The opinion of the court was delivered by: LEVET
This is an action arising under the Fair Labor Standards Act of 1938, as amended, Title 29 U.S.C.A. §§ 201-219. Plaintiff, a former employee of defendant, seeks (1) recovery of $ 3,635.51 in wages alleged to be due as overtime; (2) an equal amount as liquidated damages under Section 216(b); and (3) an additional amount for reasonable counsel fees under Section 216(b).
After hearing the testimony, examining the exhibits, the pleadings, briefs and proposed findings, this court makes the following Findings of Fact and Conclusions of Law;
1. At all times hereinafter mentioned, the defendant was and now is a Delaware corporation maintaining its principal office for the conduct of its business at 42 Broadway, County, City and State of New York.
2. Between January 31, 1955 and March 3, 1957, the defendant was engaged in business as principal passenger at 42 Broadway, County, City and State Lines, Lauro Lines and National Hellenic American Line, all foreign steamship corporations, and as a passenger ticket agent for Incres-Nassau Line, also a foreign steamship corporation.
3. In the conduct of its said business defendant maintained subsidiary offices throughout a number of the principal cities in the United States.
4. As such agent defendant promoted its business and the business of its principals by supplying travel agencies and its own subsidiaries located in the United States and Canada with blank passenger contract tickets used in connection with the sale of passage on its principals' vessels. It likewise supplied said agencies with literature and material, such as various steamship travel pamphlets, sailing lists, rate sheets, tags and labels, cruise literature, deck plans, posters and similar material used for display and promotional purposes.
5. Such material, mailed and shipped from the defendant's office to the offices of travel agencies throughout the United States and Canada and which consisted of printed promotional types of literature, was either caused to be printed by the defendant in New York for the account of the principals for distribution throughout the several states of the Union and Canada or printed by the defendant's principals in Europe who caused the material to be shipped to the defendant directly from Europe for like distribution.
6. In the conduct of its business and in promoting the steamship passenger business of its principals, defendant regularly and consistently used the United States mails and other media of transmission for sending material and instructions to the offices of travel agencies throughout the United States and Canada.
7. As an incident to defendant's general agency and as general passenger agent for the respective ocean steamship lines which it represented, as aforesaid, defendant realized a brokerage or commission on the sale of passenger tickets for such lines by all travel agencies throughout the United States and Canada, including sales made at its principal office and sales made at travel agencies throughout the State of New York.
8. Between January 31, 1955 and March 3, 1957, defendant employed the plaintiff as a mail and shipping clerk and as a chauffeur under an oral agreement whereby plaintiff was to perform certain services as said mail and shipping clerk and also as chauffeur of vehicles owned by the defendant and was to receive compensation for a work week of forty hours at the rate of time and a half for work in excess of forty hours.
9. As mail and shipping clerk, plaintiff worked with the various literature and advertising material, above mentioned, which was distributed by the defendant throughout the United States and Canada. Plaintiff physically handled such material, preparing and placing it in wrappers, envelopes and packages and addressing the same for dispatch via the United States mail and other media of transmission to travel agencies located throughout the United States and Canada.
10. As chauffeur, plaintiff operated defendant's station wagon and limousine in and about the State of New York, and on rare occasions outside the State of New York to the State of New Jersey, in the prosecution of defendant's business as a general passenger agent. Each morning during the work week plaintiff obtained one of the defendant's vehicles from a garage located at 363-365 Fourth Avenue, Brooklyn, New York, and was required to drive it either directly to defendant's office at 42 Broadway, New York City, above mentioned, or to the Beverly Hotel, Lexington Avenue and 50th Street, New York City, where one Capt. Mario F. Vespa, Vice-President of the defendant, resided and to drive Vespa to defendant's office. At times, plaintiff also drove the defendant's vehicles to piers located in the State of New York or in the State of New Jersey to pick up literature and other printed matter. Each evening the plaintiff drove the vehicle back to the garage in Brooklyn.
11. Plaintiff's monthly base wage was at the following rates:
The hourly overtime rate of compensation during the years of plaintiff's employment by defendant was as follows:
12. During plaintiff's period of employment, the defendant delegated to plaintiff the duty of keeping a record of the hours he worked, including overtime hours, and of reporting the same to the defendant. The defendant kept no independent record of the time worked by plaintiff other than weekly time slips made out by plaintiff and submitted to the defendant. The defendant paid plaintiff all wages as reflected by the weekly time slips prepared and submitted by plaintiff to defendant.
13. Plaintiff's time sheets, however, failed to reflect the work time he spent --
(a) In traveling from the garage in Brooklyn to the Beverly Hotel on those mornings when he took Capt. Vespa from the hotel to the office;
(b) In traveling directly from the garage to the office on those mornings when he did not take Capt. Vespa from the hotel to the office;
(c) In traveling from the office to the garage in ...