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DONOVAN v. KASZYCKI & SONS CONTRS.

December 21, 1984

RAYMOND J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
KASZYCKI & SONS CONTRACTORS, INC., A Corporation and WILLIAM KASZYCKI Individually and as President, Defendants.



The opinion of the court was delivered by: SPRIZZO

OPINION & ORDER

SPRIZZO, D.J.:

 Plaintiff Donovan, United States Secretary of Labor, brings this action pursuant to section 17 of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 217, to enjoin defendants Kaszycki & Sons Contractors, Inc. ("Kaszycki & Sons") and William Kaszycki ("Kaszycki") from (1) violating sections 6(a), 7(a), 11(c) and 15(a) of the FLSA, 29 U.S.C. §§ 206(a), 207(a), 211(c) & 215(a), and (2) from withholding wages due defendants' employees pursuant to sections 6(a) and 7(a), and for liquidated damages pursuant to section 16(c) of the FLSA, 29 U.S.C. § 216(c). The action was tried to the Court without a jury. This Opinion and Order constituted the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a).

 I

 FINDINGS OF FACT

 Defendant Kaszycki & Sons was at all relevant times a New York corporation engaged in the business of demolition. Plaintiff's Pre-Trial Order ("PTO") PV; *fn1" Plaintiff's Exhibit 31 ("P.Ex. 31") at 10-12. Kaszycki & Sons is an enterprise

 engaged in commerce or the production of goods for commerce . . . in that its employees were engaged in commerce or the productionof goods for commerce, or handled or otherwise worked on goods or materials that have been moved in or produced for commerce, and it has an annual gross volume of sales made or business done of not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated) . . . [and] in that its employees were engaged in the business of construction or reconstruction or both.

 PTO at V. At all relevant times defendant Kaszycki was president of Kaszycki & Sons, P.Ex. 31 at 11, and ran the corporation, id. at 12. Kaszycki formed Kaszycki & Sons for the purpose of contracting with Trump Equitable Fifth Avenue Company ("Trump") to demolish the Bonwit Teller building locates at Fifth Avenue and 56th Street in Manhattan. Id. at 10-11, 16-17. *fn2"

 Prior to forming Kaszycki & Sons, Kaszycki owned and ran at least two other companies, hired employees for those companies, and paid his employees minimum wages and overtime compensation. Id. at 6-10. With respect to another demolitiion job performed just before the Trump job, however, defendant testified he was not aware of how may hours his employees worked, how they were paid, or whether the received compensation for overtime. See id. at 28-33.

 The demolition work on the Bonwit Teller building commenced on or about January 29, 1980, see P.Ex. 31 at 16, and was completed on or about June 21, 1980, see Trial Transcript ("Tr.") at 96. Kaszycki hired Zbigniew Goryn ("Goryn") as supervisor of the job, see Tr. at 5-6; P.Ex. 31 at 22, 33, and Bodgan Krawczynsksi ("Krawczynski") as timekeeper, see Tr. at 55-56; P.Ex. 31 at 43-44, 90. Kaszycki was generally on the job site daily, and at least once a week, unless he was out-of-town. See P.Ex. 31 at 39, 48; Tr. at 71.

 Kaszycki, and on his authority Goryn and Krawczynski, hired employees to do the work under the Trump contract. See, e.g., Tr. at 72-73, 175; P.Ex. 31 at 33-35, 39, 46. *fn3" Among those employees were all of the persons listed in Appendix A to this Opinion and Order ("the employees"), see Tr. at 115-16. Defendants also employed members of Local 95 of the Housewreckers Union ("the union employees"). P.Ex. 31 at 35, 37, 61 Exhibit 2. *fn4" Defendants' recordkeeping and payment of wages with respect to the union employees is not at issue in the instant action. In fact, the evidence demonstrates that defendants kept complete records for the union employees and timely paid them full regular and overtime compensation, see Tr. at 104-05; P.Ex. 31 at 66-73, 97, Exhibit 3, in compliance with the same provisions of the FLSA that defendants are alleged to have violated with respect to the non-union employees. Based on the foregoing, the Court finds that defendants were or reasonably should have been aware of the FLSA requirements at issue herein with respect to minimum wage, overtime compensation, and recordkeeping.

 The non-union employees worked on two twelve-hour shifts. The first shift, or day shift, generally ran from 6:00 a.m. to 6:00 p.m., and the second shift, or night shift, ran from 6:00 p.m. to 6:00 a.m., seven days a week. E.g., Tr. at 7-9, 72; P.Ex. 31 at 42-43. *fn5" Kaszycki was aware that the employees worked these hours, see P.Ex. 31 at 42-43, and that they were therefore entitled to be paid for overtime, id. at 58. Goryn supervised the day shift, e.g., Tr. at 16, 48; P.Ex. 31 at 35, 41 and Krawczynski supervised the night shift, e.g., Tr. at 9, 48, 60; P.Ex. 31 at 43-44. Each kept records of the hours worked by the men on their respective shifts. E.g., Tr. at 9, 56; P.Ex. 31 at 41.

