Marshall v. Brunner

• Decision Date: 09 October 1980
• Docket Number: Civ. A. No. 77-624.
• Citation: 500 F. Supp. 116
• Parties: Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. Ruth A. BRUNNER, Executrix of the Estate of Robert Brunner, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

500 F. Supp. 116

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. Ruth A. BRUNNER, Executrix of the Estate of Robert Brunner, Defendant.

Civ. A. No. 77-624.

United States District Court, W. D. Pennsylvania.

October 9, 1980.

COPYRIGHT MATERIAL OMITTED

Marshall H. Harris, Regional Sol., U. S. Dept. of Labor, Philadelphia, Pa. (Working in conjunction with the regional solicitor was: Joan R. Sheak and Kenneth L. Stein, Philadelphia, Pa.), for plaintiff.

Richard F. Kronz, Wendell G. Freeland, Pittsburgh, Pa., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

SIMMONS, District Judge.

Findings of Fact

1. Plaintiff, the Secretary of Labor, United States Department of Labor, brought this action to enjoin the former defendant, Robert H. Brunner, from violating the provisions of Sections 6, 7, 11(c), 12(c), 15(a)(2), 15(a)(4) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (hereinafter referred to as the Act).

2. During the pendency of this action, John H. Brunner died on May 14, 1980, and pursuant to F.R.C.P. Ruth A. Brunner, his wife, qualified as executrix of Robert H. Brunner's estate and was substituted as the new defendant in this case.

3. Decedent, Robert H. Brunner was at all times relevant to this action, the sole proprietor of a place of business located at 370 Rochester Road, Pittsburgh, Allegheny County, Pennsylvania. Defendant's Answer at 1.

4. Decedent, Robert H. Brunner, was at all times relevant to this action, engaged in the collection and disposal of garbage, trash and junk, trading and doing business as R. H. Brunner Sanitation Company. Defendant's Answer at 1. Decedent hired employees, set their rates of pay, and assigned job duties to each of them. Transcript, Volume II at 196.

5. The business activities of decedent's garbage, trash and junk collection and disposal operation are related and performed through unified operation or common control for a common business purpose. Defendant's Answer at 1.

6. The annual gross volume of sales made or business done by decedent at all times relevant to this action exceeded the amount of $250,000.00. Transcript, Volume I at 25.

7. At all times relevant to this action, decedent's employees have handled and worked on goods and materials that were moved in or produced for commerce. Specifically, the parties stipulated that decedent purchased, on a regular and recurring basis, the following items for use in the operation of his business: trucks and truck bodies, tires, batteries and accessories, sixty gallon containers, shovels, brooms, oil and gas. Transcript, Volume I at 23-25. It was further stipulated that at least some of these items have been manufactured outside of Pennsylvania, and had moved in interstate commerce prior to decedent's purchase thereof. Transcript, Volume I at 23-25; Volume III at 80-81, 87.

8. At all times relevant to this action, many of decedent's employees regularly collected, handled, loaded, transported and unloaded such goods as discarded automobile parts, metal household appliances, hot water tanks, and other scrap metal and junk. These goods were collected by decedent's employees during the course of their participation in township rubbish cleanups. Transcript, Volume II at 187-190, 225, 235-237, 270-274; Volume III at 156-158; Volume IV at 205-210, 218, 320-322; Volume VII at 791, 798.

9. Decedent's employees delivered the discarded automobile parts, metal household appliances, hot water tanks, and other scrap metal and junk to scrap metal dealers. Said scrap metal dealers sold this scrap metal and other discarded junk to manufacturers outside of Pennsylvania, who ultimately processed said scrap into auto parts, appliances, and other products. Transcript, Volume IV at 206.

10. In the course of his business operations, decedent employed truck drivers and helpers who are paid a flat daily rate of pay. The amount of said daily rate of pay varies from employee to employee and ranged, during the time period relevant to this action, from $20.00 per day to $50.00 per day.

11. The truck drivers and helpers were paid the same daily rate regardless of the number of hours they worked.

12. Decedent paid certain of his employees on an hourly basis. Transcript, Volume III at 85. Decedent paid his hourly employees for forty hours per week only, although said employees worked longer than 40 hours. Transcript, Volume III at 87-92.

13. The truck drivers and helpers employed by decedent regularly worked between 10 and 12 hours per day, and sometimes longer. Transcript, Volume I at 59-60, 69-74; Volume II at 218, 220-222, 224, 226-232, 268, 279-280; Volume III at 129-130, 132-135; Volume IV at 215-217, 222-226, 322, 329-337, 384; Volume V at 392-395, 423-425, 427-432; Volume VII at 694-697, 700-704, 783, 785-789, 828-831, 834-840.

14. Some of decedent's employees worked on Saturdays, making theirs a six day workweek. Transcript, Volume I at 71-74; Volume II at 229, 231; Volume III at 89, 133-134; Volume IV at 222-224, 226, 329-337; Volume V at 430; Volume VII at 701, 787, 804-806, 834-835.

