Gorchakoff v. CALIFORNIA SHIPBUILDING CORPORATION, Civil Action No. 4293-RJ.

• Decision Date: 09 October 1945
• Docket Number: Civil Action No. 4293-RJ.
• Citation: 63 F. Supp. 309
• Parties: GORCHAKOFF v. CALIFORNIA SHIPBUILDING CORPORATION.
• Court: U.S. District Court — Southern District of California

63 F. Supp. 309

GORCHAKOFF v. CALIFORNIA SHIPBUILDING CORPORATION.

Civil Action No. 4293-RJ.

District Court, S. D. California, Central Division.

October 9, 1945.

Albert E. Coger and Weinstein & Bertram, all of Los Angeles, Cal., for Benjamin Gorchakoff, plaintiff.

Samuel S. Gill and Thelen, Marrin, Johnson & Bridges, all of Los Angeles, Cal., for California Shipbuilding Corporation, defendant.

McCORMICK, District Judge.

This is an action brought pursuant to Section 16(b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U.S.C.A. § 216(b), hereinafter called the Act, to recover overtime compensation, liquidated damages and attorney's fees claimed to be due and unpaid under Section 7(a) of the Act, 29 U.S. C.A. § 207(a).

The paramount question and, indeed, the crucial issue of the case for the major part of the relevant period of time is the nature of the work of the plaintiff under applicable law. In other words, does the evidence establish Mr. Gorchakoff to have been employed in a bona fide administrative capacity within Section 13(a) (1) of the Act, 29 U.S.C.A. § 213(a) (1), and Section 541.2 of the regulations of the administrator of the Act?

The foreign and interstate character of defendant's business, as well as the work of plaintiff while in defendant's employ are conceded by both parties to the action, and it is also stipulated that the ships built by defendant during plaintiff's service were constructed by defendant exclusively for the United States Maritime Commission under cost plus a fixed fee contract.

It also has been agreed by the parties that:

(1) From the week ending March 6, 1942, to April 25, 1942, plaintiff was employed by defendant at an hourly rate of $1.01;

(2) Between April 26, 1942, and July 17, 1942, plaintiff was employed by defendant at a monthly salary of $250;

(3) Between July 17, 1942, and December 12, 1942, plaintiff was not in the employ of defendant, but was engaged as manager of the "Cal-Ship Club," apparently an organization frequented by workers in the shipyard;

(4) Between December 12, 1942, and February 13, 1943, plaintiff was again employed by defendant, at a monthly salary of $300;

(5) Between February 14, 1943, and June 26, 1943, plaintiff was employed by defendant, at a monthly salary of $325.

It is settled beyond dispute that before exemptions under Section 13(a) (1) of the Act are invocable the status of a particular worker in question must conform to the terms of the statute and the effective and applicable regulations of the administrator. Smith v. Porter, 8 Cir., 143 F.2d 292.

It is also clear that the burden rests on the plaintiff to prove by a preponderance of the evidence that he did not receive the wages that he was entitled to receive under the Act and to show by evidence not resting upon conjecture the extent of overtime work for which unpaid compensation is demanded. Mt. Clemens Pottery Co. v. Anderson et al., 6 Cir., 149 F.2d 461. And while it is our duty in considering actions under Wage and Hour legislation to adopt a liberal construction of the record to the end that the remedial aspects of the Act may not be whittled away by technical niceties, nevertheless in a concrete action before the court for a judgment for overtime pay it does not satisfy the requirements of the Act for the employee to base his right of recovery on a mere estimated average of overtime worked. The judgment must rest upon something more reliable and certain than conjecture and speculation.

As to the several work weeks ending March 6, 1942, to April 25, 1942, the plaintiff having been employed on an hourly wage, no question arises here as to any exemption features of the Act. The nature of the work performed by the plaintiff at such times was similar but not identical to the services performed by him later when he was under salary compensation. During the early period, as well as throughout his employment with defendant, the plaintiff's work hours were necessarily irregular and at times extended beyond applicable maximum hours, particularly on behalf of the defendant in entertainments and shows carried on to promote the sale of bonds among the personnel of the shipyard and also in arranging recreational events of the defendant in bowling alleys and other places of amusement, as part of the program of the defendant corporation. Such work was done frequently during this early period of time after the plaintiff "clocked out" when leaving the shipyard premises. We think that the plaintiff has sufficiently sustained his right to recover the amounts shown on Exhibit 3 attached to plaintiff's "Pretrial Statement of Facts and Brief" for the eight items covering the weeks ending March 6, 1942 to and including April 25, 1942.

