Muldowney v. Seaberg Elevator Co., 1701.

• Decision Date: 04 June 1941
• Docket Number: No. 1701.,1701.
• Citation: 39 F. Supp. 275
• Parties: MULDOWNEY v. SEABERG ELEVATOR CO., Inc.
• Court: U.S. District Court — Eastern District of New York

39 F. Supp. 275

MULDOWNEY v. SEABERG ELEVATOR CO., Inc.

No. 1701.

District Court, E. D. New York.

June 4, 1941.

COPYRIGHT MATERIAL OMITTED

August Zolotorofe, of Brooklyn, N.Y., for plaintiff.

William Walzer, of New York City, (Raymond Gitlin, of New York City, of counsel), for defendant.

CAMPBELL, District Judge.

On stipulation by and between the attorneys for the respective parties this case was tried before the Court without a jury.

This is an action brought by the plaintiff under the "Fair Labor Standards Act of 1938". Act of June 25th, 1938, c. 676, §§ 1-19, 52 Stat. 1060-1069, title 29, §§ 201-219, U.S.C.A.

The defendant is a domestic corporation having its principal and sole place of business in the Borough of Brooklyn, City and State of New York.

During the entire period involved herein the defendant was engaged in the business of manufacturing and installing new elevators, manufacturing parts, servicing and maintaining elevators and repairing elevators and dumb-waiters.

During the period here in question all of the elevators manufactured and installed by the defendant were without exception manufactured by it at its plant in the City and State of New York, and all were sold by it in the City and State of New York to property owners having buildings in the City and State of New York, and each of such elevators was installed and permanently affixed to the land and buildings in the State of New York belonging to such purchasers who since such installations, continued to use and operate such elevators within the City and State of New York.

The total business represented by such new installations for the period here in question was $335,469.

During the period here in question the defendant maintained a separate division or department at its plant, which was devoted to maintenance, service and repair work.

The maintenance, service and repair department was separate and distinct from the manufacturing and installation department in that it had a separate staff of workmen operating under a wage scale different from that of the installation department, with a separate foreman, separate superintendent and separate storage space for its maintenance and repair parts.

The maintenance, service and repair department performed its work under annual written contracts with builders calling for complete service, maintenance and repair of elevators, including inspection, replacement and repair of all of its parts. That department also rendered inspection, adjustment and repair service upon elevators to persons not under service and maintenance contracts, with the defendant, and who requested or required such inspection, adjustment and repairs.

During the period here in question, the total business done by the service, maintenance and repair department under regular maintenance contracts aforementioned affected 201 buildings covered by 201 contracts and involving approximately 318 elevators. Each and every building and elevator covered by such maintenance contracts was without exception situated in the City and State of New York. The total amount of the service and maintenance business under such contracts, during the period in question was $99,937.50.

The service, maintenance and repair department rendered services such as adjustment and repairs on elevators upon orders and arrangements other than the maintenance contracts aforesaid. During the period here in question, this department rendered such adjustment and repair service upon elevators within the City and State of New York in the sum of $46,655.

During the period in question the service, maintenance and repair department of defendant was called upon to make repairs upon elevators situated outside of the State of New York. These repairs were in the total sum of $1,012 not counting pennies.

The repairs done outside of the State of New York are made up of the following: labor and services $226; material originating at defendant's plant $172; material not originating at defendant's plant $122 and mark-up or profit $492.

The total of all business done by the defendant covering all of its departments for the period in question amounted to $484,290.70.

The out of State repairs amounting to $1,012 represents 3/5 of 1% of the total business done by the maintenance, service and repair department.

The defendant's elevators were manufactured and assembled by it from various materials and parts such as metals, castings, rails, cables, motors, controllers, structural steel, lumber, electrical material, paints, varnish, brass, bronze, bearings, springs and elevator doors.

The total purchases made by the defendant of all types of materials going into its manufactured product for use on new elevators, and in the maintenance and repair department for the period in question amounted to $254,563.34.

$54,573.75 that is 21.5% of the total sum expended for purchases represents purchases made of materials from companies outside of the State of New York.

