United States v. Fiore

• Decision Date: 01 February 1972
• Docket Number: Civ. No. 17712.,Crim. No. 71-208
• Citation: 337 F. Supp. 972
• Parties: UNITED STATES of America v. William FIORE, Individually and d/b/a Flore Trucking and Contracting Company, and as President and General Manager of Diamond Excavating and Hauling Inc.
• Court: U.S. District Court — Eastern District of Pennsylvania

337 F. Supp. 972

UNITED STATES of America v. William FIORE, Individually and d/b/a Flore Trucking and Contracting Company, and as President and General Manager of Diamond Excavating and Hauling Inc.

Crim. No. 71-208, Civ. No. 17712.

United States District Court, W. D. Pennsylvania.

February 1, 1972.

Jay C. Waldman, Asst. U. S. Atty., Pittsburgh, Pa., for the Government.

Edward P. Zemprelli, Clairton, Pa., for defendant.

FINDINGS OF FACT

WILLSON, Senior District Judge.

1. This matter is before the Court upon a Petition and Rule To Show Cause why defendant William Fiore, Individually and d/b/a Fiore Trucking and Contracting Company, and as President and General Manager of Diamond Excavating and Hauling Inc., should not be adjudged in civil and criminal contempt, filed by Richard L. Thornburgh, United States Attorney for the Western District of Pennsylvania and Peter Nash, Solicitor, United States Department of Labor.

2. On March 10, 1959, defendant herein was enjoined by this Court from violating the provisions of Sections 7 and 11 of the Fair Labor Standards Act (52 Stat. 1060, as amended), requiring the payment of proper overtime compensation to employees employed in excess of forty hours in a work week, and further required that appropriate records of wages, hours and other terms and conditions of employment be kept.

3. On April 19, 1962, this Court found the defendant herein in civil contempt of its aforementioned 1959 order and ordered the defendant to pay $1,859.50 in back wages to fifteen then present or former employees; and further, the Court ordered the terms of the 1959 order to be continued and broadened its scope by enjoining the defendant from violating the minimum wage provisions of the Fair Labor Standards Act (29 U.S.C. § 206).

4. On April 29, 1965, this defendant was again brought before this Court and after hearing was adjudged guilty of civil and criminal contempt of this Court's aforementioned orders, was ordered to pay $15,000.00 in back wages, a. $1,000.00 compensatory fine and a $1,000.00 punitive fine, and was further ordered to pay all court costs.

5. A full hearing was held on the instant matter on January 27, 28 and 31, 1972.

6. Defendant has continued to operate under various names and designations as aforesaid.

7. Defendant has engaged in trucking, hauling and providing in-plant services for various producers of goods for interstate commerce, including but not limited to the United States Steel Corporation Edgar Thompson and Clairton Works and the Jones & Laughlin Steel Company Marineway Yards.

8. The defendant's gross annual volume of business since 1968 has been in excess of $500,000.00, and defendant employs two or more employees engaged in commerce or in the production of goods for commerce.

9. For a period commencing on or about September 1, 1968 and continuing through October 1, 1970, defendant wilfully failed to pay his employees for all hours worked in performing truck driving duties between his central garage and the various work sites employees were assigned to, and further, defendant wilfully failed to compensate his employees for hours worked in returning the trucks to the garage from the work sites.

10. For a period commencing on or about September 1, 1968 and continuing through October 1, 1970, defendant wilfully failed to compensate his employees for all hours worked by virtue of the fact that defendant regularly, recurrently and arbitrarily cut back the number of hours employees submitted at the end of each work week.

11. For a period commencing on or about September 1, 1968 and continuing through October 1, 1970, defendant wilfully, regularly and recurrently failed to pay his employees for an average of twelve hours in each work week.

12. The Court credits the testimony of United States Labor Department Comptroller Harold D. McFeely who testified that based on his computations, defendant owes $31,364.57 to seventy-nine of his present and former employees, as is more fully set forth in particularity in Exhibit A.

13. For a period commencing on or about September 1, 1968 and continuing through August 1, 1970, defendant wilfully failed to keep proper records of hours worked by his employees.

14. Defendant has wilfully failed to comply with this Court's previous orders and decrees.

15. The government, through the efforts of Mr. Harold D. McFeely, who spent 200 hours in investigating the violations in this case, was responsible for bringing these latest violations of this Court's orders by defendant to the Court's attention.

16. The Court finds that by virtue of defendant William Fiore's presence in Court on the occasion of the entry of this Court's adjudication of civil and criminal contempt in April, 1965, defendant well knew at all times material hereto the proscriptions this Court had entered upon him and the various business entities through which he did business.

CONCLUSIONS OF LAW

The Court concludes that the findings and the record show by clear and convincing evidence and beyond a reasonable doubt the following:

1. Defendant has violated the minimum wage provisions of Section 6 of the Fair Labor Standards Act and the prior orders and decrees of this Court by failing to properly compensate his employees for all hours worked.

2. Defendant has violated the overtime provisions of Section 7 of the Fair Labor Standards Act by failing to properly compensate his employees for all hours worked in excess of 40 hours in a work week at one and a half times their regular rate of pay.

3. Defendant has violated Section 11 (c) of the Fair Labor Standards Act and the prior orders and decrees of this Court by failing to keep for two years proper records of hours worked by his employees.

4. That the government is entitled to be compensated for its costs of investigation, preparation and presentation of this case to the Court.

5. That defendant is again in criminal contempt of this Court for willfully and flagrantly violating the lawful orders of this Court as entered on March 10, 1959, April 19, 1962, and April 29, 1965, proscribing all of the acts set forth in Conclusions of Law, Numbers 1, 2 and 3 above.

6. That defendant is again in civil contempt of this Court for violating the lawful orders of this Court as entered on March 10, 1959, April 19, 1962, and April 29, 1965, proscribing all of the acts set forth in Conclusions of Law, Numbers 1, 2 and 3 above.

It must further be noted that the defendant has engaged in a pattern and practice of labor violations over a period of 13 years. This case constitutes defendant's fourth appearance before this Court. Because of the continued and flagrant nature of the violations, this Court believes that the imposition of a term of imprisonment is mandated.

MEMORANDUM

At the conclusion of the trial in the instant case, my decision was orally announced from the Bench. Government's counsel was instructed to submit detailed findings and conclusions which have been filed and are incorporated herein. The following memorandum on the issues in this case is inserted by the Trial Judge for emphasis and clarity.

On November 16, 1959, William Fiore, individually and doing business as Fiore Trucking and William Fiore Contracting Company, was enjoined by this Court from violating the provisions of the Fair Labor Standards Act. The injunction required the defendant to abide by the overtime provisions of the statute as well as directing him to make, keep and preserve records of his employees and of the wages, hours and other conditions and practices of employment maintained by him. This was a consent judgment. The consent was signed by William Fiore, individually, and by Edward P....