Allen v. Atlantic Co.

HUTCHESON, Circuit Judge. Plaintiff, night operating engineer for many years at the defendant’s Macon plant, brought this suit for overtime claimed to be due him under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. At the conclusion of all the evidence, the District Judge directed a verdict for the defendant on the ground that the act did not apply to plaintiff because within the meaning of Sec. 13(a)1 of the Fair Labor Standards Act, he was during the time in question an “employee employed in a bona fide executive * * * capacity.” This appeal tests the correctness of that instruction. Here both appellant and appellee accept the administrator’s definition8 of “employee employed in a bona fide executive * * * capacity”, and the controversy is over whether it was correctly applied to the facts. Appellant concedes that the proof as to plaintiff’s activities brings him within subdivisions (B), (C), (D) and (E) of the definition. He insists, however, that it fails to bring him within subdivision (A), requiring that his primary duty be one of management, and subdivision (F), requiring that his hours of nonexempt work do not exceed twenty percent. Pointing out that the burden on an employer of proving that employees claiming overtime were executive employees exempt from the Fair Labor [763] ■Standards Act3 is satisfied only by proof of compliance with each subdivision of the definition, he insists that the state of the evidence as to compliance with subdivisions (A) and (F) required a verdict for plaintiff or at least made an issue for the jury. Appellee, denying this, insists that appellant’s own testimony as to his duties and as to what he did in the course of performing them leaves in no doubt that a directed verdict for defendant was demanded. As to compliance with subdivision (A) of the definition, it is sufficient to say, without burdening this opinion with a detailed statement of it, that the undisputed evidence, including that of plaintiff himself, brought plaintiff squarely within this subdivision. Jt left in no doubt that plaintiff was employed because of his special skill and ability as a refrigerating engineer, and that while he did have some manual tasks to perform, these tasks were simply incidents of his primary job or duty, that'of management of operations. As to subdivision (F), plaintiff did on direct examination roughly estimate that he spent two or three hours a day opening, closing and checking the valves, about an hour and a half a day repairing the machinery, and about an hour a day in oiling it, a total of four or five hours a day, or from 33 to 40 percent of the 12 hours a day he worked. On cross-examination, however, he made it quite clear not only that this testimony was intended to be just a rough guess, but that it was wholly incorrect.4 He also testified: Q. “Now you didn’t regularly do any kind of work that the men under you did, did you? A. No, sir”. Such manual work as he did, except for the extraordinary repairs which he was called upon to perform, was an incident to his job of supervision and was not work of a kind which would be normally performed by nonexempt employees. We are convinced that his testimony taken as a whole admits of only one conclusion, that his “hours of work of the same nature as that performed by non-exempt employees * * * under his direction” did not exceed 20 percent, that, indeed, they were greatly less than that. The record standing thus, a verdict for defendant was demanded. The judgment was right. It is affirmed. Footnotes [1] “The provisions of sections 6 and 7 shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator).” U.S.C.A. Title 29, § 213. [8] As originally promulgated, October 24, 1938, 29 C.F.R. 541.1, it reads: “The term ‘employee employed in a bona fide executive (and) administrative * * capacity’ in section 13(a) (1) of the act shall mean any employee whose primary duty is the management of the establishment, or a customarily recognized department thereof, in which he is employed, and who customarily and regularly directs the work of other employees therein, and who has the authority to hire and fire other employees' or whose suggestions and recommendations as to the hiring and firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight, and who customarily and regularly exercises discretionary powers, and who does no substantial amount of work of the same nature as that performed by nonexempt employees of the employer, and who is compensated for his services at not less than $30 [exclusive of board, lodging, or other facilities) for a workweek.” As amended October 24, 1940, it now reads: “Tbe term ‘employee employed in a bona fide executive * * * capacity’ in section 13(a) (1) of tbe act shall mean any employee— “(A) Whose primary duty consists of the management of the establishment in which he is employed or of a customarily recognized department or subdivision thereof, and “(B) Who customarily and regularly directs the work of other employees therein, and “(O) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight, and “(D) Who customarily and regularly exercises discretionary powers, and “(E) Who is compensated for his sendees on a salary basis at not less than $30 per week (exclusive of board, lodging, or other facilities), and “(F) Whose hours of work of the same nature as that performed by nonexempt employees do not exceed 20 percent of tbe number of hours worked in the workweek by the nonexempt employees under his direction; provided that this subsection (HO shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment.” [3] Helliwell v. Haberman, 2 Cir., 140 F.2d 833 (4); Schmidtke v. Conesa, 1 Cir., 141 F.2d 634 (1) and (2); Smith v. Porter, 8 Cir., 143 F.2d 292 (1) and (2); Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52 (8); Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, page 16. [4] Among' other things he testified that during all of the busy season (some 7 months), there was an oiler who did the oiling and that during the slack season there was only one machine in operation, that he had no duty to make any repairs other than emergency repairs, the day crew and day engineer kept the plant up and in good condition, that such emergency repairs were usually minor and that only a few, which took any appreciable time to fix, had occurred in the whole of the time in question.