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MCCOMB v. NEW YORK & NEW BRUNSWICK AUTO EXP. CO.

April 12, 1950

McCOMB, Adm'r, Wage and Hour Div., U.S. Dept. of Labor,
v.
NEW YORK & NEW BRUNSWICK AUTO EXP. CO., Inc.



The opinion of the court was delivered by: FORMAN

The plaintiff, Administrator of the Wage and Hour Division of the United States Department of Labor, filed his complaint against the defendant, the New York & New Brunswick Auto Express Co., Inc., in which it is alleged that the defendant has violated and is violating the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A § . 201 et seq. by employing certain of its employees in interstate commerce for workweeks longer than 40 hours since May 1, 1942 without compensating these employees for their employment in excess of 40 hours in workweeks at rates not less than one and one-half times the regular rates at which they were employed.

The plaintiff seeks a judgment enjoining and restraining the violations of which he complains pursuant to § 17 of the Act, 29 U.S.C.A. § 217. *fn1"

 At the trial the proofs developed that the complaint revolved around seven employees of the defendant:

 1. Frank Mannino 2. Michael Cserveynak 3. David Dodds 4. John Steiner 5. Jacob Lowen 6. Herbert Kerr 7. Wilbur Surasky

 It is agreed that the defendant is licensed to operate in interstate commerce and that the employees who are the subject of the complaint, it is conceded by the defendant, have worked more than forty hours in a workweek without receiving time and half time for such hours as they have worked in excess of forty hours in a workweek.

 The defendant took the position that the employees concerning whom the plaintiff complains are exempt from the operations of the Act, as being, (1) exclusively subject to the jurisdiction of the Interstate Commerce Commission, or (2) administrative employees. These exceptions to the operation of the Act are claimed by the defendant to be authorized under § 13(a)(1) and 13(b)(1) of the Act, 29 U.S.C.A. § 213(a)(1) and (b)(1). *fn2"

 In the instances of Mannino and Cserveynak, the employees were engaged in manual work having to do with the equipment of the defendant. The defendant claims with regard to both of these employees that they are not covered by the Act but are under the jurisdiction of the Interstate Commerce Commission with regard to hours, and the source of the authority for their exemption is § 13(b)(1) of the Act.

 1. Frank Mannino.

 Specifically, in the case of Frank Mannino, it appeared from the proofs that he is chiefly engaged in filling motor vehicles of the defendant with gas, oil and water. This occupies his attention on each of the five nights of the week he works. He also goes into the plant on Saturday but only a few of the vehicles require gas and oil on that day. He occupies himself then in driving tractors from their places in the parking yard to the inspection station and in returning them to the parking yard. It is also his duty as he performs the service of supplying gas, oil and water to the vehicles to observe if any lugs which hold the wheels of the vehicles in place are loose or otherwise imperfectly in position. If he finds such condition, it is duty to tighten the lugs if he can, and if not the matter is to be brought by him to the attention of the mechanic.

 The defendant contended that in the matter of ascertaining the necessity for filling radiators of the motor vehicles with water and in the area of moving the vehicles to and from the inspection station as well as in so far as his duties concerned the security of the lugs on the wheels of the motor vehicles, this employee was engaged in the safety of operation of the vehicle, which brought him under the coverage of the Interstate Commerce Commission regulations and withdrew him from the provisions of the Fair Labor Standards Act.

 The services with regard to water are in no different category with regard to the safety of the operation of the vehicle than in providing it with gas and oil. The latter operations have been held not to constitute services closely enough connected with safety of operation as to give the employer immunity from the Act. *fn3" The driving of the trucks to the inspection station and the return thereof to the parking yard likewise is not such an operation.

 In argument the defendant placed its reliance chiefly upon the duties concerned with the lugs. The employee testified that in his execution of this duty he observed the lugs as he passed about each vehicle in his operation of servicing it with gas, oil and water. Neither can the service that the employee rendered in connection with the lugs be regarded as so closely associated with the safety of operation of the vehicle as to give the defendant the relief it suggests. The duty cast upon this employee in this respect was purely an observational one and a kind of extra check in this direction as he performed other duties as enumerated. The occasional discovery by him of a loose lug and the tightening thereof cannot be regarded as of sufficient substance to place him outside of the provisions of the Act since this operation was insignificant in his routine of other work. Moreover, the defendant admittedly employed other means for the safety in operation of their vehicles with regard to tires. The lugs are an integral ...


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