Wirtz v. Sherman Enterprises, Inc.

• Decision Date: 14 May 1964
• Docket Number: Civ. A. No. 13822-14342.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. SHERMAN ENTERPRISES, INC., Defendant.
• Court: U.S. District Court — District of Maryland

229 F. Supp. 746

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. SHERMAN ENTERPRISES, INC., Defendant.

Civ. A. Nos. 13822-14342.

United States District Court D. Maryland.

May 14, 1964.

Marshall H. Harris, Deputy Regional Atty., U. S. Dept. of Labor, Charles Donohue, Sol., and Ernest N. Votaw, Regional Atty., U. S. Dept. of Labor, Chambersburg, for plaintiff.

Lawrence T. Zimmerman, Washington, D. C., Earle K. Shawe, Baltimore, Md., for defendant.

WINTER, District Judge:

Plaintiff sues, pursuant to the provisions of the Fair Labor Standards Act, 29 U.S.C.A. §§ 201 et seq. to recover unpaid overtime compensation allegedly due under 29 U.S.C.A. § 207. As presented for decision, the controversy involves the question of coverage under the Act of four employees of the defendant during the period of the work weeks ending May 28, 1960 to August 25, 1961.¹ The parties have entered into stipulations concerning the hours worked, travel time, amounts paid by the defendant, and amounts claimed by the plaintiff, for each of Alphonse Polselli, Thomas Polselli, Robert J. Kittell, and Thomas L. Simon, so that the parties may agree as to the amount of the judgment to which plaintiff is entitled to the extent, if any, that coverage is found.

Defendant, a Massachusetts corporation having offices and a shop in Gambrills, Maryland, is engaged in the lease or sale of automatic pinsetting equipment for bowling alleys in various states of the Eastern United States. New equipment is manufactured for defendant by Crompton-Knowles Corporation, an unaffiliated corporation, situated in Worcester, Massachusetts. Repossessed equipment is reconditioned and rebuilt by defendant at its shop at Gambrills, Maryland. Defendant distributes two types of machines — "rubber duck," which is distributed exclusively to bowling alleys in Pennsylvania, and "hard duck," which is distributed elsewhere throughout the Eastern United States.

During the period in suit, defendant's salesmen solicited business throughout the East from Vermont to Georgia. Machines were sold absolutely, or on an installment sales contract, or leased under a lease containing an option to purchase. An essential part of every sale or lease was an undertaking by defendant to install the equipment on the customer's premises and, as part of such installation, to maintain its personnel on the premises for a period after installation to adjust the equipment and put it in good working order, to train the customer's employees how to maintain and make minor adjustments to the equipment, and to replace defective parts for a period of six months after installation.

When defendant's salesmen procured a customer whose credit was approved, defendant notified Crompton-Knowles, and the latter made shipments of the component parts of the pinsetting equipment directly to the customer. Shipment was usually made by common carrier. Defendant then dispatched a traveling installation crew to the customer's premises, together with the tools necessary to install, adjust and service the machines. During the relevant period the volume of defendant's business was so great that its installation crews were almost constantly either at a job site or traveling to one.

The installation crews normally consisted of ten men, one of whom was the crew chief. Each crew chief would communicate with the defendant's work manager at the Gambrills, Maryland office to ascertain the location of a job site. The work chief would then direct the crew to report to a certain customer's bowling alley at a designated time. Although not strictly required to do so, the members of a crew traveled to a job site in two station wagons owned by the defendant. While traveling, each member would receive an allowance of $1.00 for each forty miles traveled and, in addition, would receive a per diem of $7.50 for subsistence if the job site was more than a given distance from Gambrills, Maryland, the distance being approximately the distance required to travel outside the State of Maryland. A crew member could elect to travel in his own vehicle, but he would not be paid the $1.00 per forty miles' allowance unless he carried other employees as passengers. In addition to the two station wagons used by the installation crew for transportation, defendant supplied two panel trucks to carry power and hand tools necessary for the installation of the pinsetting equipment. Upon arrival at a job site it was one of the duties of the crew to unload these panel trucks.