 Goryn's time record for first shift employes, which was lost, was reconstructed for purposes of this litigation in P.Ex. 33. See Tr. at 24-27. Krawczynski's record of hours worked by second shift employees is reconstructed in P.Ex. 35. See Tr. at 57-62. Kaszycki testified that he had been at least Krawczyski's time records. P.Ex. 31 at 46. Some of the employees kept records of their own hours worked and wages received or owed. *fn6" Kaszycki, Goryn and Krawczynski all testified that Goryn nd Krawczynski were responsible for keeping the time records. See Tr. at 9-10, 56; P.Ex. 31 at 41.

 It appears, however, that defendants, the employers, neither received nor kept these records, and that no formal company records were kept by defendants in the company offices or in any central recordkeeping office, with respect to these employees, see P.Ex.31 at 58-59, 73-74, although as Kaszycki knew, the company recordkeeper did keep records with respect to the union employees. See Tr. at 101, 170; P.Ex. 31 at 35-36, 67-68.

 The records kept by Goryn and Krawczynski did not contain information with respect to Social Security numbers, see Tr. at 74, 77-78, 99; P.Ex. 31 at 74, although some employees had Social Security numbers. *fn7" There was also no record of employees' addresses. See Tr. at 99.

 Defendants agreed to pay these employees $4 to $6 an hour, depending on their skills and the work they performed. See, e.g., Tr. at 10, 39-40; P.Ex. 31 at 35; see also P.Ex. 13 at 13. All these agreements appear to have been oral, and there were no written contracts with respect to employment or rate of pay. See, e.g., P.Ex. 31 at 84; P.Exs. 1-14, 16, 18, 20, 22-23, 25-27, 29, 40. No provision was made for overtime compensation with respect to hours worked in excess of forty hours in any workweek. Tr. at 89. *fn8"

 Defendants did not pay the employees on a weekly or regular basis, but paid them sporadically, if at all, and in amounts less than was due, *fn9" a fact which Kaszycki admitted. P.Ex. 31 at 51. Kaszycki would give money to Goryn and Krawczynski to pay the employees on their respective shifts. See, e.g., Tr. at 34-35; P.Ex. 31 at 32, 48, 95-96. On occasion, Kaszycki paid some employees directly, sometimes by personal check, but in most instances, he gave money to Goryn and Krawczynski for that purpose. See, e.g., Tr. at 43; P.Ex. 31 at 48. *fn10"

 Kaszycki kept no records of the amount of money given to Goryn or Krawczynski to pay the employees. See P.Ex. 31 at 49. While he testified that his secretary was aware of the amounts he took for this purpose, there is no record relecting this. See id. at 50. However, Goryn kept a book, placed in evidence as P.Ex. 32, in which he recorded the wages due and evidence as P.Ex. 32, in which he recorded the wages due and monies paid to the day shift employees, see Tr. at 13, and Krawczynski kept a record, P.Ex. 37, of the wages owed the night shift employees, see Tr. at 67-68; P.Ex. 22 at 14; P.Ex. 40 at B-25, B-46. Krawczynski also prepared a record of money owned to first shift employees, P.Exs. 34 and 37A, apparently prepared at Kaszkycki's request. See Tr. at 63-65, 68. Kaszycki knew of the arrearage in wages due to employees, and discussed the problem with both Goryn and Krawczynski, see Tr. at 32-33, 71, and with the employees themselves. See, e.g., P.Ex 31 at 51-52, 101. *fn11"

 James Dondzil ("Dondzil"), a compliance officer for the Wage and Hour Division of the Department of Labor, conducted an official investigation of Kaszycki & Sons and William Kaszycki with respect to the demolition job, for the period of January to June, 1980. Tr. at 96-97. In the course of this investigation, Dondzil requested from defendants all employee payroll records. Defendants gave Dondzil records regarding the union employees, but no records were produced with respect to the non-union employees, including those listed in Appendix A. See Tr. at 100; P.Ex. 31 at 73. The records kept by Goryn and Krawczynski were not produced by the defendants, Tr. at 99-100, but were obtained directly from Goryn and Krawczynski, id. at 142-43.

 Dondzil and two assistants interviewed approximately twenty-six employees with respect to, inter alia, their place and period of employment, the amount they were supposed to be paid, the amount they actually were paid, and whether or not they received overtime compensation. In the course of this litigation, twenty-nine employees were deposed with respect to the same topics. See Tr. at 97-98.

 The employee interview statements, compiled in P.Ex. 40, and the depositions, P.Exs. 1-29, along with the deposition testimony of defendant Kaszycki, the trial testimony, and records kept by Goryn and Krawczynski, all demonstrate that defendants failed to pay the employees the required wages and overtime compensation. These amouns which remain due and owing to the employees were calculated by Dondzil from all the evidence, and are set forth in P.Ex. 38 and summarizedin P.Ex. 39 and Appendix A to this Opinion. Defendants do not appear to dispute in their post-trial papers that these amounts are due and owing to ...


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