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MCCOMB v. AIBEL

October 23, 1951

McCOMB
v.
AIBEL et al.



The opinion of the court was delivered by: GALSTON

There are two motions to be disposed of, made by the plaintiff, for summary judgment and to vacate a notice for taking depositions.

The action seeks to enjoin the defendants from violating the provisions of sections 15(a)(1) and 15 (a)(5) of the Fair Labor Standards Act of 1938, U.S.C.A., Title 29, Sec. 201 et seq. It is alleged that the defendants are co-partners, doing business under the trade name French Textile Company, and own and control a place of business and manufacturing plant for the production of hair nets at 110 Fifth Avenue, and a branch plant located at 229 East 109th Street, both in the Borough of Manhattan and State of New York. The defendants, so the complaint alleges, employed and are employing employees including homeworkers, and it is the claim of the plaintiff that the homeworkers are employees of the defendants within the meaning of the Act, especially section 3(e) and (g) thereof. It appears from the complaint that the Administrator of the Wage and Hour Division of the United States Department of Labor, pursuant to authority conferred upon him under section 11(c), issued regulations prescribing the records of persons employed, and of wages, hours and other conditions, to be made and preserved by the employer, subject to the provisions of the Act. These regulations were published in the Federal Register, and are known as Title 29, Chapter V, of Federal Regulations, Part 516.

 The plaintiff complains that since February 13, 1943 the defendants repeatedly have violated and are violating sections of the Act in that they have failed to keep records of their employees, including homeworkers. The Administrator, on April 4, 1942, effective April 20, 1942, as amended May 5, 1943, effective May 12, 1943, issued regulations, sections 617.3, Part 617, Title 29, Chapter V, Code of Regulations, which regulations provided as follows:

 'No work in the knitted outerwear industry, as defined in sec. 617.5 and sec. 617.6, shall be done in or about a home, apartment, tenement, or room in a residential establishment after November 30, 1942, except by such persons as have obtained special home work certificates issued pursuant to applicable regulations of the Wage and Hour Division, authorizing industrial home work by a worker who:

 '(a)(1) Is unable to adjust to factory work because of age or physical or mental disability; or

 '(2) Is unable to leave home because his presence is required to care for an invalid in the home; and

 '(b)(1) Was engaged in industrial home work in the industry, as defined prior to August 20, 1941 (except that if this requirement shall result in unusual hardship to the individual home worker it shall not be applied); or

 '(2) Is any any time engaged in such industrial home work under the supervision of a State vocational rehabilitation agency or of a sheltered work shop as defined in sec. 525.1 of this chapter.'

 Also on April 4, 1942, Regulations, Part 617.100 et seq., Title 29, Chapter V, Code of Federal Regulations, effective December 1, 1942, provided for the issuance of certificates for homeworkers in the knitted outerwear industry, and for the submission by the employer of records in respect to such house workers at stated semi-annual intervals.

 Plaintiff complains that defendants have violated these regulations, and have permitted many of their homeworkers to do work in the production of goods for interstate commerce without having obtained homework certificates.

 In consequence the plaintiff demands a permanent injunction restraining the defendants from violating the provisions of the Act.

 The answer sets up substantial denials of alleged violations of the Act.

 In support of its motion the plaintiff has submitted an affidavit by Abraham Klainbard, who, as an Inspector and Investigator employed by the Wage and Hour Division, was assigned in February, 1947 to make an investigation of the French Textile Company, the trade name and style under which the defendants are doing business. The Klainbard affidavit states that the period of time covered by the investigation was from February 13, 1943 to March 8, 1947. The affidavit indicates that the defendants engage, as co-partners, and under the trade name and style of French Textile Company, in the manufacture of hair nets. The knitted fabric from which the hair nets are made was purchased from a French Textile Co., In., a New York corporation, the stock of which is wholly owned by the defendants and their three children. According to the affidavit, the defendants own 52% of the stock in this corporation.

 Kalinbard avers that he interviewed the employees of the defendants, including their homeworkers, and that he ascertained that none of the homeworkers thus interviewed had special homework certificates authorizing their employment in the house. He says that a corporation known as French Textile Co., In. shares with the defendants an office at 110 Fifth Avenue, New York City. The co-partnership, i.e. the defendants, maintains a branch office 229 East 109th Street, New York City, which is used for distribution of work to the homeworkers. The hair net fabric- as distinguished from the hair nets- was knitted by the corporation. He admits that what he claims to be an insignificant portion of this product is sold by the corporation to various manufacturers and other users. After receipt of the hair net fabric from the corporation, the defendants' employees cut it into suitable lengths for the making of individual hair nets. These cut lengths are then transported to the 109th Street branch of the defendants. The homeworkers manufacture these fabric lengths of hair net into the finished ...


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