to painting, Hilbig fixes broken seats; he takes lights off and checks them; he replaces wiring, replaces with safety glass any broken glass, and works on windows and posts.
Defendant quite readily admits that violations may have occurred with respect to the clerical employees discussed in Finding of Fact number 2. It urges, however, that since the overtime work was the result of an arrangement worked out by the employees themselves, and in view of the fact that the practice has been discontinued, no injunction should issue. That the working of overtime hours was the result of an arrangement made by the employees themselves, would not excuse a violation. However, it would seem inequitable to issue an injunction in a situation such as this, where the violation did not exist at the time of trial, and a recurrence does not seem likely.
The defense raised, with respect to most of the other employees, is that provided by § 13(b)(1) of the Act, 29 U.S.C.A. § 213(b)(1), which exempts '* * * any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; * * *.' The test of the Interstate Commerce Commission's power to establish maximum hours has been held to be whether the employee's activities affect safety of operation. Levinson v. Spector Motor Service, 1947, 330 U.S. 649, 67 S. Ct. 931, 91 L. Ed. 1158. However, this power may not rest upon the performance of work which forms a trivial, casual or occasional part of an employee's activities. Pyramid Motor Corp. v. Ispass, 1947, 330 U.S. 695, 67 S. Ct. 954, 91 L. Ed. 1184. In the light of these decisions and the body of law which has been developed in this field, the court concludes as follows.
Conclusions of Law
1. No injunction should issue with respect to the clerical employees discussed in Finding of Fact number 2.
2. Since Katherine Hunter and Veronica Stiech were compensated on a salary basis, it is doubtful whether any violation occurred with respect to them. See: Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682. At any rate, the method by which they are now paid would seem to be in full compliance with the Act. No injunction should issue concerning the method of compensating these employees.
3. A substantial part of the duties performed by the dispatchers is concerned with safe transportation of the passengers and consequently must be held to affect safety of operation. For this reason no violations of the Act are found to exist as far as the dispatchers are concerned.
4. The activities of William Blauvelt, John Grost, Gilbert DeGroat, Jr. are mainly concerned with keeping the buses repaired and in good mechanical condition. This work bears a direct relation to safety of operation, consequently it is concluded that they are exempt from the coverage of the Act.
5. August Oetzel, Jr., Charles Oetzel, Arthur Buttress, Sr. and Martin H. Morris are essentially gas attendants. The other duties performed by them, which are alleged to affect safety of operation, are of a trivial, casual or occasional nature and thus do not warrant an exemption. The driving of buses from a garage to a transfer station, without carrying passengers, is likewise not the type of activity which would justify exemption from the Act. These employees are, however, engaged in interstate commerce. The court concludes, therefore, that they are not exempt from the coverage of the Act and that their employment for more than 40 hours a week, without payment of overtime compensation, is in violation of the Act. See McComb v. New York & New Brunswick Auto Express Co., Inc., D.C.N.J. 1950, 95 F.Supp. 636; Ex parte No. MC 2, 28 MCC 125, 139.
6. Robert Buttress performs duties in interstate commerce which are primarily of a clerical nature. His checks of parts and accessories are more for the purpose of seeing that usable parts and accessories are not discarded before their useful life has expired, rather than in the interests of safe operation. For this reason he is held to be covered by the provisions of the Act. It follows, therefore, that his employment in excess of 40 hours weekly, without payment of overtime compensation, is in violation of the Act.
7. Since the defendant corporation now keeps a record of the hours of work of Alice Greenfield, it would seem unreasonable to impose the sanction of an injunction for this purpose. But her regular hours during the summer months exceeded 40 weekly, and the evidence shows that she was given extra compensation only on those occasions when she did extra work on busy week- ends. As a ticket seller she was, of course, engaged in interstate commerce. It thus appears that violations occurred in those weeks in the summer when she worked more than 40 hours weekly and was not properly compensated for the overtime.
8. The mechanics, Stafford and Fitzgerald, referred to by the dispatcher Bamberger, are held to be exempt.
9. The testimony concerning the activities of Charles LeBar and Floyd Robbins, the bus washers, and Romalo Gallupo, who cleans the buses, would seem to indicate they are covered by the Act. However, the evidence does not sufficiently indicate that these men worked more than 40 hours weekly, nor how they were paid. Consequently the court refrains from concluding that any violations have taken place with respect to these employees.
10. The work performed by Rudolph Hilbig, the painter, in addition to his painting duties, appears to be incidental to his principal duty of painting and of a trivial, casual or occasional nature. He is nevertheless, engaged in interstate commerce. It is concluded, therefore, that he is not exempted from coverage of the Act and that violations have occurred with respect to his employment.
11. Plaintiff is entitled to an injunction in accordance with the findings and conclusions herein expressed.
Settle form of judgment on notice.
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