Mitchell v. Stewart Brothers Construction Company

• Decision Date: 25 March 1960
• Docket Number: 0465.,Civ. No. 0464
• Citation: 184 F. Supp. 886
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff v. STEWART BROTHERS CONSTRUCTION COMPANY, a corporation, George Abel, Donald A. Stewart and Roger T. Stewart, Defendants (two cases).
• Court: U.S. District Court — District of Nebraska

184 F. Supp. 886

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff v. STEWART BROTHERS CONSTRUCTION COMPANY, a corporation, George Abel, Donald A. Stewart and Roger T. Stewart, Defendants (two cases).

Civ. Nos. 0464, 0465.

United States District Court D. Nebraska.

March 25, 1960.

Harper Barnes, John Weiss and Gerald Z. Rossow, Attorneys, Office of the Solicitor, United States Department of Labor, Kansas City, Mo., for plaintiff.

John W. Stewart, Lincoln, Neb., Stewart, Stewart & Calkins, Lincoln, Neb., for defendants.

VAN PELT, Judge.

The Actions

The Secretary of Labor, James P. Mitchell, has brought two suits against Stewart Construction Company, and Donald and Roger Stewart as individuals, under the Fair Labor Standards Act. George Abel was originally named as defendant but was dismissed at the close of plaintiff's case.

Action 0464 is an action to recover alleged unpaid minimum wages and unpaid overtime compensation claimed to be due to one Floyd A. Sanders, an employee who is alleged to have filed a written request for the Secretary to bring this action.

Action 0465 is an action for equitable relief. It is alleged that the defendants are (a) failing to pay minimum wages, (b) failing to pay overtime rates, and (c) failing to keep adequate books and records. By supplemental complaint it is also alleged that Floyd A. Sanders has been discriminatorily discharged. It is prayed that the defendants be enjoined from failing to pay minimum wages and overtime and also from failing to keep adequate and accurate books and records. The supplemental complaint requests that Sanders be reinstated, be reimbursed for lost wages, and be granted such further relief as may be necessary and appropriate.

It should be noted that the Secretary does not claim that the wage for paid time is less than $1 per hour—in fact it is well in excess of that amount. Nor is it claimed that the defendants pay less than one and one-half times the regular wage rate for paid work in excess of forty hours per week.

The heart of the claim is that the defendants work their employees early and late—that is, before paid time starts and after paid time ends. It is claimed that time spent by employees before the recorded starting hour and after the recorded quitting time is not paid for at all. It is for this time that the plaintiff claims that less than $1 per hour (i. e. nothing) is paid, and again claims that less than one and one-half the regular rate (again nothing) is paid for such overtime in weeks when the employees worked in excess of forty hours. The claimed failure to record and pay for such early and late work is also the basis of the claim that defendants failed to keep adequate and accurate books and records.

As to the supplementary complaint, it is simply claimed that Sanders was discharged because of his activity in the instigation of a Wage and Hour investigation of the defendants, and for his part in these suits.

Fair Labor Standards Act

The Fair Labor Standards Act requires an employer to pay to each of his employees "engaged in commerce" not less than $1 an hour. 29 U.S.C.A. § 206 (Supp.1958) As far as material here, the minimum wage prior to March 1, 1956 was 75¢ per hour. It is forbidden to employ such employees for a work week in excess of forty hours unless the employee is compensated for the time exceeding forty hours "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S. C.A. § 207(a)(1956). Employers are also required to keep records of the wages and hours of employees. Id. § 211 (c).

It is unlawful to violate the minimum wage or overtime pay provisions of the act, or to violate the record-keeping requirements. Id. § 215(a)(2), (5). As to Sanders' discharge, it is unlawful:

"(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, * * *". (Ibid.)

The Secretary of Labor is authorized and directed to bring actions to restrain violations of this act. Id. § 211(a). The district courts are given jurisdiction to restrain such violations. Id. § 217 (Supp.1958). The question of whether money damages may be awarded in a suit to restrain violation of the prohibition against discriminatory discharge will be discussed infra.

