Blackmon v. Brookshire Grocery Co.

Decision Date22 January 1988
Docket NumberNo. 86-2904,86-2904
Citation835 F.2d 1135
Parties28 Wage & Hour Cas. (BN 718, 108 Lab.Cas. P 35,018 Donald BLACKMON and Richard Glen DeYoung, Plaintiffs-Appellees, v. BROOKSHIRE GROCERY COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Stephen W. Smith, Robert S. Bambace, Fulbright & Jaworski, Houston, Tex., for defendant-appellant.

Jackie Cox, R. Daryll Bennett, Longview, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, POLITZ, and JOLLY, Circuit Judges.

POLITZ, Circuit Judge:

Donald Blackmon and Richard Glen DeYoung, meat market managers in stores owned by Brookshire Grocery Company, invoked the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Secs. 201-219, against their employer, seeking overtime wages. Following a bench trial, the district court found Blackmon and DeYoung to be non-exempt employees entitled to overtime wages for all hours worked over 40 in any workweek. The court further found Brookshire to be in good faith and denied liquidated damages. Back wages were allowed for a three-year period and attorney's fees were awarded. Brookshire appeals. We affirm in part, vacate in part, and remand for recomputation of the overtime premium due, and entry of an appropriate judgment.

Background

DeYoung became a meat market manager for Brookshire in 1980. Blackmon joined that select group in 1982. They were promoted with the understanding that they would be paid a fixed weekly salary, and would work whatever number of hours were required to get the job done. Each was aware that the fixed weekly compensation would not fluctuate with the hours worked.

Prior to their promotion each was a journeyman meatcutter, a craft-level reached after successful completion of the required apprenticeship. With the new positions came new obligations requiring additional talents and efforts. They could no longer devote all of their time to the practice of their meatcutting craft, for they then had certain management-related responsibilities.

As meat market managers each was responsible for ordering and merchandising the product, maintaining product quality and cleanliness in the meat market area, evaluating applicants for employment in the meat market, orienting, monitoring, and counseling new employees, and scheduling work times and assignments. For both, however, the principal duty remained the preparation of the product for sale. That duty encompassed everything from unloading trucks to cutting, wrapping, displaying, and rotating the meat; all being routine, journeyman meatcutter tasks.

Dissatisfied with the irregular but consistently long hours, they first sought the assistance of the Department of Labor and then filed the instant suit, seeking overtime compensation, liquidated damages, and attorney's fees. Brookshire maintains on appeal that Blackmon and DeYoung were exempt as either executive or administrative employees and, in any event, that the district court erred in determining the period of payment and the computation methodology.

Analysis

Brookshire's challenge to the district court's factual findings relative to work tasks and responsibilities founders unless it can demonstrate that those findings are clearly erroneous. Fed.R.Civ.P. 52(a). The "determination as to whether an employee is exempt under the Act is primarily a question of fact which must be reviewed under the clearly erroneous standard ...." Cobb v. Finest Foods, Inc., 755 F.2d 1148, 1150 (5th Cir.1985). An appellate court may reverse such findings only when "a review of the entire evidence leaves us with 'the definite and firm conviction that a mistake has been committed.' " Id., quoting United States v. United States Gypsum Co., 333 U.S. 364, 397, 68 S.Ct. 525, 543, 92 L.Ed. 746 (1948).

Exemptions from the FLSA are to be construed narrowly against the employer, Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), who carries the burden of proof to establish the exemption. See Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966).

There are two tests for determining whether a person qualifies as an exempt executive, the long test, 29 C.F.R. Sec. 541.1, and the short test, 29 C.F.R. Sec. 541.119. The long test requires that the employee be principally engaged in management, direct the work of two or more employees, have authority to hire and fire, regularly exercise discretionary powers, be paid at least $155 per week, and not devote more than 40% of the workweek to activities not closely or directly related to management. The short test qualifies an employee as an executive if the employee is not a mechanic, carpenter, or other craftsman, and earns more than $250 per week.

The district court found that Blackmon and DeYoung were not exempt under the long test because their primary job was cutting meat, not managing the market, and they spent more than two-thirds of each workweek in non-management activities. The court found that the short test afforded Brookshire no surcease because Blackmon and DeYoung were craftsmen regularly and routinely practicing their meatcutting craft. These findings by the trial court are supported by substantial evidence and thus are not clearly erroneous. These findings control the disposition of this appeal.

