Delano v. Armstrong Rubber Co.

• Decision Date: 23 May 1950
• Citation: Delano v. Armstrong Rubber Co., 136 Conn. 663, 73 A.2d 828 (Conn. 1950)
• Court: Connecticut Supreme Court
• Parties: DELANO v. ARMSTRONG RUBBER CO. Supreme Court of Errors of Connecticut

Page 828

73 A.2d 828

136 Conn. 663

DELANO v. ARMSTRONG RUBBER CO.

Supreme Court of Errors of Connecticut.

May 23, 1950.

James F. Rosen, New Haven, for the appellant (plaintiff).

John W. Barclay, New Haven, with whom, on the brief, were Albert H. Barclay and Albert H. Barclay, Jr., New Haven, for the appellee (defendant).

Before BROWN, C. J., JENNINGS, BALDWIN, INGLIS, JJ., and ALCORN, Superior Court Judge.

BALDWIN, Judge.

The plaintiff brought suit to recover alleged unpaid overtime compensation, liquidated damages and attorney's fees under the Fair Labor Standards Act of 1938. 52 Stat. 1069, § 16(b), 29 U.S.C. § 216(b) [29 U.S.C.A. § 216(b)]. This act requires an employer to pay time and one-half for all time that an employee works in excess of forty hours a week, unless the employee is exempt under the act. 52 Stat. 1063, § 7, 1067, § 13(a)(1), 29 U.S.C. §§ 207, 213(a)(1) [29 U.S.C.A. §§ 207, 213(a)(1)]. The defendant concedes that it is subject generally to the operation of the act but alleges in a special defense that the plaintiff was exempt under § 13(a)(1) because, during all the time for which he makes claim, he was employed by the defendant in a bona fide executive or administrative capacity.

Acting pursuant to the power conferred by the act, the administrator established regulations which defined the term 'bona fide executive or administrative employee' as used in the act as follows: 'The term 'employee employed in a bona fide executive * * * capacity' in § 13(a)(1) of the 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 (c) 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 services 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 per cent of the number of hours worked in the workweek by the nonexempt employees under his direction: Provided, That this [subsection (f)] shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment.' 29 C.F.R. 541.1. These regulations have been recognized as constitutional and valid. Fanelli v. United States Gypsum Co., 2 Cir., 141 F.2d 216, 218; Walling v. Yeakley, 10 Cir., 140 F.2d 830, 832.

The trial court concluded that the plaintiff was a bona fide executive employee. The plaintiff does not except to the subordinate facts found by the court but attacks the conclusion as one that cannot be legally drawn from them. The defendant is a manufacturer of automobile tires. It hired the plaintiff to serve as a foreman in its tube department, a separate subdivision of its plant. The plaintiff worked as a foreman during all the time for which extra compensation is claimed. His job was to manage the department, in the course of which he directed the work, instructed the employees as to quantity and type of goods produced, transferred them from one job to another, set up work orders, inspected and criticized the work and was responsible for the proper functioning of the department. Employees were hired with his approval and discharged upon his recomendation. He determined the number of employees necessary to operate the department, instituted changes in job classifications and rates of wages and passed upon employees' time slips. He was responsible to his superiors for the quantity and quality of goods produced and to that end decided what quantities of materials were required, requisitioned what were needed and approved or disapproved what were received. On occasion when machines got out of order and he was off duty, he would come to the plant to help get them started.

The plaintiff alleges that certain subordinate facts found by the court compel a conclusion that he was not a bona fide executive employee. They are concerned with the method of determining the plaintiff's pay and the type of work he at times performed. At the beginning, the plaintiff received a basic weekly salary of $40 regardless of whether he reported for work each day or was home ill. This was increased from time to time up to $65. His basic salary was not subject to reduction because of any variation in the number of hours he worked. The plaintiff did get additional compensation based upon the time which he worked over the regular work week. The additional compensation and longer hours came about in this way: In the latter part of 1943, the defendant was operating its plant under a war-time schedule which extended the number of days worked from five to six, and finally to seven, days per week. The plaintiff's salary had originally been established on the basis of a forty-five-hour work week, and the defendant, wishing to increase the plaintiff's compensation for the longer hours he worked and to pay him fairly in relation to other employees below him in rank, sought and received, as the law required, approval from the salary stabilization unit of the United States Treasury for an increase whenever the plaintiff worked on Saturday or Sunday, or both days, as he sometimes did. The amount of the increase was first determined by dividing the number of hours of the plaintiff's regular work week into the amount of his salary and paying him an additional sum at the hourly rate thus determined for the number of hours worked Saturday, and double that rate for the hours worked Sunday. The total weekly pay was paid in one check. If the plaintiff was absent on any day from Monday through Friday for any personal cause except illness he did not receive extra compensation for working the following Saturday, and if he was so absent on two days, he did not receive extra compensation for working the following Saturday and Sunday.

This arrangement continued from November 1, 1943, until October 22, 1945. On the latter date the plaintiff's basic salary was fixed at $65 per week, the work week then being six days, and thereafter he received extra pay only for the seventh day. The amount of his compensation over and above his salary was computed by reference to his salary. It was determined by the hourly rate of his salary for the normal week. In that sense, therefore, the basis of his entire weekly compensation was the salary which had been agreed upon. The method of granting extra compensation to the plaintiff was not such as to require a...