Mitchell v. Sulahian, Civ. A. No. 60-157.

• Decision Date: 07 December 1960
• Docket Number: Civ. A. No. 60-157.
• Citation: 189 F. Supp. 679
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, v. Garabed H. SULAHIAN, d/b/a Novelty Stitching Company.
• Court: U.S. District Court — District of Massachusetts

189 F. Supp. 679

James P. MITCHELL, Secretary of Labor, United States Department of Labor, v. Garabed H. SULAHIAN, d/b/a Novelty Stitching Company.

Civ. A. No. 60-157.

United States District Court D. Massachusetts.

December 7, 1960.

Edward G. Madden, Boston, Mass., for plaintiff.

Gregory H. Adamian, Cambridge, Mass., for defendant.

CAFFREY, District Judge.

This is an action brought by James P. Mitchell, Secretary of Labor, against Garabed H. Sulahian, doing business as Novelty Stitching Company, on behalf of two former employees of defendant, Mrs. Vanoohy Arsenian and Mrs. Beatrice Arena. This action is brought under the Fair Labor Standards Act of 1938 (as amended 29 U.S.C.A. § 201 et seq.). Jurisdiction is based upon 29 U.S.C.A. § 216(c) and upon 28 U.S.C. §§ 1337 and 1345.

The complaint, as filed, charged defendant with failure to compensate use-plaintiffs at a rate not less than one and one-half times the regular rate at which they were employed for employment in excess of forty hours in certain work weeks which allegedly exceeded forty hours.

At the opening of trial counsel stipulated that the plaintiffs abandoned this charge and substituted in lieu thereof a charge of violating Section 6 of the Act, in that it is now alleged that defendant failed to pay the use-plaintiffs the applicable minimum wage of $1 per hour for "homework" performed by the use-plaintiffs for the defendant.

I find that the defendant, Garabed H. Sulahian, sometimes known as Charles Sulahian, was the sole owner and operator of a place of business located at 26 Landsdowne Street, Cambridge, Massachusetts, where, under the name and style of "Novelty Stitching Company," he engaged in the production of novelties, dolls, dolls' clothes, premium articles and related items for interstate commerce. Vanoohy Arsenian was employed by the defendant as a homeworker, stitching dolls and dolls' clothes, between June of 1958 and March of 1959. Beatrice P. Arena was employed by defendant as a homeworker, stitching dolls and dolls' clothes, between August of 1958 and July of 1959. Throughout both periods each use-plaintiff was regularly and customarily employed as a homeworker by defendant, and substantially all of the work produced for the defendant during those periods was for interstate commerce, and was shipped, delivered, transported, offered for transportation, and sold by defendant with the knowledge that shipment, delivery, and transportation thereof in interstate commerce from the Commonwealth of Massachusetts to other States was intended. At all material times defendant was engaged in interstate commerce and in the production of goods for interstate commerce within the meaning of the Act.

I find that Vanoohy Arsenian and Beatrice Arena each filed with plaintiff a written request to bring this action. There is no dispute between the parties as to the amounts of money actually paid to the two plaintiffs during the periods of their employment. Mrs. Arsenian made 15,433 dolls and was paid therefor $771.65 by defendant, i. e., five cents per doll. Mrs. Arena made 8,510 dolls and received $425.50 from defendant, i. e., five cents per doll. The only factual issue remaining is whether or not these payments amounted to a payment to the plaintiffs of at least $1 per hour for the hours they worked, and this, in turn, depends on the number of dolls that plaintiffs actually made per hour.

29 U.S.C.A. § 206(a) provides:

"Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates (1) not less than $1 an hour * * *."

29 U.S.C.A. § 211(d) provides:

"The Administrator is authorized to make such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to prevent the circumvention or evasion of and to safeguard the minimum wage rate prescribed in this chapter * * *."

29 U.S.C.A. § 211(c) provides:

Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order * * *."

Regulation 516, sub-part (a) provides:

"Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each and every employee to whom both Sections 6 and 7(a) of the Act apply * * * (7) hours worked each work day and total hours worked each work week."

Regulation 516.21(b) provides:

"Every employer shall maintain and preserve payroll or other records containing the following information, and data with respect to each and every industrial homeworker employed by him * * * (4) with respect to each lot of work:

* * * * * *

"V. Hours worked in each lot of work turned in.

"VI. Wages paid for each lot of work turned in.

"(5) with respect to each worker:

"I. Hours worked each week."

Regulation 516.21(c) provides:

"In addition to the information and data required in paragraph (b) of this section, a separate handbook * * * shall be kept for each homeworker. The information required therein shall be entered by the employer or the person distributing or collecting homework on

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