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TENAGLIA v. TULLY & DI NAPOLI

March 11, 1942

TENAGLIA
v.
TULLY & DI NAPOLI, Inc.



The opinion of the court was delivered by: ABRUZZO

ABRUZZO, District Judge.

This action, instituted by the plaintiff, was brought to recover $1,738.14 under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, for unpaid overtime compensation and for an additional equal amount as liquidated damages as required by statute, together with the costs and a reasonable attorney's fee.

The complaint alleges that the plaintiff was employed by the defendant from March 15, 1940, to January 3, 1941, in the capacity of a watchman. The defendant contractor was engaged in certain construction work pursuant to an agreement with the Transit Commission of the State of New York and the Long Island Railroad Company, a subsidiary of the Pennsylvania Railroad Company, which the plaintiff contends involved interstate commerce, thereby placing plaintiff's employment within the provisions of the Fair Labor Standards Act of 1938, Title 29 U.S.C.A. § 201-219.

 Sections 206 and 207 of the Act are claimed to have been violated by the defendant. This suit has been brought pursuant to Title 29 U.S.C.A. § 216(b) which provides the penalties for the alleged violations.

 Upon the trial of this action, the evidence adduced indicated that the defendant was engaged in construction work involving interstate commerce during part of the time the plaintiff was employed by it in the capacity of a watchman. The defendant conceded that some of the work performed by the plaintiff was placed in the category of interstate commerce upon its consent at the request of the United States Wage and Hour Division. Thus, the plaintiff is entitled to overtime payment according to the Fair Labor Standards Act of 1938 for that period of time the defendant employed him on jobs categorized as interstate commerce. The testimony further disclosed that many employees including the plaintiff had their claims before the United States Wage and Hour Division; and each of them excepting the plaintiff, were satisfied with the results of that investigation and accepted the amount computed by that Division.

 Therefore, the specific amount due the plaintiff for overtime must be determined by the Court. The computations of the plaintiff differ greatly from those submitted by the defendant which relies upon its records, while the former apparently depends upon his own recollection.

 The original complaint, dated August 26, 1941, alleges:

 "Seventh: That plaintiff worked for the defendant as aforesaid at a weekly salary of $30.00 per week for a 40 hour week consisting of five days of work at 8 hours per day and the average hourly pay being 75 per hour; that actually plaintiff worked for the defendant as follows:

 "March 15, 1940 to July 1, 1940, a period of 15 weeks for 16 hours a day, 5 days a week, amounting to 38 hours a week over and above the statutory work week of 42 hours.

 "August 1, 1940 to October 24, 1940, a period of 12 weeks for 16 hours a day, 5 days a week, amounting to 38 hours a week over and above the statutory work week of 42 hours.

 "October 24, 1940 to January 3, 1941, a period of 10 weeks for 16 hours a day, 5 days a week, amounting to 40 hours a week over and above the statutory work week of 40 hours.

 "During one month plaintiff worked for the defendant 7 days a week at 16 hours per day including Saturdays and Sundays which entitled the plaintiff to overtime compensation for 10 days during said month at 16 hours per day of a total of 160 hours.

 "That plaintiff's overtime rate of time and one-half is $1.12 1/2 per hour; that the aggregate of overtime hours which plaintiff worked and for which he is entitled to the statutory compensation is 1586 hours at $1.12 1/2 per hour, making the total of $1,784.25."

 Thereafter and on November 24, 1941, an amended complaint was filed which stated: "Seventh: That plaintiff worked for the defendant as aforesaid at a weekly salary of $30.00 per week for a 48 hour week consisting of 6 days of work at 8 hours per day, and the average hourly pay being 62 1/2 per hour; that plaintiff's overtime rate of time and one-half is 93 3/4 per hour; that plaintiff's overtime compensation which he should have received under the terms of the Act but failed to receive is computed as follows: March 27th, 1940 to June 26th, 1940, 14 weeks, 16 hours a day, 7 days a week, 42 statutory hours, 70 hours overtime. Rate: 62 1/2 per hour regular 93 3/4 per hour overtime 42 hours regular at 62 1/2 $26.25 70 hours overtime at 93 3/4 65.23 Pay should be per week 91.48 Received 30.00 Due each week 61.48 14 weeks $860.72 One week of two weeks ending July 3rd and July 10th, 1940, 6 days at 16 hours per day, 96 hours -- 42 statutory hours, 54 hours overtime. 42 hours regular at 62 1/2 $26.25 54 hours overtime at 93 3/4 50.62 Pay should be 76.87 Received 30.00 Due $46.87 July 17th, 1940 to September 4th, 1940, 8 weeks, 16 hours per day, 6 days per week. 42 hours regular at 62 1/2 $26.25 54 hours overtime at 93 3/4 50.620 Pay should be 76.87 Received 30.00 Due each week $46.87 8 weeks $374.96 September 11th, 1940 to October 23rd, 1940, 7 weeks, 10 hours per day, 6 days per week. -- 42 statu- tory hours, 18 hours overtime. 42 hours regular at 62 1/2 $26.25 18 hours overtim at 93 3/4 16.87 Pay should be 43.12 Received 30.00 Due each week 13.12 7 weeks $91.84 October 30th, 1940 to November 20th, 1940, 4 weeks, 10 hours per day, 6 days per week -- 40 statu- tory hours, 20 hours overtime. 40 hours regular at 62 1/2 $25.00 20 hours overtime at 93 3/4 18.75 Pay should be 43.75 Received 30.00 Due each week 13.75 4 weeks $55.00 November 27th, 1940 to December 31st, 1940, 6 weeks, 16 hours per day, 6 days per week. 40 statutory hours regular at 62 1/2 $25.00 56 hours overtime at 93 3/4 52.50 Pay should be 77.50 Received 30.00 Due each week 47.50 6 weeks $285.00 January 1, 2, 3, 1941, 3 days at 16 hours per day. 20 hours regular at 62 1/2 $12.50 28 hours overtime at 93 3/4 26.25 ...


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