Walling v. Lippold

• Decision Date: 02 July 1947
• Docket Number: Civil Action No. 236—46.
• Citation: 72 F. Supp. 339
• Parties: WALLING, Administrator of Wage and Hour Division, U. S. Dept. of Labor, v. LIPPOLD et al.
• Court: U.S. District Court — District of Nebraska

72 F. Supp. 339

WALLING, Administrator of Wage and Hour Division, U. S. Dept. of Labor, v. LIPPOLD et al.

Civil Action No. 236—46.

District Court, D. Nebraska, Omaha Division.

July 2, 1947.

COPYRIGHT MATERIAL OMITTED

William S. Tyson, Sol., of Washington, D. C., Reid Williams, Reg. Atty., Wage and Hour Division, Department of Labor, and John A. Weiss, Atty., Wage and Hour Division, Department of Labor, both of Kansas City, Mo. (Jeter S. Ray, Associate Sol., and John J. Babe, Asst. Sol., both of Washington, D. C., on the brief), for plaintiff.

Herbert W. Fischer, of Fischer, Fischer & Fischer, of Omaha, Neb. (Ben F. Shrier, of Omaha, Neb., on the brief), for defendants.

DONOHOE, District Judge.

L. Metcalfe Walling, Administrator of the Wage and Hour Division, United States Department of Labor, has brought this action against Fred S. Lippold and Harold J. Lippold, copartners, doing business as Kitty Clover Potato Chip Company, for an injunction permanently enjoining and restraining the defendants from violating provisions of Sections 15 (a)(1), 15(a)(2) and 15(a)(5) of the Fair Labor Standards Act of 1938, Act of June 25, 1938, c. 676, 52 Stat. 1060, U. S.C.A. Title 29, § 201 et seq. Pursuant to stipulations, and by orders of the court, William R. McComb, Administrator of the Wage and Hour Division, United States Department of Labor, has been substituted as plaintiff, and Lou Lippold has been joined as an additional party defendant. In the initial stages of the trial, it was stipulated:

"That the defendants at their plant at 1105 South 24th Street in the city of Omaha (Nebraska) are engaged in the manufacture or production of potato chips, fried popcorn, and in the sale of popcorn for popping in packages; that the company has its main office here in Omaha and has branch offices in Sioux City (Iowa) and Kansas City (Missouri) which are distribution points; that it also has salesmen working in Iowa, out of the Omaha office; that all popcorn and potato chips which are sold in Missouri and Kansas are produced here in Omaha and shipped in large tins for convenient re-packaging in Kansas City or Sioux City and then resold, and that the company ships from between 35% to 40% of the products which it manufactures to the states of Iowa, Missouri and Kansas, and that the employees here involved are engaged in the production of popcorn and potato chips, which are shipped to Kansas, Missouri and Iowa."

The action is founded upon an alleged failure to pay overtime to, and maintain proper records for, eight of the defendants' employees: Peter Ghiringhello, Richard Kisicki, Nicholas R. Lippold, William Ramsey, Helen Ramsey, Marjorie Wyman, Mary Wirzbicki and Jean Heffner, the latter of whom is no longer employed by the defendants and was not produced as a witness.

The court makes the following special Findings of Fact.

1. Peter Ghiringhello is employed by the defendants as a janitor in charge of a night crew of three or four employees who clean the defendants' plant and certain heavy machines used in making potato chips. Except for time spent in carrying oil to cool the machines for cleaning, most of Mr. Ghiringhello's time is spent working with, and performing duties of the same nature as those performed by, other employees on this night crew. There is no evidence as to the amount of time spent by Mr. Ghiringhello in supervising, or as to the regular or customary exercise of discretion by him. The evidence, while showing that Mr. Ghiringhello has occasionally brought in men for hiring by the defendants, does not establish that he has the power to hire and fire employees.

2. On or about June 11, 1942, the defendants, with Mr. Ghiringhello's consent, placed Mr. Ghiringhello on a weekly salary basis of $27.50 per week. Prior to this time, he had been employed by defendants on an hourly basis at the rate of 40¢ per hour for forty hours and 60¢ per hour for time in excess of forty hours per week. During the ten weeks immediately preceding the change from an hourly to a weekly basis, Mr. Ghiringhello's hours of employment by the defendants had ranged from 46 to 58.75 hours per week; the weekly average being 55.25 hours. His weekly earnings had ranged from $19.60 to $27.25; the average being $25.15 per week. In 1943, Mr. Ghiringhello's salary was increased by the defendants to $35.00 per week; on March 22, 1945, to $38.00 per week; and on April 17, 1947, to $42.00 per week.

