Tobin v. Alstate Const. Co.
| Decision Date | 23 February 1951 |
| Docket Number | Civ. No. 3189. |
| Citation | 95 F. Supp. 585 |
| Parties | TOBIN, Secretary, Department of Labor, v. ALSTATE CONST. CO. |
| Court | U.S. District Court — Middle District of Pennsylvania |
William S. Tyson, Solicitor, Jeter S. Ray, Associate Solicitor, and John J. Babe, Assistant Solicitor, U. S. Department of Labor, all of Washington, D. C., Ernest N. Votaw, Regional Atty., Louis Weiner, Senior Atty., U. S. Department of Labor, Philadelphia, Pa., Arthur A. Maguire, U. S. Atty., Scranton, Pa., for plaintiff.
McNees, Wallace & Nurick, Harrisburg, Pa., for defendant.
This action was brought by William R. McComb, Administrator of the Wage and Hour Division, United States Department of Labor, plaintiff, under the Fair Labor Standards Act of 1938, Act of June 25, 1938, c. 676, 52 Stat. 1060, 29 U.S.C.A. § 201, et seq. to enjoin defendant, Alstate Construction Company, a Pennsylvania corporation, from violating the provisions of Sections 15(a)(2) and 15(a)(5) of the Act, 29 U.S.C.A. § 215(a)(2, 5). Subsequently, by Stipulation, Maurice J. Tobin, Secretary of the United States Department of Labor, was substituted as party plaintiff.
The facts of the case are contained in a Stipulation and Supplemental Stipulations of Facts, further supplemented by certain additional testimony taken in open court by the plaintiff, all of which may be summarized and condensed as follows:
Defendant is engaged in the production, sale, distribution and further application of a bituminous concrete material, known as amesite. Its operations are wholly in Pennsylvania, where its material is processed at its three separate plants, namely, Hanover in Adams County, Cressona in Schuylkill County, and Naginey in Mifflin County.
Amesite consists of the following ingredients, limestone, naptha, asphalt filler and lime, all of which is quarried or manufactured and purchased in Pennsylvania with the exception that about eight thousand gallons of asphalt are received from a refinery in Baltimore, Maryland, and pumped from railroad tank cars into defendant's storage tanks each week at the Hanover plant. The operation of receiving, handling and pumping the asphalt takes from four to five hours and is performed by any employee available at the time.
The said bituminous concrete materials, known also as HE, a cold mix, and ID2, a hot mix, otherwise known as macadam blacktop, are primarily marketed by defendant as follows:
(1) Contracts with the Commonwealth of Pennsylvania and many of its political subdivisions, for the sale of material and for material and labor for constructing, reconstructing, resurfacing or repairing highways, roads, and streets connecting with such highways, all of which are accessible to and regularly used by general vehicular traffic, including traffic moving between points in Pennsylvania and points in other states.
(2) Contracts with interstate railroad companies, commercial and industrial firms engaged in the production of goods for commerce for sale of material and for material and labor to be used in the construction, reconstruction, repair or maintenance of roads, railroad crossings, parking areas and other facilities of such firms.
(3) Contracts with private persons and others having no interstate activity and not engaged in interstate commerce or the production of goods for commerce, for sale of material and for material and labor to be used in construction, reconstruction, repair and maintenance of road surface.
The period covered by the inspection was from June 30, 1945, through June 30, 1948. For this period the total volume of business done by defendant was $1,172,276.70, as follows:
Cressona Plant, Total volume $643,334.84 distributed as follows:
Pennsylvania Department of
Highways 53.96% or $347,177.55
Townships 9.99% or 64,327.68
Boroughs 3.32% or 21,362.45
Industrial 13.23% or 85,135.69
Railroads 2.20% or 14,154.80
Private 17.28% or 111,176.67
Naginey Plant, Total volume $237,991.99 distributed as follows:
Pennsylvania Department of
Highways 33.25% or $79,154.63
Townships 9.76% or 23,232.06
Boroughs 22.56% or 53,710.41
Industrial 13.79% or 32,834.43
Railroads .92% or 2,205.75
Private 19.68% or 46,854.71
Hanover Plant, Total volume $290,949.87 distributed as follows:
Pennsylvania Department of
Highways 76.95% or $223,904.12
Townships 1.12% or 3,284.06
Boroughs 3.04% or 8,872.97
Industrial 13.29% or 38,692.18
Railroads 1.56% or 4,566.62
Private 3.99% or 11,629.92
Defendant employs various classes of employees in its three plants and main office, including plant foremen, field foremen, equipment operators, laborers, semi-skilled laborers, truck drivers, mixers, firemen, watchmen, and clerks. Equipment operators are engaged in operating such equipment as spreaders, graders, pavers, shovels, and rollers at times used directly in the work of constructing, repairing, or reconstructing the said highways and roads. Truck drivers are engaged in the following activities:
(1) Haul stone from the Bethlehem, Pennsylvania, quarry to the Hanover plant for use in the production of bituminous concrete materials.
(2) Haul the bituminous concrete materials from the company's Naginey and Cressona plants to the job site.
(3) Haul the bituminous concrete materials from the company's Naginey and Cressona plants to the job sites where the material is dumped into spreaders or pavers on the highway for application thereon.
(4) At the Hanover plant the defendant's truck drivers do some hauling of the bituminous concrete materials from the plant to the job site. Pennsylvania Department of Highways, in some instances, has accepted bids for the said material F.O.B. plant, in which event the material is hauled from the plant to the job site in Pennsylvania Highway Department trucks. For the most part, however, the trucking is performed by contract haulers, hauling from the plant to the job site, at an agreed price per ton, which is paid by the defendant.
Laborers and semi-skilled laborers rake amesite on the highways, spread stone base and perform pick and shovel work on roads. At the plants off-the-road employees, including mixers, firemen, watchmen, and clerks, are engaged in, or perform work incident to, the production of bituminous concrete materials.
Most of the employees of the defendant of the classes above described are regularly employed in excess of forty hours per week without payment of extra compensation at time and one-half of their regular rate for such overtime hours. Wages are paid throughout the year to many of defendant's employees, including months during which defendant's plants do not operate and the employees do not work.
Prior to January 1, 1948, defendant, at its main office and each of its plants, failed to keep proper records as required by Title 29, Chapter V, Code of Federal Regulations, Part 516. Since January 1, 1948, defendant has kept records showing occupation, day and time of beginning of work week, number of hours worked each day, and number of hours worked each week.
There is no segregation of work performed by truck drivers at the Cressona or Naginey plants in the hauling of road mix produced at these plants for use on existing highways, public roads and streets from other hauling work performed by them; nor is there any segregation of work performed by the so-called off-the-road employees employed at the company's three plants engaged in the production of road mix for use on existing highways, public roads and streets from other uses for which...
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