Dole v. Solid Waste Services, Inc.
| Decision Date | 14 July 1989 |
| Docket Number | Civ. A. No. 88-1066. |
| Citation | 733 F. Supp. 895 |
| Parties | Elizabeth DOLE, Secretary of Labor, United States Department of Labor v. SOLID WASTE SERVICES, INC., a corporation, trading as J.P. Mascaro & Sons and as Hoch Sanitation and Lackawanna Transport Company; J.P. Mascaro & Sons, Inc. trading as J.P. Mascaro & Sons and Hoch Sanitation and Lackawanna Transport Company, Pasquale Mascaro, Individually as employer for Solid Waste Services, Inc. and J.P. Mascaro & Sons, Inc., Mike Mascaro, Individually as employer for Solid Waste Services, Inc. and J.P. Mascaro & Sons, Inc., Joseph P. Mascaro, Individually as employer for Solid Waste Services, Inc. and J.P. Mascaro & Sons, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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George P. Salem, Solicitor of Labor, Marshall H. Harris, Regional Solicitor, Linda M. Henry, Atty., U.S. Dept. of Labor, and Jerry G. Thorn, Acting Sol. of Labor, Philadelphia, Pa., for plaintiff.
William F. Fox, Jr. and Sean P. Flynn, Norristown, Pa., for defendants.
FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW AND ORDER
This action is brought by the Secretary of Labor to enjoin the individual defendants and defendant corporations they own and control from violating sections 6, 7, 11, 12, and 15 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. hereinafter, the Act or the FLSA. The complaint seeks injunctive relief, backwages, and an award of liquidated damages pursuant to section 16(c) of the Act, 29 U.S.C. § 216(c).
During the period covered by the complaint, January, 1985 through February, 1989, defendants employed over 300 individuals in the solid waste disposal industry. The vast majority of these individuals are covered by the FLSA. Complexity is added to what would have been a relatively straightforward case by defendants' corporate structure and payroll practices. In three separate "divisions," defendants maintain at least twenty-five separate payroll classifications.
Trial without a jury was held over eleven days in February and March, 1989.1 During the course of pre-trial proceedings, it became clear that this is essentially a factual dispute in which the result turns largely upon the credibility of the witnesses and the accuracy of the Secretary's methods of computing overtime wages due employees. In addition to voluminous documentary exhibits, testimony from sixty-five witnesses was presented. The parties also submitted pre- and post-trial motions, briefs, and proposed findings of fact and conclusions of law.
In the post-trial motions, the Secretary moves to amend the complaint to add Lackawanna Transport, Inc. as a defendant and to include employees employed by it in the action. Because I will grant plaintiff's motion to amend the complaint, I shall include Lackawanna Transport, Inc. as a defendant in making the findings of fact and the caption of the action will be amended accordingly. Defendants move to strike the Secretary's request for liquidated damages under section 16(c) of the Act. Because the substance of this motion should have been raised as a demand for a jury trial in advance of trial, I will deny defendants' motion. I will discuss these motions further below.
Pursuant to Fed.R.Civ.P. 52(a), I make the following findings of fact:
I. Corporate Structure
1. Defendants are engaged in the trash removal and solid waste disposal industry. Notes of Testimony, March 23, 1989 at 70-71.2
2. J.P. Mascaro & Sons, Inc. was incorporated in or about 1970. The original
shareholders were J.P. Mascaro,3 Joe Mascaro, Frank Mascaro, Lou Mascaro, Mike Mascaro, and Pasquale ("Pat") Mascaro. N.T., 3/23 at 74.
3. Hoch Sanitation, Inc. was formed by the Mascaros in late 1984 or early 1985. N.T., 3/23 at 75.
4. Lackawanna Transport Company, Inc. was formed by the Mascaros in late 1985 or early 1986. N.T., 3/23 at 76.
5. On or about January 1, 1987, the Mascaros formed Solid Waste Services, Inc. On or about the same date, J.P. Mascaro & Sons, Inc., Hoch Sanitation, Inc., and Lackawanna Transport Company, Inc. became owned and controlled by Solid Waste Services, Inc. ("Solid Waste"). Each of the predecessor companies became an operating division of Solid Waste. N.T., 3/23 at 76-78.
6. At all times relevant to this action, these companies were owned and controlled by Joseph P. Mascaro, Mike M. Mascaro and Pat Mascaro (collectively, the "Mascaros").
7. The business affairs of all defendants are operated together. The operating divisions of Solid Waste, defendants Hoch Sanitation, Inc. ("Hoch"), Lackawanna Transport, Inc. ("Lackawanna"), and J.P. Mascaro & Sons, Inc. ("JPM") share the same officers and controller. N.T. 3/27 at 96, 3/23 at 74-76, 78. The payroll system for all defendants is operated from the corporate headquarters by a payroll clerk. N.T., 3/23 at 83. At the operating centers, payroll data is compiled on a daily basis. Id.
8. Lou and Frank Mascaro are not actively engaged in the management of the companies' affairs. N.T., 3/23 at 84. Pat, Joe, and Mike Mascaro are employers, as defined by section 3(d) of the Act, 29 U.S.C. § 203(d), of the employees listed on schedules A, B, and C of the complaint as amended by plaintiff's motion to amend during trial. Court Exhibit 1 at ¶ 34; N.T., 3/23 at 82-83.
9. Pat Mascaro sets pay practices for employees, N.T., 3/27 at 38, and the budget for payroll. N.T., 3/27 at 84.
10. Joe Mascaro manages existing facilities, oversees the construction of new facilities and purchasing. N.T., 3/23 at 82. Joe also informs employees about wage rates and practices. N.T., 2/22 at 137.
11. Mike Mascaro manages the defendants' business in Montgomery County. N.T., 3/23 at 82. He hires employees for Lackawanna, N.T., 2/22 at 94, directs employees' work hours, N.T., 2/22 at 87; 3/23 at 37; 3/20 at 74, and sets wage rates for Lackawanna employees. N.T., 2/21 at 119; 3/20 at 58; 3/23 at 37. He also answers employee inquiries concerning wages and employment policies. Id.
II. Employment of Minors
12. The following minors were employed by defendants:
Date of Age when
Name Birth Employed Citation
Vernon Wright 10/30/69 17 GX 24
Troy Schneck 11/5/71 16 GX 24, DX 4
E. Hardy n/a 17 N.T., 2/22 at 48
J. Hardy n/a 15 Id
H. Reynolds 1/20/70 16 N.T., 3/8 at 61
J. Reynolds 11/6/68 17 N.T., 3/8 at 58
13. Wright, Schneck, Reynolds, and the Hardys were employed by Hoch as pickers or truck loaders. In those capacities, they worked on the exterior of motor vehicles loading trash while the vehicle traveled on public roads.
III. Deduction of Time for Lunch Breaks
14. Solid Waste and its operating divisions deducted one-half hour per day from the pay of all hourly employees for a lunch break. DX 1 at 9; N.T., 3/8 at 46; 3/13 at 8, 29; 3/21 at 27.
15. Defendants' general manager testified that the half hour is deducted whether or not the employee actually takes the break. N.T.,...
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