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May 15, 1951


The opinion of the court was delivered by: BYERS

Here the plaintiff seeks to recover a judgment against the Executrix of his deceased employer for overtime piece-work wages which he says were withheld from him in violation of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

The circumstances are unlike any seemingly present in the reported cases involving piece-work overtime.

 The enterprise was conducted by Kleinberger, deceased, who employed about fourteen persons in the manufacture of ladies' hand bags at 79 Madison Avenue, Manhattan. The plaintiff thus described his own job as a framer: 'I insert the bag into the frame by pressure, squeezing the frame with a machine with two jaws, and by pressing it so as to squeeze the frame down.

 'Q. That frame with relation to the handbag, what is its function? A. It holds it while I am inserting the handbag in the frame.

 'Q. What is the purpose of the frame itself with relation to the ladies' handbag? It is the body of the handbag, is it not? A. It is really what makes the bag.'

 From the foregoing, it is understood that the plaintiff assembled certain elements into a completed article; that those elements were made by others who worked on a time basis. If that is so, it would seem that such elements must have been somewhat indiscriminately left lying around at the close of each working day, if the plaintiff's testimony is to be accepted concerning his activity after other workers departed and before they arrived at 8:30 each morning. Perhaps that is what happened, but if so, there is no testimony to that effect, nor would it seem to comport with reasonable probabilities. There was no testimony, for instance, by fellow workers to the effect that it was customary for them to leave bags and frames ready for assembly, piled or otherwise arranged at their departure, and to find assembled handbags on the plaintiff's table or elsewhere, on arrival at the plant on the following day.

 There was another piece-worker, the witness Waks, and it seems to be undisputed that he was a more skilled, i.e., a faster worker than the plaintiff and hence his earnings were higher. He says that occasionally he worked overtime, but is not asserting any claim in that behalf. Another piece-worker, Miss Rattman, said that during the seasons (Spring and Christmas) she worked more than forty hours per week but could not answer as to whether she was paid for overtime, because another employee 'took charge of that'.

 Seemingly the plaintiff's cause comes down to this: He says that he had to put in more hours in order to nearly equal the earnings of the more skillful Waks, and therefore he should be allowed to recover alleged overtime at one and one-half regular pay and thus visit upon his employer that higher rate of compensation because he chose this method of bringing himself up fairly close to the level of his fellow worker's performance.

 If indeed the law contemplates such a premium upon inferior performance, the assertion of such a claim at least invites careful scrutiny of the evidence adduced in its support, since there is no effort to invoke Section 214 of the Act in plaintiff's behalf.

 The plaintiff's employment started in November of 1943, and his claim against the Executrix of Kleinberger is necessarily restricted to the period ended with the death of the latter on November 19, 1947.

 It is not without significance that the original complaint asserted a claim for overtime computed at the rate of sixty-three hours per week for the entire period embraced between those dates.

 By appropriate proceedings in the cause, an amended complaint became requisite, which resulted in reducing plaintiff's claim from $ 4,360.50 plus a like amount for liquidated damages, to the sum of $ 1,276.50 equally to be enhanced, covering the period from July 28, 1946, to December 31, 1947, which is too long by over one month.

 The significance of the earlier assertion does not lie in its present infirmity under the law, but in the plaintiff's own testimony on the trial, that for much of the earlier period for which he originally sued, he knew that he did not work overtime and hence it follows that he had no claim in that behalf. The employer's records (Ex. E) clearly so demonstrate. As to 1943, 1944 and 1945, it was a strike suit to the plaintiff's knowledge, which does not mean that the same is necessarily true for the two later years. however, the plaintiff's testimony as to the period now in suit must be weighed in the light of the allegations of his original complaint.

 The plaintiff's earnings in 1946 were about $ 5,100.00 (p. 101) and $ 5,000.00 for eleven months in 1947 (p. 102), and it would be of interest to see how these totals compare with time and overtime at the Union rate of $ 1.50 per hour for the number of weeks during which the plaintiff actually worked in 1946 and 1947, which he says he computes at sixty-three hours per week, as a rough measure of the inherent justice of his ...

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