Barbe v. Cummins Const. Co.

• Decision Date: 08 March 1943
• Docket Number: Civil Action No. 906.
• Citation: 49 F. Supp. 168
• Parties: BARBE v. CUMMINS CONST. CO.
• Court: U.S. District Court — District of Maryland

49 F. Supp. 168

BARBE v. CUMMINS CONST. CO.

Civil Action No. 906.

District Court, D. Maryland.

March 8, 1943.

Wylie L. Ritchey and George A. Mahone, both of Baltimore, Md., for plaintiff.

Miles & O'Brien and A. Walter Kraus, Jr., both of Baltimore, Md., for defendant.

CHESNUT, District Judge.

This is a suit under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., to recover unpaid compensation for overtime work under section 207. That section provides:

"No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce —

"(1) for a workweek longer than forty-four hours during the first year from the effective date of this section Oct. 24, 1938,

"(2) for a workweek longer than forty-two hours during the second year from such date, or

"(3) for a workweek longer than forty hours after the expiration of the second year from such date,

unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

The facts of the case are contained in a stipulation of facts made by the parties, which is a summarization of certain depositions heretofore taken in the case. This stipulation, supplemented to some extent by the agreement of counsel in open court, may be further summarized and condensed as follows:

The Cummins Construction Company is a Maryland corporation which for many years past has been engaged in a large way as a general contractor for the construction of buildings, largely for industrial purposes, in Baltimore City and the State of Maryland and, to some extent, elsewhere. The plaintiff was employed by it as a "cement finisher" more or less continuously from November 1938 to August 1940. In its labor relations the defendant maintained a closed shop agreement with labor unions and paid the union scale of wages. The plaintiff was a member of such a union and was paid in accordance with the union scale by the defendant during the whole period of his employment. His hourly rate of pay was always more than one dollar per hour for straight time and therefore always more than the minimum rate prescribed by section 206 of the Act.

The controversy in this case as to overtime pay arose from the following situation. It is the contention of the defendant that throughout the time of the plaintiff's employment its union employes were paid at the rate of double time for overtime work, that is, for hours of work in excess of eight hours a day or forty hours a week; but about three-fourths of the time-keepers employed by the defendant to record the time of different employes made their daily or weekly reports of overtime, not on the basis of so many hours overtime specifically, but by turning in a report of the number of hours overtime as straight time multiplied by two. That is to say, if on any day an employee, such as Barbe, worked for nine hours, the time-keeper would credit him with ten hours work as straight time, and therefore the time credited to the respective employes as entered on the general books of the defendant showed not the actual overtime, in most instances, but a really overstated amount of overtime. This was in accordance with current practice generally prevailing and made no difference in the actual compensation paid to the employes according to the union scale of wages; but it was obviously not in strict accordance with the requirements of the Fair Labor Standards Act. It appears that the attention of the defendant was not called to this situation with respect to its records until the plaintiff Barbe made his claim in this case, when promptly under advice of counsel the defendant changed its practice so that the record of the employes' time on its books was made specifically with respect to the exact amount of overtime in each case. The plaintiff's contention with respect to the amount of overtime is based on the defendant's books as the amount of time is recorded thereon without correction for the incorrect practice. The plaintiff contends that he is entitled to extra compensation on the basis of the whole weekly overtime as thus shown on the defendant's books; while the defendant contends that if the books are properly corrected to correspond with the real facts there is no unpaid overtime under the Act now due to the plaintiff. However, for the purpose of this case, it has been stipulated by counsel that this dispute as to the alleged unpaid overtime shall be liquidated at five hundred dollars ($500.), including the additional equal amount as stipulated damages provided for in the Act (section 216(b), in the event that the court is of the opinion under all the facts that the plaintiff is entitled to recover.

With respect to the latter question as to whether the plaintiff is entitled to any extra compensation under section 207, the facts of the case are these. In the course of its building operations the defendant makes a general contract with the property owner for the construction of a particular building. The defendant then in turn frequently makes sub-contracts with sub-contractors for the materials or labor or sometimes both materials and labor for a part of the whole work. The defendant at times also directly orders material for the construction work and also employs directly its own labor for the work to be done thereon at the building site. In some cases, probably the majority, the defendant's order for materials is placed directly with a material man in Baltimore City, but in other cases the order is given directly to a material man or sub-contractor in another State. In some cases the material ordered is produced within the State of Maryland, but in others it is shipped into the State from other States, either on the order of the defendant directly or through a sub-contractor. In all cases the material is delivered on the site of the work or at least in Baltimore City, and in the latter case is transported from the carrier's terminal to the site of the work.

During the period of the plaintiff's employment by the defendant the plaintiff was engaged from time to time as a "cement finisher" in connection with the construction work in Baltimore City of seven separate buildings and in one case, that of the York Safe & Lock Company, the plaintiff was employed by the defendant at York, Pennsylvania, for a very short period of time in November 1938. In all cases the plaintiff's work was limited to the cement and concrete work necessary in connection with the buildings. Apparently the cement was generally obtained by the defendant from local suppliers, or from its own warehoused stock in Baltimore, but in case of one of the eight buildings the cement was ordered by the defendant from the local branch of a foreign corporation, and shipped to Baltimore from another State. For some of the buildings the cement work constituted a large part of the whole construction; in others, it was only used for particular purposes, as in foundations or grouting for structural steel, or as a base for steel vault doors. For all the buildings some of the material was delivered in Baltimore from States other than Maryland, either on orders from the defendant to local branch officers, or directly to the foreign vendors, or on orders of the defendant's sub-contractors.

The plaintiff's work was primarily that merely of a cement "finisher", that is, levelling or pointing up the concrete after the wooden frames were removed therefrom; but in other cases he assisted in pouring the cement into the wooden forms. His work did not involve in any case the handling or transportation of supplies or materials shipped into Maryland from other States. Ordinarily the plaintiff acted simply as an individual workman, but in some cases, where there were several cement finishers at work at one time, he acted as foreman or assistant foreman for that class of work. A case illustrating the kind of work done by Barbe was that of the Coca Cola Building in Baltimore City, constructed by the defendant as the general contractor in the latter part of 1938, and 1939. The structural steel for this particular building was ordered by the defendant directly from the Bethlehem Steel Company at Bethlehem, Pennsylvania; was shipped from Pottstown, Pennsylvania, to the defendant in Baltimore and erected by the defendant. For the same building the defendant placed an order with the Celotex Corporation of Chicago, Ill., for lumber to be used in the cement forms, which was shipped from Laurel, Mississippi, to the defendant at Baltimore. Barbe worked in connection with grouting the structural base plates on which the structural steel rests. He had no connection with installation of the structural steel except in connection with the grouting. He worked in connection with the pouring of concrete around the horizontal and vertical structural steel. This work was done in the usual way with wooden frames and concrete poured into the forms. In the case of the same building wooden frames were used in connection with placing of the cement floors; when the frames were removed the finishing process took place where the ceiling was entirely concrete. Barbe worked in connection with the smoothing or chipping off of the irregular places of concrete and supervised the...