During the portion of the period in question that each was an employee of the defendant, Alphonse Polselli, Thomas Polselli and Robert Kittell were members of the same "hard duck" crew, and Alphonse Polselli was the crew chief. Thomas Simon was a member of a "hard duck" crew for approximately seven weeks; for two weeks he was engaged at the Gambrills, Maryland shop reconditioning and rebuilding repossessed machines; and the remainder of his period of employment he was engaged in the servicing of "rubber duck" machines in Pennsylvania. Because his duties at Gambrills, Maryland, and in servicing "rubber duck" equipment, present somewhat different factual aspects, they will be considered separately hereafter.

When a "hard duck" installation crew arrived at a job site the crew chief would communicate with the common carrier and arrange for the delivery of the machine components to the customer's bowling alley. The number of trucks used by the common carrier depended on the size of the customer's premises, since each alley required the component parts for one complete machine. Although the size varied, the average installation was sixteen machines at a given site. The components of sixteen machines would require two trucks. The components for each machine were packed in fifteen to twenty cartons, and the weight of these cartons would range from ten to seven hundred fifty pounds. When the carrier's vehicles arrived at the customer's premises, the members of the crew would unload the vehicles by removing the cartons from the truck and placing them in appropriate positions on the alleys in the customer's establishment. Unloading took between two-and-a-half and four hours. Casual labor was sometimes employed to unload such vehicles, but the use of casual labor was the exception, rather than the rule. When the truck was unloaded and the components of the machines unpacked, the crew would proceed to assemble and install the equipment. While not determinative of any issue in this case, and although sharply disputed, I find that during the period in question initial installation consumed approximately eight to ten hours per machine. Installation was followed by testing and the making of required adjustments, and then the installation crew would immediately depart to the next job site, leaving one member behind for approximately two weeks to continue to make adjustments as needed during actual use of the equipment by the customer's patrons and to train the customer's maintenance personnel.

During the period in suit there were 643 installations of new equipment, and 140 installations of reconditioned and rebuilt machines. The reconditioned and rebuilt machines had been obtained by repossession. When defendant repossessed equipment, the installation crews would travel to the customer's alley and perform the manual function of disassembling and removing the machines. The components of the machines would be sent to the Gambrills, Maryland shop where they would be rebuilt and reconditioned and then stored in a warehouse in Maryland. When resold defendant would ship the components of these machines directly to the customer and the installation crew would perform the same functions as with totally new equipment.

Each member of the installation crew was required to keep certain records, in addition to his other duties. He kept personal time and travel records and was paid $1.00 per week for this function, which consumed approximately one hour. Each week the crew chief would collect these records from the crew, check their accuracy against records which he kept relating to each member of the crew, and send the crew's records to the Gambrills, Maryland office, which, in turn, issued appropriate checks in payment of the amounts shown to be due.

During the time that Thomas Simon performed duties in reference to "rubber duck" machines, he was required to deal with pinsetting machines of greater complexity. These, consisting of more parts than the "hard duck" machines, were subject to more frequent breakdowns. Mr. Simon's principal functions were to replace defective parts after the installation and during actual operation by the customers, and to train the customer's mechanics. Indicative of the greater servicing required by "rubber duck" equipment, Mr. Simon on one occasion was required to remain at the premises of one customer for approximately one thousand hours. Mr. Simon, too, kept personal time and travel records, and he was required to prepare service forms supplied by the Gambrills, Maryland office for each machine which he serviced. His personal records and service forms were collected by his supervisor and, presumably, forwarded to the Gambrills, Maryland office.

Plaintiff advances four theories of coverage. They are that: (1) the employees regularly engaged in traveling across state lines in the performance of their duties as members of an installation crew are covered by the Act, (2) the preparation of time, subsistence and service reports is covered by the Act, (3) loading and unloading of components of pinsetting machines and tools to install or disassemble pinsetting machines, when the same have been shipped in interstate commerce, are so closely related to interstate commerce as to be covered by the Act, and (4) employees while engaged in the installation and servicing of equipment received from an interstate shipment in the performance of a...