The opinion of the court was delivered by: MEANEY
Plaintiff brings this action under the provisions of the Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq., and seeks to recover the sum of $ 2,951.16 as overtime and penalties for labor alleged to have been performed. Plaintiff claims to have entered defendant's employ on December 15, 1938, and to have remained so employed continuously until November 18, 1941.
The defendant corporation was incorporated in May 1939 as the successor corporation to the Onyx Laboratories, Inc., and is organized and existing under and by virtue of the laws of the State of New York. At all times during which it employed the plaintiff, the defendant was engaged in the manufacture and production of oils, acids, resins and other allied synthetic chemical solutions and paint products, a substantial portion of which were produced for interstate commerce and were sold and transported in interstate commerce.
Plaintiff alleged in his complaint, and so testified, that he entered the employ of the defendant on December 15, 1938. The proofs upon the trial showed that this defendant was not incorporated until May 10, 1939. Plaintiff was unable to substantiate his allegations that the defendant as successor to the Onyx Laboratories, Inc. assumed the liabilities as the successor corporation to the Onyx Laboratories, Inc. So much of the complaint as related to the period of alleged employment between December 15, 1938 and May 10, 1939 was therefore ordered stricken.
In his complaint and by direct testimony, plaintiff claimed to have entered the employ of the defendant corporation, as stated hereinbefore, on December 15, 1938. From that date until March 8, 1939, plaintiff asserts he was employed on a 54 hour week at an hourly wage rate of 50 cents per hour. For that period he claimed to be entitled to overtime compensation of 75 cents per hour for hours worked in excess of 44 hours, but that no time and a half overtime pay was ever received.
For the period between March 8, 1939, and October 24, 1939, plaintiff asserts that he was employed for 100 hours each week at an hourly rate of 33 1/3 cents per hour and during which time he was entitled to overtime at the rate of 50 cents for each hour in excess of 44 hours, but for which period no overtime pay was ever received.
For the period between October 24, 1939, and October 24, 1940, plaintiff asserts that he was employed for 100 hours each week at an hourly rate of 33 1/3 cents per hour and during which period he was entitled to overtime compensation at the rate of 50 cents per hour for each hour in excess of 42 hours, but for which period he received no overtime compensation.
At the trial of this action, plaintiff testified that his employment initially was as a general laborer and truck maintenance man, but that within a few months his duties were enlarged to include loading of trucks, maintenance of trucks, shipping and receiving of goods, some supervision of other employees, the hiring and firing of laborers and the mixing and cooking of chemical solutions and formulae. With these vastly increased duties, plaintiff testified he was given the designation of foreman.
In explanation of his duties, plaintiff testified that the cooking of the solutions required the great portion of his time and attention, and was under his supervision. He testified that the 'cooks' were made from two to three times each week, each 'cook' taking approximately 18 to 24 hours to complete, and requiring his constant attention and presence.
Thus, plaintiff testified that when such 'cooks' were made he remained at defendant's premises from the morning of one day until the evening of the day following. This he testified took place two to three times each week. Plaintiff testified further that he had worked as many as 117 hours a week and on one occasion he had worked one full week without sleep, giving constant attention to his duties.
In addition to the plaintiff's testimony, a fellow employee testified to plaintiff's hours of work, bearing out in broad outline the testimony of the plaintiff.
Plaintiff was definite as to the date of his initial employment on December 15, 1938, going to the extent of proving that the firm for whom he had previously worked as a mechanic had been declared a bankrupt shortly before that date.
The defendant, in its answer and at the trial of the issues, denied entirely plaintiff's allegations of hours of work and periods of employment. Testimony for the defendant was that the plaintiff did not enter the defendant's employment until the first week of January 1940, at which time he was employed at an hourly wage for a 53 hour week.
Defendant denied that plaintiff's duties were anything beyond those of a general laborer and truck maintenance man. While admitting that the plaintiff may on occasion have worked at the 'cooks,' he did not have supervision of them, and the 'cooks' in any event took only from 12 to 16 hours and were not run throughout the night as plaintiff testified. Testimony for the ...