Hutchinson v. William C. Barry

• Decision Date: 04 May 1943
• Docket Number: No. 1833.,1833.
• Citation: 50 F. Supp. 292
• Court: U.S. District Court — District of Massachusetts
• Parties: HUTCHINSON v. WILLIAM C. BARRY, Inc.

50 F. Supp. 292

HUTCHINSON v. WILLIAM C. BARRY, Inc.

No. 1833.

District Court, D. Massachusetts.

May 4, 1943.

Hammer, Karff & Goldberg, A. S. Karff, and Scotta V. Weymouth, all of Boston, Mass., for plaintiff.

Brown, Field & McCarthy and Horace P. Moulton, all of Boston, Mass., for defendant.

WYZANSKI, District Judge.

1. This is an action brought under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., by an employee against an employer.

2. The defendant, William C. Barry Inc., is a Massachusetts corporation engaged as a motor carrier, both common and contract, in both interstate and intrastate commerce. It is subject to the provisions of Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq., and is admitted to be engaged in commerce as defined in § 3(b) of the Fair Labor Standards Act.

3. The defendant gave to Andrew J. Murphy authority to employ persons as washers, greasers, loaders and the like. Sometime prior to October 5, 1939, Murphy on behalf of the defendant employed John W. Hutchinson, the plaintiff. At the time of the hiring, Murphy explained the job as washing trucks and doing odds and ends in the defendant's garage in Medford. He said the schedule of hours would be from 7 P. M. to 7 A. M. with one hour off for a meal on each of the six work days of the week, except that there would be holidays on the night before New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Columbus Day, Thanksgiving and Christmas. That is, the normal work week was 66 hours. He said that the pay would be $30 a week. He did not specify an hourly rate; and, never having heard of the Fair Labor Standards Act or considered its application to the work in question, he did not seek to incorporate expressly or impliedly its terms within the offer of employment. The plaintiff accepted employment upon the terms offered and went to work on October 5, 1939. The parties have stipulated that this work made the plaintiff "engaged in commerce or in the production of goods for commerce" within the meaning of that phrase in § 7 of the Fair Labor Standards Act, but the defendant claims that the provisions of that section do not apply as a result of § 13 (b) of the same Act.

4. The plaintiff kept a record of his total time worked by making a record upon the defendant's time cards but in no other way. The defendant used these cards to calculate wages, social security taxes and the like and then destroyed the cards. However, the defendant preserved the wage data and those reflect accurately for present purposes (though not in the manner required by the regulations of the Wage and Hour Administrator and perhaps not in a manner which would exculpate the defendant in an equity or criminal proceeding brought by appropriate representatives of the government) the total hours worked by the plaintiff each week.

5. Neither the plaintiff nor the defendant kept any record of how the plaintiff divided his working time among several tasks. The testimony with respect to the division consists entirely of the generalized recollection of the plaintiff and those of the defendant's employees who were around the garage.

6. In performance of the agreement the plaintiff worked a full 66 hours each week beginning October 5, 1939, and ending July 25, 1940, except that he worked a shorter time, as indicated in the following table, during thirteen weeks:

                (1)  the week beginning November 9,   55 hours
                (2)   "   "       "     November 23,  55   "
                (3)   "   "       "     December 21,  44   "
                (4)   "   "       "     December 28,  44   "
                (5)   "   "       "     February 1,   55   "
                (6)   "   "       "     February 15,  55   "
                (7)   "   "       "     March 7,      55   "
                (8)   "   "       "     April 4,      44   "
                (9)   "   "       "     April 11,     55   "
                (10)  "   "       "     May 23,       55   "
                (11)  "   "       "     June 27,      55   "
                (12)  "   "       "     July 18,      55   "
                (13)  "   "       "     July 25,      55   "
                

The plaintiff also worked at other times not now material.

7. The plaintiff received a compensation of $30 for each of these weeks except that he received $25 for the weeks beginning February 15, April 4, and June 13.

8. During each of these weeks the plaintiff spent at least one-half and sometimes nine-tenths of his working time in washing trucks, auto bodies and the like. During the period as a whole, that is, from October 5, 1939, through July 25, 1940, the plaintiff spent about two-thirds of his working time in washing.