3. Richard Kisicki is employed by the defendants as an assistant foreman in charge of employees operating two heavy machines used in making potato chips. In the absence of Mr. Flowers, the plant superintendent, Mr. Kisicki acts as supervisor. About 50% of his time is spent in maintaining the equipment and machines and in plant maintenance. There is no evidence as to the amount of time spent by Mr. Kisicki in performing the duties of Mr. Flowers or as to the exercise of discretionary powers by Mr. Kisicki.

4. On or about January 1, 1942, the defendants, with Mr. Kisicki's consent, placed Mr. Kisicki on a weekly salary basis of $27.50 per week. Prior to this time, he had been employed by the defendants on an hourly basis at the rate of 40¢ per hour for forty hours and 60¢ per hour for time in excess of forty hours per week. During the ten weeks immediately preceding the change from an hourly to a weekly basis, Mr. Kisicki's hours of employment by the defendants had ranged from 42.75 to 53.5 hours per week; the weekly average being 50.25 hours. His weekly earnings had ranged from $18.25 to $42.65 (the latter figure including a Christmas bonus of $27.50); the average being $24.65 per week. In 1943, Mr. Kisicki's salary was increased by the defendants to $35 per week; on February 24, 1944, to $40 per week; on January 4, 1945, to $45 per week; on December 6, 1945, to $55 per week; and on April 10, 1947, to $60 per week.

5. Nicholas R. Lippold is employed in the defendant's office. His duties consist of cleaning the office, carrying mail, making trips to the bank, and running other errands on business connected with the office. He does not sell or deliver the defendants' products.

6. On or about January 1, 1942, the defendants, with the consent of Nicholas R. Lippold, placed Mr. Lippold on a weekly salary basis of $22.50 per week. Prior to this time, he had been employed by the defendants on an hourly basis at the rate of 33¢ per hour for forty hours and 49½¢ per hour for time in excess of forty hours per week. During the eleven weeks immediately preceding the change from an hourly to a weekly basis, Mr. Lippold's hours of employment by the defendants had ranged from 13.25 to 54 hours per week; the weekly average being 47 hours. His weekly earnings had ranged from $4.37 to $20.13; the average being $17.17 per week. In September, 1942, Mr. Lippold's salary was increased by the defendants to $25 per week; on January 3, 1946, to $30 per week; and on April 3, 1946, to $42 per week.

7. William Ramsey and his wife, Helen Ramsey, occupy an apartment in the building where the defendants' plant is located. Mr. Ramsey is employed as foreman of the defendants' shipping department and is in charge of packing and shipping the defendants' products. In addition to his duties in the shipping department, he performs other small tasks about the plant, such as turning on a thermostat for heating the building and making minor repairs. A telephone connected with the switchboard in the plant is located in the apartment. After regular hours in the plant, this telephone is on a direct line into the apartment and is the only telephone in operation in the building.

8. While William Ramsey spends his time at night on the defendants' premises, he is not hired for the purpose of a night watchman. There is no evidence that he is required to periodically inspect the premises at night.

9. On or about September 24, 1942, the defendants, with Mr. Ramsey's consent, placed Mr. Ramsey on a weekly salary basis of $25 per week. Prior to this time, he was employed by defendants on an hourly basis at the rate of 40¢ per hour for forty hours and 60¢ per hour for time in excess of forty hours per week. His maximum workweek had been fifty-two or fifty-three hours. On June 10, 1943, Mr. Ramsey's salary was increased by the defendants to $27.50 per week; on January 4, 1945, to $30 per week; and on November 15, 1945, to $35 per week. In addition to his weekly salary, the defendants give Mr. Ramsey the advantage of the use of the apartment. The defendants do not consider the use of the apartment as being worth a certain sum of money in fixing the amount of Mr. Ramsey's compensation. He does not punch a time card.

10. Helen Ramsey, wife of William Ramsey, has been employed since 1943 by the defendants. Her regular duties consist of cleaning the girls' restrooms, for which she has always been paid the sum of $6 per week. She spends six to eight hours per week in performing this work. She does not punch a time card.

11. In addition to the work mentioned in the preceding special finding, Mrs. Ramsey also packages shelled popcorn for the defendants. This work, which is performed in the basement of the defendants' plant, is a regular part of the defendants' business; the packaged popcorn being sold and delivered by the defendants to their customers. The popcorn and materials for packaging are owned by the defendants. While there are no fixed and regular hours for the packaging of popcorn by Mrs. Ramsey, the time for performing this work being largely a matter of her convenience, Mrs. Ramsey puts in a sufficient amount of time at this work to keep the defendants supplied with packaged popcorn.

12. For her work in packaging shelled popcorn, the defendants pay Mrs. Ramsey on a piecework basis at the rate of 7½¢ per case. She packages an average of fourteen cases per hour. During those weeks between July 4, 1946, and April 17, 1947, in which Mrs. Ramsey packaged popcorn for the defendants, her gross...