15. Decedent did not pay some of his employees any wages for their Saturday work. Other employees were paid for their Saturday work at rates lower than their weekday daily rate of pay. Transcript, Volume II at 231; Volume IV at 225; Volume V at 430; Volume VII at 835.

16. Decedent kept no records of the hours worked by his employees on Saturdays, nor did he keep records of any wages paid for Saturday work. The Saturday wages, when paid, were not included in the weekly cash payment to the employee. Transcript, Volume II at 232; Volume IV at 315-316; Volume VII at 787; Plaintiff's Exhibits 4, 20, 27.

17. On an average, decedent's employees worked 60 hours per week in a five day week, and 68 hours per week in a six day week. Transcript, Volume I at 59-60, 69-74, 81-82; Volume II at 218, 220-222, 224, 226-232, 237-238, 268, 279-280, 282-283; Volume III at 87-92, 129-130, 132-135, 158, 162, 173, 179; Volume IV at 215-217, 222-226, 229, 322, 329-337, 339-340, 355, 357, 384; Volume V at 392-395, 397-398, 409, 423-425, 427-432, 434-435; Volume VII at 694-697, 700-705, 722-725, 783, 785-789, 828-831, 834-840. The rates paid to many of decedent's employees were insufficient to yield the minimum wage for all hours worked per week.

18. All of decedent's drivers and many of decedent's helpers went to Mazzaro's or Bailey's Dump at least once during the workday. Transcript, Volume II at 197.

19. Decedent never instructed his helpers that they should not go to the dump. Many of the helpers who went to the dump performed work there, made additional trash pickups on the return trip from the dump to decedent's establishment, and performed additional duties upon their return to the establishment. Decedent was aware of this. Transcript, Volume II at 278-279, 298-302, 305-307, 312, 317, 370-371; Volume III at 169-173, 183; Volume IV at 220-222, 329; Volume V at 394, 404-405, 414-415, 420, 426, 438, 453; Volume VII at 765; Volume VIII at 927.

20. When decedent's employees arrived at Mazzaro's Dump, they signed an invoice or "dump slip", on which the time of their arrival was indicated. These dump slips corroborate the employees's testimony as to their lengthy hours of work, since they show arrival times after 3:00 o'clock, P.M. 4:00 o'clock, P.M. and 5:00 o'clock, P.M., as well as Saturdays. The return trip from Mazzaro's to the decedent's garage took approximately 45 minutes to an additional hour. Transcript, Volume I at 27-28, 63-65, 109, 117; Volume IV at 232; Volume VII at 729-730; Volume XIV at 1680-1681; Volume XV at 1801, 1803, 1874-1876; Plaintiff's Exhibits 3, 23, 24 and 34.

21. Decedent did not pay any of his employees time and one-half their regular rate of pay for said employees' weekly hours worked in excess of forty. Transcript, Volume I at 74; Volume II at 232-233, 280-281; Volume III at 92, 135; Volume IV at 229, 337, 384; Volume V at 395, 432; Volume VII at 703, 789, 840. Decedent does not contend that any overtime rates were paid. Transcript, Volume VIII at 912.

22. Prior to January 1977, decedent kept no records of hours worked per day and/or per week by any of his employees. Transcript, Volume I at 14-18; Volume VIII at 907.

23. In January 1977, after the close of the investigation of decedent business by the Wage and Hour Division of the United States Department of Labor, decedent began to keep a series of inaccurate time cards recording hours worked by his employees. Said time cards did not reflect the lengthy hours worked by decedent's employees. These cards, which decedent continued to maintain throughout 1977, 1978 and 1979, to date of the trial, were filled in by decedent's wife, and employees were instructed that if they did not sign these cards, they would not receive their pay. Transcript, Volume I at 27, 75-79; Volume III at 94-97, 136-138; Volume IV at 226-228, 337-338; Volume VIII at 911-912.

24. When decedent begain keeping the inaccurate time cards referred to in Finding of Fact 22, supra, decedent had been advised by Wage and Hour officials as well as his own counsel, of the recordkeeping requirements of the Act, and the importance of complying with them. Transcript, Volume VI at 528; Plaintiff's Exhibit 16.

25. Decedent employed several persons under the age of eighteen as helpers, both during and after the investigation of his business by the Wage and Hour Division of the United States Department of Labor. Transcript, Volume I at 20, 26-27; Volume II at 198-199; Volume IV at 229-232.

26. Decedent continued to employ minors, under 16, in the operation of his business after he had been advised by the Department of Labor officials, as well as by his own counsel, that doing so violated the Act and the Child Labor Regulations. Transcript, Volume IV at 229-232; Volume VI at 528-529; Plaintiff's Exhibit 16.

27. Both during and after...