Roth v. Lake County Ready-Mix Co.

• Decision Date: 10 February 1954
• Docket Number: Gen. No. 10710,READY-MIX
• Citation: Roth v. Lake County Ready-Mix Co., 117 N.E.2d 588, 1 Ill.App.2d 288 (Ill. App. 1954)
• Parties: , 25 Lab.Cas. P 68,187 ROTH v. LAKE COUNTYCO., Inc.
• Court: Appellate Court of Illinois

Page 588

117 N.E.2d 588

1 Ill.App.2d 288, 25 Lab.Cas. P 68,187

ROTH v. LAKE COUNTY READY-MIX CO., Inc.

Gen. No. 10710.

Appellate Court of Illinois, Second District.

Feb. 10, 1954.

Frank M. Daly, Waukegan, for appellant.

McClory & Bairstow, Waukegan, for appellee.

DOVE, Justice.

Fred Roth brought this action to recover overtime compensation, an equal amount as liquidated damages, and attorney fees under the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 207. The issues made by the pleadings were submitted to the trial court for determination resulting in a judgment in favor of the plaintiff and against the defendant for $990.56 and costs. To reverse that judgment, defendant appeals.

The record discloses that appellant is engaged in the ready-mixed concrete business having two plants, one on Skokie Highway in Lake County and another at Crystal Lake. At these plants the concrete is mixed, poured into trucks, and delivered to various jobs to be used in the construction of buildings, roads, and other purposes. At the peak of the season appellant employs between thirty and thirty-five persons as drivers of trucks and laborers in unloading sand and stone from cars and in operating conveyors which convey material to the mixing tower. On April 8, 1951, appellee entered the employment of appellant and continued to work for it until November 10, 1951. For the first eight weeks of his employment he received $1.85 per hour and the balance of the time appellant paid him $2 per hour. During this period of time appellant supplied its product of ready-mixed concrete to the E. A. Meyer Construction Company, which was engaged at that time in widening Skokie Highway near Waukegan and in erecting a concrete overpass over Route 176 on U. S. Route No. 12. The concrete for these purposes was delivered from both of appellant's plants, and appellee worked at both of these places. The overpass was a part of U. S. Route No. 12, which is an interstate highway. During the period of his employment appellee worked more than 400 hours overtime and received therefor his regular pay of either $1.85 per hour or $2 per hour.

The complaint alleged the employment of the plaintiff and averred that during the entire period of employment the defendant was subject to the terms and provisions of the Fair Labor Standards Act, being Sec. 207 of Chapter 8 of Title 29 U.S.C.A., which provides, in part, that the plaintiff shall be entitled to receive compensation for his employment in excess of 40 hours per week at the rate of not less than one and one-half the regular rate at which he was employed. The complaint then charged that the defendant failed and refused to comply with the provisions of the Federal Act and, in so doing, became liable to pay overtime compensation at the rate of one and one-half times the regular rate and, in addition, an equal amount as liquidated damages, as provided by said Act. The complaint then alleged that notwithstanding the violation of the Federal Act by the defendant and numerous demands by the plaintiff to the defendant to compensate the plaintiff as provided in the act, the defendant failed or refused to pay the same or any part thereof to the damage of the plaintiff in the sum of $1,000.

By its answer, the defendant admitted the employment of the plaintiff as alleged but denied that it was subject to the terms of the Fair Labor Standards Act and alleged that the plaintiff agreed to accept straight time for all hours worked by him for the defendant and averred that it did not become liable to pay overtime compensation or liquidated damages and denied that it was guilty of any violation of any Federal Act. A reply to the defendant's answer was filed by the plaintiff in which he averred that he did not enter into any contract or agreement with the defendant to waive the provisions of the Statute and alleged that he did not agree to accept straight time for all hours worked in the employ of the defendant.

The issues made by the pleadings were submitted to the court for determination and at the conclusion of the hearing the court found that the plaintiff was employed by the defendant and engaged in performing a part of the process of the production of ready-mixed concrete which was used in the construction of a bridge on U. S. Highway No. 12 and in widening Skokie Highway; that U. S. Highway No. 12 is an interstate highway carrying interstate traffic between Illinois and Wisconsin, and Skokie Highway is also in interstate highway running between the northern part of Illinois and Wisconsin carrying traffic between these two states; that the plaintiff, an employee of the defendant, was engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act and is entitled to receive one and one-half times his regular pay for each hour worked in excess of 40 hours per week amounting to $395.28 and under the law, plaintiff was also entitled to recover an additional amount of $395.28 as liquidated damages, together with attorney fees of $200, making a total of $990.56.

Appellant insists that the evidence in this case discloses only two isolated sales of concrete, one from its Crystal Lake plant to the Meyer Construction Company for the bridge on U. S. Route No. 12 and the other for widening Skokie Highway. Counsel argue that appellant's business is not the production of goods for commerce within the meaning of the Federal Act but that it is engaged in the production of a concrete mix, which, by its very nature, hardens within a short period of time and that its business is therefore essentially local and limited to a given area.

Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, was an action by the Wage and Hour Administrator to enjoin Alstate Construction Company from violating the record-keeping provisions and overtime pay required by the Fair Labor Standards Act. It appeared that the Construction Company was a Pennsylvania road contractor that reconstructs and repairs roads, railroads, parkways and like facilities, in the state of Pennsylvania. It also manufactures a bituminous concrete road surfacing mixture called amesite made from materials either bought or quarried in Pennsylvania and applied largely to Pennsylvania roads either by the Construction Company's employees or by its customers. The District Court, Tobin v. Alstate Const. Co., 95 F.Supp. 585, granted the injunction and the Court of Appeals for the Third Circuit, 195 F.2d 577, affirmed that decree and held that all of the Construction Company's employees were covered by the act. In affirming that judgment the Supreme Court of the United States cited and commented upon Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, and Pedersen v. J. F. Fitzgerald Construction Co., 318 U.S. 740, 742, 63 S.Ct. 558, 87 L.Ed. 1119, and, in the course of its opinion, said [345 U.S. 13, 73 S.Ct. 567]: 'In...