Freeman v. Blake Co.

• Citation: 84 F. Supp. 700
• Decision Date: 07 June 1949
• Docket Number: Civ. No. 7720.
• Parties: FREEMAN v. BLAKE CO.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

84 F. Supp. 700

FREEMAN v. BLAKE CO.

Civ. No. 7720.

United States District Court D. Massachusetts.

June 7, 1949.

Thomas P. Flaherty, Dorchester, Mass., for plaintiff.

Samuel H. Cohen, Boston, Mass., for defendant.

WYZANSKI, District Judge.

1. This is a suit under the Fair Labor Standards Act, 29 U.S.C.A. c. 8 by an employee seeking recovery of wages, liquidated damages and an attorney's fee. Plaintiff filed the complaint July 14, 1948. The only serious issue is factual: how many hours did plaintiff work from July 14, 1946 through December 24, 1947.

2. Many facts have been stipulated. Defendant is a Massachusetts corporation making women's girdles. Plaintiff's employment is in commerce covered by the Act. She does not fall within any of the exemptions. Despite a broader contention originally made in her complaint, she now seeks recovery for underpayments only for the period beginning July 14, 1946 — that is, for the period beginning with the work week ending July 20, 1946. She recognizes that she can reach back only as far as that because she commenced her action on July 14, 1948 and there is a two year statute of limitations. § 6(b) of the Portal-to-Portal Act, 61 Stat. 87, 29 U.S.C.A. § 255(b). See Marchant v. Sands Taylor & Wood Co., D.C.Mass., 75 F.Supp. 783, 785.

3. Plaintiff was paid on the basis of a 40-hour work week at the following rates: from the week ending July 20, 1946 to the week ending September 28, 1946 at the rate of $45 a week; from the week ending October 5, 1946 to the week ending October 31, 1947 at the rate of $55 a week; from the week ending November 8, 1947 to the week ending December 27, 1947 at the rate of $60 a week.

4. During the above periods of time there were at least 28 weeks during which on account of holidays, vacations, sickness or other causes plaintiff actually worked less than 40 hours. Nonetheless, in those weeks she was paid the full rate above stated. During the above periods of time there were 4 separate weeks during which she currently reported in writing to defendant that she had worked more than 40 hours in that week. On receiving that written report and the calculation based thereon, defendant on the appropriate ensuing pay day paid plaintiff the amount so calculated. No claim is founded on any of those weeks. Due to these eliminations the claim covers 6 weeks when plaintiff was paid $45 a week, 35 weeks when plaintiff was paid $55 a week and 3 weeks when plaintiff was paid $60 a week.

5. To appreciate the claim it is proper to note at the outset that plaintiff is an astute, competent and knowledgeable woman of middle age. She once was co-manager of an enterprise for the manufacture of children's garments, and before working for defendant she had had about twenty years' experience as a stitcher and about eight years' experience as a forelady.

6. January 11, 1946 she went to work for defendant as a stitcher on a flatlock machine. A month later she was promoted to forelady in charge of the stitchers in the stitching room. Her starting rate was $45 a week. Her duties were to work with and to supervise about 15 to 17 girls during their working hours. During most of the time covered by the complaint these hours were from 8:00 a. m. to 12:00 noon and from 12:45 p. m. to 4:45 p. m. during the five days from Monday through Friday. There was a short span beginning in September 1946 and lasting for only a few weeks when the whole schedule was moved forward fifteen minutes.

7. Plaintiff herself did stitching and other work of the type her subordinates did. Rarely — not more than twenty times according to her own testimony — she also operated what is known as a flatlock machine. But the chief difference between her and her subordinates was that plaintiff had the continuing responsibility of sorting out their work, preparing for their signature and her signature records of hours they and she worked and reporting on their capacity and performance either to the president of the Company, Joseph M. Blake, or Miss Frances M. Farley, his confidential assistant and secretary and plaintiff's immediate superior.

8. No one reviewed the written records made by plaintiff as to the hours she worked except for the purpose of making mathematical computations and figuring amounts to be withheld for old age and income taxes.

9. The enterprise was a small one, operating only one shift and turning out at peak one hundred twenty-five dozen women's girdles per week. The schedule of manufacturing operations was prepared in Miss Farley's office and under her direction. She transmitted a regular schedule to plaintiff every day, and that schedule showed ordinary orders and rush orders. She also transmitted to plaintiff, if not every day, almost every day supplementary schedules of so-called rush orders. On receiving either type of schedule plaintiff took it into account in laying out work and selecting from the place where they were kept the necessary materials and placing them in bundles at the work bench of the operatives. There was virtually no time at which any operative was without a plan of work and proper materials for executing the plan.

10. It is undisputed that plaintiff started her morning at the same time as the workers under her direction, that is, at 8:00 a. m. except for the short span when she and they began at 8:15 a. m. She could not see either Mr. Blake or Miss Farley at the very start of the manufacturing day as they customarily arrived at 9:00 a. m. or later. They did stay, however, until 6:00 p. m. or later.

11. Plaintiff's story is that every week day in the 44 weeks in dispute she stayed after the operatives had left. She says she received on each of those 220 days after regular working hours rush orders from Miss Farley's office and selected and bundled the materials necessary for their execution promptly the next day. Usually she conferred with Mr. Blake and Miss Farley about the performance of the operatives and their production. In addition, on 4 individual days she worked the flatlock machine. It is her testimony that in each of the disputed weeks she worked eight hours overtime and that the reason that she did not record it is that once Miss Farley and twice Mr. Blake told her not to do so as it would create too much clerical confusion.

12. Plaintiff has no written records of her own and the records she prepared and signed for the company show that in the disputed 44 weeks she worked 40 hours a week.

13. However, to support her story plaintiff offered three witnesses. The first was Esten, who was a friend of plaintiff, who had worked with her as a co-manager of another enterprise and who had secured through plaintiff the employment he still holds with defendant. He testified that he left the factory at 6:00 p. m. every night and that at that hour plaintiff was usually just finishing so that they rode home together in his car, for which she paid the parking fee. Esten said plaintiff never finished before 6:00 p. m. Sometimes she finished later and on those nights he did not stay to give her a ride home.

14. John Daugherty, a clothes cutter, testified that while he was employed by the company he generally stayed until 5:00 p. m. or 5:30 p. m. and when he left he usually saw plaintiff working.

15. Miss Jean Robinson, who was formerly secretary to Mr. Blake, recalled that on some occasions Miss Farley directed plaint...