The unrefuted oral testimony of the plaintiff as to hours worked during such period of time in conjunction with the time card records kept by the defendant in the same period sufficiently establish unpaid overtime during such period, and as the salary elements of exemption did not exist during such period, a recovery by the plaintiff is sufficiently established.

There are two other factors shown by the evidence during the early pertinent period of plaintiff's work which support the plaintiff's claim for unpaid overtime: (1) The compensatory character, under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, and Armour & Co. v. Wantock, 323 U.S. 129, 65 S.Ct. 165, of eating periods at which business of the defendant corporation was discussed by plaintiff and other supervising personnel of the shipyards, and also of "waiting" time; (2) the inference to be drawn from the interoffice memorandum of March 28, 1942, defendant's Exhibit "E" herein. This memorandum is the only memorial shown by the record before us of any claim for overtime pay.

We have been unable to clearly identify from the record before us two admittedly chargeable items of $12.12 in the week ending April 4, 1942. These amounts were undoubtedly paid to the plaintiff and received by him, and we think they should be deducted from the aggregate of the eight items for which judgment is ordered as aforesaid.

We turn to consider all work periods of the plaintiff subsequent to April 25, 1942, in order to determine whether plaintiff's services during such periods properly fall into the category of administrative employment.

It is well settled that before exemptions under the Act are allowable the facts and circumstances in proof in the specific case before the court must preponderate to bring the affected employee clearly within the terms of the claimed exemptions as defined and delimited by the Act and the regulations promulgated thereunder. Consolidated Timber Co. v. Womack, 9 Cir., 132 F.2d 101; Smith v. Porter, supra. We think that the record before us justifies no other conclusion than that at all times between April 25, 1942 and June 26, 1943 the plaintiff while performing services for defendant corporation was an employee employed in a bona fide administrative capacity in the business of the defendant corporation.

A primary essential in the classification of a worker as an administrative employee is that he be compensated for his services on a salary basis of not less than $200 per month (exclusive of board, lodging, or other facilities). This basic requirement has been complied with as shown by the record in this action and deductions from plaintiff's salary for absences from work did not convert the contract of employment between plaintiff and defendant into an employment contract at an hourly wage so as to defeat the applicability of the statutory exemptions to the plaintiff's position. Cf. Smith v. Porter, supra.

There are conflicts in the evidence as to the nature and scope of plaintiff's work and authority, not only during the periods subsequent to April 25, 1942, but also prior to that date during his employment with the defendant, and in this situation the court should consider the plaintiff's education, business experience and contacts as helpful aids to determine from the evidence the proper classification of the positions filled by the plaintiff under the Act in the defendant's shipbuilding organization.

It should be noted that for an employee to attain or retain an administrative status under the Act it is not necessary that he be constantly or continuously engaged in work of a non-manual nature or wherein he is at all times required to be doing work which necessitates the exercise of discretion and independent judgment.

The rationale of the principle announced is aptly described in the pamphlet issued by the Wage and Hour Division of the Department of Labor, effective October 24, 1940, and entitled "Executive, Administrative, Professional * * * Outside Salesman, Redefined." Referring to requirements of Section 541.2 of the Regulations as to "Administrative Assistants" and "Staff Employees," it is stated:

"In modern industrial practice there has been a steady and increasing use of persons who assist an executive in the performance of his duties without themselves having executive authority. Typical titles of persons in this group are executive assistant to the president, confidential assistant, executive secretary, assistant to the general manager, and administrative assistant. It may be noted that such positions have counterparts in Government service.

"Generally speaking, such assistants are found in large establishments where the official assisted has duties of such scope and which require so much...