Brookshire also advances the claim that Blackmon and DeYoung were exempt as administrative employees. 29 C.F.R. Sec. 541.2. That exemption requires that the employee's primary duty be "[t]he performance of office or nonmanual work directly related to management," 29 C.F.R. Sec. 541.2(a)(1). The district court's factual finding that the plaintiffs' principal duty was cutting meat and that they devoted more than 40% of each workweek to non-administrative tasks negates this contention. 29 C.F.R. Sec. 541.2(d); 29 C.F.R. Sec. 541.214.

The record sufficiently supports the district court's finding that Blackmon and DeYoung were non-exempt employees and, as such, entitled to overtime compensation under Section 7 of the FLSA, 29 U.S.C. Sec. 207. We affirm that portion of its judgment. However, an intervening decision of this court, Peters v. City of Shreveport, infr...

To continue reading

Request your trial
84 cases
  • Gellhaus v. Wal–mart Stores Inc.
    • United States
    • U.S. District Court — Eastern District of Texas
    • March 10, 2011
    ...(citing Dalheim, 918 F.2d at 1224); accord Heidtman v. Cnty. of El Paso, 171 F.3d 1038, 1041 (5th Cir.1999); Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1137 (5th Cir.1988); see 29 C.F.R. §§ 541.1–.3 (2003). Due to the “confusing, complex and outdated” nature of these regulations, th......
  • In re Texas Ezpawn Fair Labor Standards Act Lit.
    • United States
    • U.S. District Court — Western District of Texas
    • June 18, 2008
    ...found at 29 C.F.R. § 778.114. According to EZPawn, the United States Court of Appeals for the Fifth Circuit's decision in Blackmon v. Brookshire Grocery Company requires that, in the event Plaintiffs establish liability, they are only entitled to half of their hourly rate of pay for each ho......
  • O'Neill v. Mermaid Touring Inc., 11 Civ. 9128(PGG).
    • United States
    • U.S. District Court — Southern District of New York
    • September 10, 2013
    ...530 F.3d 1224, 1230–31 (10th Cir.2008), Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 39 (1st Cir.1999); and Blackmon v. Brookshire Grocery Co., 835 F.2d 1135 (5th Cir.1988), while many district courts have determined that the FWW methodology should not be applied in a misclassification case......
  • Cash v. Conn Appliances, Inc.
    • United States
    • U.S. District Court — Eastern District of Texas
    • November 18, 1997
    ...figure and the amount of overtime compensation actually paid.22 See Opinion Letter No. 945; see also Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1138 n. 1 (5th Cir.1988); cf. Opinion Letter No. 1010 ("For purposes of administrative settlement only, back are computed in such a workwee......
  • Request a trial to view additional results
6 books & journal articles
  • Wages, Hours, and Overtime
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 1 - 2016 Part III. Employee Compensation, Safety and Benefits
    • July 27, 2016
    ...Samson v. Apollo Resources, Inc., 242 F.3d 629 (5th Cir.) (same), cert. denied, 534 U.S. 825 (2001); Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1138-39 (5th Cir. 1988) (discussing Yadav v. Coleman Oldsmobile, Inc., 538 F.2d 1206 (5th Cir. 1976) (district court correctly applied regu......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2016 Part VIII. Selected Litigation Issues
    • July 27, 2016
    ...Fire Fighters Assoc. of Dallas v. City of Dallas , 19 F.3d 992 (5th Cir. 1994), §§22:2.A.2, 22:6.C.3 Blackmon v. Brookshire Grocery Co. , 835 F.2d 1135 (5th Cir. 1988), §§9:1.C, 9:3.G, 9:3.H.2 Blackmon v. Pinkerton Security & Investigative Servs. , 182 F.3d 629 (8th Cir. 1999), §13:4.D.1.b ......
  • Wages, Hours, and Overtime
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 1 - 2014 Part III. Employee compensation, safety and benefits
    • August 16, 2014
    ...v. Apollo Resources, Inc. , 242 F.3d 629 (5th Cir.) (same), cert. denied , 534 U.S. 825 (2001); Blackmon v. Brookshire Grocery Co. , 835 F.2d 1135, 1138-39 (5th Cir. 1988) (discussing regulations); Yadav v. Coleman Oldsmobile, Inc. , 538 F.2d 1206 (5th Cir. 1976) (district court correctly a......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2014 Part VIII. Selected litigation issues
    • August 16, 2014
    ...Fire Fighters Assoc. of Dallas v. City of Dallas , 19 F.3d 992 (5th Cir. 1994), §§22:2.A.2, 22:6.C.3 Blackmon v. Brookshire Grocery Co. , 835 F.2d 1135 (5th Cir. 1988), §§9:1.C, 9:3.G, 9:3.H.2 Blackmon v. Pinkerton Security & Investigative Servs. , 182 F.3d 629 (8th Cir. 1999), §13:4.D.1.b ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT