELAWARE
| Decision Date | 06 February 1976 |
| Docket Number | Civ. A. No. 73-789. |
| Citation | 406 F. Supp. 1302 |
| Parties | Robert W. BAILEY, Jr. v. The PILOTS' ASSOCIATION FOR the BAY AND RIVER DELAWARE et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Benjamin E. Zuckerman, Spencer, Sherr & Moses, Norristown, Pa., for plaintiff.
Richard H. Elliott, Clark, Ladner, Fortenbaugh & Young, H. Dawson Penniman, Philadelphia, Pa., for defendants.
1. Plaintiff, Robert W. Bailey, Jr., an individual residing in Blue Bell, Pennsylvania, is a pilot licensed by the Commonwealth of Pennsylvania to engage in pilotage on the Delaware Bay and River.
2. The Defendant Pilots' Association for the Bay and River Delaware is an unincorporated association with an office in Philadelphia, Pennsylvania, whose members engage in the providing of pilotage services in interstate commerce.
3. The purpose of the Association is to provide a convenient means of arranging pilotage services and for collecting fees.
4. The individually named defendants were, at the time this action was commenced, officers and/or directors of the Association.
5. Pennsylvania law requires, inter alia, that in order to become a licensed pilot, a person must serve as an apprentice on a pilot boat for four years. 55 P.S. § 41 et seq.
6. Plaintiff successfully applied to the Pennsylvania Navigation Commission to become an apprentice and, on July 1, 1968, executed an Agreement of Indenture to his father, Robert W. Bailey, Sr., a first-class pilot, and began serving his apprenticeship on the M/V Philadelphia, a pilot boat owned and operated by the Defendant Association.
7. During his periods of duty on the M/V Philadelphia, the Plaintiff was under the control and direction of the Defendant Association, its members, agents, or employees.
8. The Plaintiff was paid Five Dollars ($5.00) per month by the Association. Neither the Plaintiff nor the Association contemplated any other compensation to the Plaintiff at the outset of his apprenticeship. The Five Dollars ($5.00) per month was paid to Plaintiff during his time off the M/V Philadelphia during 1971 when he made trips with pilots on commercial vessels.
9. While an apprentice pilot, the Plaintiff, served, with certain exceptions for which no recovery is sought, one week on-duty and one week off-duty on the M/V Philadelphia. Plaintiff alternated six hours on-duty and six hours off-duty over the course of each week spent on the boat.
10. Plaintiff's duties during the first three years of his apprenticeship were primarily as a motor launch operator— ferrying pilots from the M/V Philadelphia to the ships, and a deckman—keeping watch and performing general seaman, deck-hand chores on the boat.
11. In October, 1971, the Plaintiff obtained his federal pilot's license and 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.
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, 67 S.Ct. 639, 91 L.Ed. 809 (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, 67 S.Ct. at 641. 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, 67 S.Ct. 639. Thus it must be determined whether the plaintiff was "employed" or was merely offered training so as to come within the Walling exception.1 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, 81 S.Ct. 933, 6 L.Ed.2d 100 (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, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). There are few reported decisions regarding the payment of minimum wages to persons in training. In Wirtz v. Wardlaw, ...
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