West v. Smoky Mountains Stages, 2319.

• Decision Date: 05 August 1941
• Docket Number: No. 2319.,2319.
• Citation: 40 F. Supp. 296
• Parties: WEST v. SMOKY MOUNTAINS STAGES, Inc.
• Court: U.S. District Court — Northern District of Georgia

40 F. Supp. 296

WEST v. SMOKY MOUNTAINS STAGES, Inc.

No. 2319.

District Court, N. D. Georgia, Atlanta Division.

August 5, 1941.

McLarty & Cooper, of Atlanta, Ga., for plaintiff.

Otis N. Pharr, of Lawrenceville, for defendant.

UNDERWOOD, District Judge.

The above case came on regularly for hearing on the merits and on oral motion to dismiss and was tried to the Court without a jury.

Petitioner sues, under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to recover alleged unpaid overtime compensation amounting to $166.40, and for an additional equal amount of liquidated damages and reasonable attorney's fees. He makes no claim for unpaid minimum wages, since his earnings were above the minimum wage provided in said Act.

Findings of Fact.

Plaintiff was employed by defendant, a North Carolina corporation engaged as a common carrier in the operation of busses in interstate commerce. He was in defendant's employ from September 9, 1939, until June 8, 1940, though no recovery is sought for overtime subsequent to May 5, 1940.

Plaintiff was employed by defendant as a mechanic at a wage of $25 per week. Nothing was said at the time of employment about the number of hours per week to be worked and no records were kept either by plaintiff or defendant of the hours actually worked. Defendant did not do so because it considered plaintiff exempt under Section 13(b) of the Fair Labor Standards Act. Later, the Administrator of the Wage and Hour Division claimed jurisdiction under the Act and thereafter plaintiff's workweek was limited to forty (40) hours.

The evidence as to excess hours claimed to have been worked is very vague and indefinite and consists principally of estimates, there being no records of any kind to determine accurately what they were. Plaintiff claims to have reported for work (after the first two or three weeks during which he went to work at 8 o'clock A. M.), at 7 o'clock A. M., but the evidence as to this is not persuasive and it appears from plaintiff's own testimony that no one else came to work before 8 o'clock except a colored man who, plaintiff testified, came in about 7:30 A. M. Mr. Parker, who employed defendant, testified that he usually reported to work between eight and nine o'clock in the morning. A bus left the garage at 6:30 o'clock in the morning but plaintiff was never there when it left. The driver, who had a key to the garage, always opened the garage and got the bus out with plaintiff's aid. No other bus left until 11:15 A. M. The evidence as to the quitting time was equally vague and uncertain. Plaintiff testified that he remained until after the arrival of the bus scheduled to arrive at 6:50 P. M., and stayed on later if there was anything to do, and that, as a general rule, he left between seven and eight o'clock P. M. The evidence as to time off for lunch varied between twenty minutes to two hours. The evidence is not sufficiently definite and certain to support a finding of more than sixty (60) hours per week, and I therefore find that plaintiff worked sixty (60) hours per week during the period from September 9, 1939, to May 5, 1940.

Plaintiff was employed as a mechanic and his duties consisted principally of inspecting and repairing each bus that came in during his work hours, examining, adjusting and repairing the motor, lights, brakes and any other parts of the bus that needed attention or repair. The bus was usually gassed, oiled and cleaned by the colored man, but plaintiff sometimes helped him in case of hurry. About ninety per cent of the time worked by plaintiff from September 9, 1939, to May 5, 1940, was work upon busses preparing for eventual trips outside of the State of Georgia, and approximately ten per cent of his time was work upon busses not scheduled for trips outside of the State.

Safety of operation depends upon safe mechanical equipment as well as upon proper operation by human agencies. The care and repair of motors, lights, brakes, bearings and other appliances and parts of a motor bus, in an important manner affect the safety of operation of the bus, and I find from the evidence in this case that the activities of plaintiff, whose primary duties were to keep the motor vehicles in good and safe working condition, did affect the safety of operation of the busses which he inspected and repaired and which were being operated in interstate commerce.

Conclusions of Law.

The question presented is whether or not plaintiff and defendant came within the coverage of the Fair Labor Standards Act.

They do come within the Act, unless plaintiff was an employee expressly exempted by Section 13(b) of the Fair Labor Standards Act, which provides: "(b) The provisions of section 7 207 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission...