Kupperman v. M. & J. BECKER, INC.

• Decision Date: 15 August 1952
• Docket Number: No. 209,Docket 22228.,209
• Citation: 198 F.2d 765,40 ALR 2d 324
• Court: U.S. Court of Appeals — Second Circuit
• Parties: KUPPERMAN v. M. & J. BECKER, Inc.

40 ALR 2d 324, 198 F.2d 765 (1952)

KUPPERMAN v. M. & J. BECKER, Inc.

No. 209, Docket 22228.

United States Court of Appeals, Second Circuit.

Submitted April 8, 1952.

Decided August 15, 1952.

Irving Rozen, New York City, for plaintiff-appellant.

Morris M. Marcus, New York City, Friedman & Friedman, Brooklyn, N. Y., for defendant-appellee.

Before CHASE, BIGGS, and CLARK, Circuit Judges.

BIGGS, Circuit Judge.

On September 4, 1947, the plaintiff, Kupperman, brought suit in the court below to recover from his employer, the defendant, M. & J. Becker, Inc., a New York City manufacturer of hats and caps, overtime wages alleged to be due him and an additional equal amount by way of liquidated damages, pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216. Jurisdiction was founded on Section 16(b) of the Act and on 28 U.S.C. § 1337.¹ The defendant interposed as its principal defense the contention that Kupperman fell within the exemptions of Section 13 of the Act, 29 U.S.C.A. § 213, which provide that "(a) The provisions of sections 206 and 207² of this title 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 Administrator³)". The defendant's position was and is that Kupperman at all times was employed by it in a bona fide executive capacity within the meaning of the exemption provided by Congress in the statute and as defined by the Administrator.

The complaint sought recovery fo the whole period of the plaintiff's employment by the defendant, commencing in the third week of April 1939 and ending in August 1947. The court below restricted recovery, if there should be any, to the period commencing September 4, 1941, the earliest effective date within New York's six-year statute of limitations. See N. Y. Civil Practice Act, Section 48.⁴ A further restriction on the period involved was imposed when it appeared from the evidence that in May 1945 Kupperman had become a union employee and had renounced all claim to unpaid overtime wages earned thereafter.

The court below, as the trier of the facts,⁵ concluded that the defendant had met the burden imposed on it to prove that the plaintiff was employed in a bona fide executive capacity as defined by the Administrator, Wages and Hours Division, United States Department of Labor, during the period September 4, 1941 to May 1945.⁶ The court took the position that the defendant had the obligation to, and did, prove that the plaintiff's employment fell within each and every requirement of an "executive" as required by the Administrator's Regulations, Section 541.1, 29 U.S.C.A. Appendix, § 541.1. See Fanelli v. United States Gypsum Co., 2 Cir., 141 F.2d 216; Stanger v. Vocafilm Corp., 2 Cir., 151 F. 2d 894, 162 A.L.R. 216; McComb v. Utica Knitting Co., 2 Cir., 164 F.2d 670. We set forth the requirements of the pertinent Regulations in the margin.⁷ The court below entered judgment in favor of the defendant, and the appeal at bar followed. The only substantial question before us is whether the court below has made the necessary findings of fact and whether any finding of fact was clearly erroneous. See Rule 52(a), Fed.Rules Civ.Proc. 28 U.S. C.A., and McComb v. Utica Knitting Co., supra.

The plaintiff testified that in April 1939 he was unemployed and on relief; that in the latter part of April he commenced work at the defendant's place of business at 2961 Atlantic Avenue, Brooklyn; and that he continued there throughout the period here in question. Kupperman further stated that in 1941 he was employed by the defendant in its "Parkahood" department, existing on the lower warehouse floor of the building occupied in part by the defendant, and that he was subsequently moved upstairs to its principal "Cap-making" department late in 1942 when the defendant stopped making parkahoods. The plaintiff said that he was a cutter of caps by trade, and testified to long hours of weekday and weekend overtime employment as a cutter. He admitted, however, that on the lower warehouse floor he handed out work to women there employed as cutters and kept the records of their employment; that the defendant was organized as a union shop and that its employees were required to punch time cards; that he, Kupperman, did not join a union until May 1945, when, for the first time, he was issued a time card; and that he was on such terms with Jacob Becker, the president of defendant, that he received several Christmas bonuses and rode home from work each day in President Becker's automobile.

Kupperman also asserted that the records of the defendant surely had been falsified since he was listed therein as a foreman and shown to have worked only a 40 hour week. On cross-examination the plaintiff admitted that he had received a sum of money in settlement of a suit he had brought in the Municipal Court of New York against Bushwick Mills, Inc. for wages for August through October 1942. He explained that he was promised compensation by Bushwick Mills to speed performance by the defendant of a contract to make army caps.⁸ The plaintiff testified that he had brought suit against Bushwick Mills, Inc. because "Mr. Becker said to me, `I am on the outs with Bushwick Mills, Inc. and I would like to get even with Margolin.'"⁹ and because "At the time I was really mad. I was not getting the money."

Licato, an operator of a sewing machine on the defendant's lower floor, testified that Kupperman was employed on that floor to "* * * take care of the girls, and he used to cut out work once in a while." Licato also said that the plaintiff assigned work to the women employees, kept records, gave out payroll envelopes, was consulted about complaints, and that she was in fact hired by him.

President Becker testified that he had hired Kupperman "to be a foreman," that "He came up to manage the place," and that a cutter was not in fact needed. Becker stated that the plaintiff hired and fired the "Parkahood" girls, and fixed their wages; that Kupperman rarely worked after the usual quitting time of 5:00 P.M.¹⁰ and then came upstairs to wait for his ride home; and that he received pay for his occasional weekend work at Ozone Park where Becker had another place of business, or was paid by Bushwick Mills, Inc., and for his Sunday work at 2961 Atlantic Avenue during August through October 1942. Becker testified that the plaintiff also received pay for periods when he was sick and did not work, which would not have been the case had he been employed by the hour; that throughout the period in question Kupperman remained free of the union because he was a foreman; and that it was for this reason that the plaintiff was entitled to bonuses. Becker explained that when the plaintiff moved upstairs from the "Parkahood" department he "helped the foreman," "gave out the goods to cut," "walked around the floor," "watched * * * the packing," and only worked at cutting "a couple of times a week, a couple of hours a day." Becker also stated that when the plaintiff moved upstairs he served as co-foreman with Steinberg, conceded by all to have been a foreman.¹¹

Steinberg testified that the plaintiff "prepared the material for the cutters" and that he did not remember seeing the plaintiff himself employed in cutting at any time. This testimony was corroborated by Brown, a cutter, who indicated that the plaintiff was not needed as a cutter, for he, Brown, by operating a "clicker" machine was, together with other cutters, able to supply sufficient cut goods for the sewers. Schurman, bookkeeper and sister-in-law to Becker, stated in further corroboration that Kupperman was a foreman and not a cutter and that her records were correct in showing that he had not earned compensable overtime.

The foregoing is ample to support the following findings of fact made by the court below:

"9. Plaintiff in many instances remained after working hours for the sole purpose of obtaining a ride home in the automobile of Becker, his employer.

"10. Plaintiff never spent any considerable time at defendant\'s establishment on Saturdays or Sundays or before office hours, except possibly to lay out work for the other employees to do.

"11. Plaintiff\'s primary duty consisted in the management at first of the so-called Parka hood department on the first floor, and afterwards as foreman on the upper floor.

"12. As part of his duties plaintiff customarily and regularly directed the work of several employees. Plaintiff also had the right to hire and fire employees and he customarily and regularly exercised discretionary power.

"14. Plaintiff did some cutting from time to time but the time spent on such activity amounted to only a very small fraction (less than 20 per cent) of the time spent on other duties."

It will be observed, therefore, that the court below, item by item, has made all necessary findings, save one, as to the qualifications of an executive as required by the Regulations, paragraphs (a) through (f), Section 541.1, 29 U.S.C.A. See footnote 7, supra. There was ample evidence to support the findings made. Indeed, the weight of the evidence appears to favor the defendant's contentions for, as noted by the court below, the fact that the plaintiff did not join the union until 1945, a date lying outside the period with which we are concerned, is very persuasive. It was indeed unlikely that Kupperman's tasks became less managerial in character when he was moved to the defendant's principal manufacturing floor for his salary continued to rise steadily.¹²

But one essential finding was not made by the court below, viz., that relating to the plaintiff's salary rates throughout the whole of the critical period. If the plaintiff received less than $30 a week he would not fall within the purview of earlier subparagraph "(f)," applicable during the period...