Defendant, in or about January, 1939, entered into possession under a contract to purchase, and subsequently acquired title to the premises #243, 44th Street, Brooklyn, New York, which on obtaining possession it immediately proceeded to clean and repair, making it suitable for the removal to it of defendant's business.

Plaintiff was hired about January 30th, 1939, by the defendant to help clean such newly acquired premises and to sleep therein pending alterations.

The alterations of such premises continued from January 30th, 1939, to about April 15th, 1939, when the carpentry department in defendant's plant commenced work therein.

Between January 30th, 1939, and about April 15th, 1939, no manufacturing, repairs, or other of defendant's business was done at or through, the buildings #243, 44th Street, Brooklyn, New York.

The plaintiff, during that period performed services such as cleaning, and removing debris; assisting painters who were not members of defendant's regular staff, but who were hired especially for the purpose of making the alterations, and plaintiff, during that period at request of defendant slept in the premises.

Commencing about April 15th, 1939, defendant's plant was moved over to the buildings at #243, 44th Street, Brooklyn, New York, where from about such date it proceeded to do its regular and usual business.

The plaintiff, after the removal of the defendant's plant, was taken on as a regular employee of the defendant, and assigned to perform the duties of a porter, and was required to sleep at the premises. As a porter he was obliged to and did sweep and clean the plant, the offices, the sidewalks, open and close windows and doors, run errands, prepare coffee, wash the coffee cups and saucers, and do minor chores at the homes of some of the officers of defendant; he also assisted in the removal of light materials from defendant's truck, occasionally painted iron girders, brackets and machinery, cleaned up the crating material and other debris after motors and other equipment were delivered and unloaded.

The plaintiff was not a mechanic and, throughout the period involved, did not and was not suffered or permitted to render any services in connection with the repairs or maintenance work upon any elevators, either in or outside of the State of New York.

The hiring was at a wage of $25 per week during the whole period of plaintiff's employment and the hours of overtime changed as the maximum hours of labor changed as provided by law.

There is a conflict between the plaintiff's claimed hours of labor, and that shown by the evidence, which I will analyze later in this opinion, but it may well be noted here that the plaintiff's claimed number of hours that he worked for defendant is in my opinion so exaggerated as to greatly weaken the weight of his evidence on that subject.

In a seven-day week of twenty-four hours a day there is a total of 168 hours.

Deduct from that only the time off, as testified by plaintiff, from 8 o'clock A.M. Sunday, to 8:30 P.M. 14½ hours; from 12 o'clock noon Wednesday to 3:30 A.M. Thursday 15½ hours; and meal time of ½ hour each for breakfast and lunch and 1½ hours for supper, eliminating lunch and supper on Wednesday when he was off, and all three meals on Sunday when he was off, we have a total of time for meals of 13 hours, which with the 14½ off on Sunday, and the 15½ hours off on Wednesday-Thursday makes 43 hours and leaves from the total hours per week of 168 hours but 125 hours for working, sleeping and various other things, whereas the plaintiff claims as his hours of labor 130 hours per week for each week employed by the defendant with the exception of four weeks in which he claims as his hours of labor 121 hours per week.

Whatever may be said as to plaintiff's services to the defendant after April 15th, 1939, the services rendered by the plaintiff between January 30th, 1939, and April 15th, 1939, cannot be brought under the "Fair Labor Standards Act of 1938", supra, as the plaintiff was clearly not engaged "in commerce or in the production of goods for commerce", 29 U.S.C.A. § 202; but was temporarily employed, not in the operation of defendant's plant, but to assist by cleaning a building, in which no part of defendant's plant was located, that was being remodeled and prepared for occupation by defendant, by carpenters and painters, who were not employees of the defendant in its plant, but engaged solely for and in remodeling and making such repairs to such building.

We will now consider the plaintiff's claim for services subsequent to his becoming a regular employee of the defendant at its plant #243, 44th Street, Brooklyn, New York, on April 15th, 1939, to which place it had been removed.

So much of Sections 6 and 7 of the "Fair Labor Standards Act of 1938" supra, Title 29, Secs. 206, 207, U.S.C.A., as is necessary for consideration at this time reads as follows:

"Sec. 6 § 206. (a) Every employer shall pay to each of his employees who is...