When an allegedly aggrieved employee files a written request, claiming unpaid minimum wages or unpaid overtime compensation, the Secretary is authorized to bring an action to recover the amount of the claim. Id. § 216(c) (1956). The district courts have jurisdiction over such suits. Title 28 U.S.C.A. §§ 1337, 1345 (1950).

Pursuant to Rule 42, 28 U.S.C.A., the Court ordered the two cases consolidated for trial because they involved common questions of law and fact. The cases were tried to the Court, briefs were filed, and argument heard. Thereafter, plaintiff filed a motion to reopen the case and introduce testimony relative to the written demand made by Sanders for the bringing of this action.

Commerce

The above provisions relate to those employees who are "engaged in commerce or in the production of goods for commerce." "Commerce" is defined as: "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." Id. § 203(b) (1956).

In the case at bar, the defendants' business is that of road construction, and the employees concerned are those who were engaged in road construction work. They were not producing goods, so the question is whether their road work was "in commerce."

There can be no question but that the work involved in these cases was on roads which are used as instrumentalities of interstate commerce. It is clear that U. S. Highway 83 from McCook to north of North Platte is a well-traveled main interstate highway. The same is true of U. S. Highway 283 between Elwood and Lexington. This Judge was raised in that area, and could, were it necessary, take judicial notice of the interstate character of these roads. The Court mentions number 83 because of the abundance of testimony regarding that work, and mentions number 283 because that is the job from which Sanders was discharged. The Court believes and finds that the work on other roads brought out in the evidence was also done on roads which were instrumentalities of interstate commerce. Considering the integrated road system and great mobility of motor vehicles of today, it would be difficult to find a road which is well-traveled at all, that would not be deemed an instrumentality of interstate commerce.

It must be clear that a person working on an interstate road is "engaged in commerce." As stated in Overstreet v. North Shore Corp., 1943, 318 U.S. 125, 129, 63 S.Ct. 494, 497, 87 L.Ed. 656:

"Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce * * *. Those persons who are engaged in maintaining and repairing such facilities should be considered as `engaged in commerce'. * * * because without their services these instrumentalities would not be open to the passage of goods and persons across state lines." (Emphasis supplied.)

In this case the work involved reworking of existing roads. While in some places a new road-bed may have been constructed and the old bed abandoned, such work is within the act. The cases of Mitchell v. C. W. Vollmer & Co., Inc., 1955, 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196, and Chambers Construction Company v. Mitchell, 8 Cir., 1956, 233 F.2d 717, clearly state that such an alternate route to supplement or supersede existing interstate transportation facilities does not fall within the prohibition of "new construction". Indeed there is good reason to believe that the "new construction" doctrine has been completely eliminated, but that question is not before the Court. See, Southern Pacific Co. v. Gileo, 1956, 351 U.S. 493, 76 S.Ct. 952, 100 L.Ed. 1357; Mitchell v. Lublin, McGaughy, & Associates, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243.

Employers

These cases were directed against Stewart Construction Company, a corporation, George Abel, Donald A. Stewart and Roger T. Stewart. The reason for naming these officers of the corporation as well as the corporate entity as defendants is because of the definition of "employer" found in the act. Title 29 U.S.C.A. § 203(d)(1950) provides:

"`Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee * * *."

Thus, corporate officers or managers who actively regulate the employees are covered by the act and are liable as employers. Chambers Construction Company v. Mitchell, 8 Cir., 1956, 233 F.2d 717; Hertz Drivurself Stations, Inc. v. United States, 8 Cir., 1945, 150 F.2d 923; Mitchell v. L. W. Foster Sportswear Company Inc., D.C.Pa.1957, 149 F.Supp. 380.

The facts of the case clearly demonstrated that both Donald and Roger Stewart actively supervised and regulated the employees. As to George Abel, however, there was no proof by plaintiff of any direct or indirect action on his part in relation to the employees of Stewart Construction Company, and on motion of defendants' counsel prior to defendants introducing testimony, George Abel was dismissed.

Unpaid Time

The business of the defendants was that of doing the basic dirt work in preparing roadbeds. This involves cutting and grading down high spots, filling low places, setting up a proper grade, etc. The employees operated heavy Diesel-powered road equipment.

The policy of the defendants was to be "in operation" by 7 o'clock A.M. In order that...