9. When he was not washing automobiles, the plaintiff spent his working time in loading trucks, in driving to supply houses in the area of Greater Boston to secure necessary parts for repairing automobiles, in driving trucks from the defendant's Medford garage to its Somerville warehouse and return, and in driving automotive equipment to points in or outside of Massachusetts where defendant's trucks had had a breakdown. Upon the basis of the unsatisfactory oral testimony, I find that for the period as a whole, that is, from October 5, 1939 through July 25, 1940, the plaintiff spent about one-third of the time in these miscellaneous tasks, and more of that time, particularly before March 17, 1940, (when the greaser who formerly drove to obtain auto parts lost his license), was devoted to loading than to any other activity. No evidence was offered to show, and it is impossible to ascertain, how much of the time in any particular hour or week was devoted to any one of or to all these miscellaneous tasks.

Conclusions of Law.

1. The essential question in this case is whether the plaintiff, who admittedly would otherwise be within § 7 of the Fair Labor Standards Act, is removed from its operation by § 13(b). That subsection states in part that "The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act." 52 Stat. 1060, 1068, 29 U.S.C.A. § 213(b).

2. The findings show that the plaintiff spent two-thirds of his total time washing trucks and one-third loading and driving trucks of a common and contract carrier in interstate and intrastate commerce. If substantially all his time had been spent loading and driving trucks, the Interstate Commerce Commission, under § 204 of the Motor Carrier Act, 49 U.S.C.A. § 304, would have had power to establish maximum hours for him, the power would have been exercised, and he would have been within the exemption of § 13(b) of the Fair Labor Standards Act. I.C.C. Ex Parte No. MC-2; I.C.C. Ex Parte No. MC-3; United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345; Richardson v. James Gibbons Co., 4 Cir., 132 F.2d 627; Robbins v. Zabarsky, D.C.D.Mass., 44 F.Supp. 867. But where, as here, only one-third of his time is so spent at loading and driving and the rest at washing, the problem is more difficult.

3. Numerous issues are raised: (1) does § 204 of the Motor Carrier Act give the Interstate Commerce Commission the power to establish maximum hours for employees who spend only one-third of their total working time and in many weeks only one-tenth of their time at loading and driving; (2) if § 204 of the Motor Carrier Act gives the power, has the Commission exercised it; (3) if the Commission has the power but has not exercised it, does § 13 (b) of the Fair Labor Standards Act give an exemption see United States v. American Trucking Associations, Richardson v. James Gibbons Co., Robbins v. Zabarsky, all supra; (4) if the Commission has the power and either the Commission has exercised it, or there is no need that it should before § 13(b) applies, does § 13(b) give an exemption for a whole week if the employee was during a substantial part (or as in the case at bar, the greater part), of that week engaged in duties not connected with safety of operation but was "engaged in commerce or in the production of goods for commerce"; See Wage and Hour Administration Bulletin No. 9, as amended, ¶ 5(c) and ¶ 5 note 6; Anuchick v. Transamerican Freight Lines, Inc., D.C.E.D. Mich., 46 F.Supp. 861, 865; McKeown v. Southern California Freight Forwarders et al., D.C.S.D.Cal. March 31, 1943, 49 F. Supp. 543; Lewis v. Nailling, D.C.W.D. Tenn., 36 F.Supp. 187. Compare the last paragraph of Walling v. Jacksonville Paper Co., January 18, 1943, 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. ___. Compare the somewhat analogous problems raised by Wage and Hour Administration, Regulations §§ 541.1F; 541.3(4); 541.4(B); 541.5(B); Report and Recommendations of Presiding Officer in the Matter of Proposed Amendments to Part 541 of Regulations, Oct. 10, 1940, §§ VI and VIII, C.C. H. Labor Law Service ¶¶ 31,302.22; 31,302.23; 31,302.24; 31,302.63; and (5) if § 13(b) does give an exemption to an employee who divides his work between commerce involving safety of operation and commerce not involving safety of operation, is the exemption for the work week or for some shorter or longer time (such as the hour or the month) during which the employee is engaged in activities affecting the safety of operations?

4. It is unnecessary for present proposes to resolve all these issues. Let it be assumed arguendo that the Interstate Commerce Commission has power to regulate the hours of an employee who is one-third of the time a driver and loader and two-thirds of the time a washer; and that the Commission has actually exercised the power. Let it also be assumed that in accordance with the letter of § 13(b) of the Fair Labor Standards Act (and in defiance of what seems its intent) when an employee is subject to the Motor Carrier Act on account of one-third of his activities he is not on the basis of the other two-thirds subject to the hours provisions of the Fair Labor Standards Act. Even on those assumptions, I am of the opinion that the exemption is on a...