Jones v. Bethlehem-Fairfield Shipyard, Civ. A. No. 3006.

• Decision Date: 22 December 1947
• Docket Number: Civ. A. No. 3006.
• Citation: 75 F. Supp. 86
• Parties: JONES v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc.
• Court: U.S. District Court — District of Maryland

75 F. Supp. 86

JONES v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc.

Civ. A. No. 3006.

District Court, D. Maryland.

December 22, 1947.

W. LeRoy Ortel and Edwin S. Panetti, both of Baltimore, Md., for plaintiff.

Marbury, Miller & Evans, Wm. L. Marbury and Charles C. G. Evans, all of Baltimore, Md., for defendant.

CHESNUT, District Judge.

The plaintiff in this case has sued to recover additional compensation for overtime work in accordance with the Fair Labor Standards Act, 29 U.S.C.A. § 216(b). The principal defense is that the plaintiff was in an exempt class under section 213(a), which provides in part "The provisions of sections 206 and 207 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 Administrator)." Italics supplied.

The defendant contends that the plaintiff was employed in an executive or administrative capacity. In 1940 the Administrator published regulations defining the terms executive and administrative capacity which are set out in the margin.¹

The case has been heard upon the complaint, answer, evidence and arguments of counsel. From the evidence the court makes the following findings of fact.

Findings of Fact

The Bethlehem-Fairfield Shipyard, Inc., was a subsidiary of the Bethlehem Steel Company organized and operated shortly before and during the last war, for the purpose of building ships (largely Liberty Ships) for the United States Maritime Commission. It acquired and operated several plants in and about the Fairfield-Curtis Bay area of the Baltimore City Harbor. The several plants occupied about 244 acres of ground with numerous buildings and shipways, including a fabricating plant of 41 acres and the shipbuilding plant of 138 acres. It employed about 45,000 employees, men and women. It operated three suits of employees each on an eight-hour basis, but many employees worked more than 40 hours a week. A great majority of all its employees were paid for overtime work in accordance with the Act.

For the preservation of order on the premises and to facilitate the smooth and proper operation of this very large war industry, the management of the Company found it necessary to organize a separate department known as the Guard Department consisting of 500 to 600 employees. This was set up on military lines and the several employees in this department were classified as (1) private guards; (2) corporals; (3) sergeants; (4) lieutenants; (5) captains, all under an official known as the Chief of Police. This whole police force was organized into six companies, three for the fabricating and three for the shipbuilding plant, the employees at each working on eight-hour shifts.

The guard department was in turn a part of a somewhat larger department known as the Plant Protection Department, consisting of private police and firemen, both departments responsible to the Chief of Plant Protection Department, the function of which was to protect the shipyard from crime, disorder and sabotage and to be on the alert for fires or any other danger. During a substantial portion of the period in suit the members of the guard department were also made auxillary members of the Coast Guard.

In general, the privates of the guard department patrolled posts assigned to them by their superiors, attended at the several gates where the large number of employees on different shifts from time to time entered the plant, to see that the time clocks were properly punched, and operated as a protective force in any emergency or unlawful disturbance affecting the shipyard. They also performed other related police duties such as the direction of traffic and control of the gates where persons and vehicles entered or left the plant.

A corporal of the guard had charge of a limited section of private guards, usually about six to nine in number, and was in turn subordinate to a sergeant responsible for a number of sections. The duties of the sergeants were to supervise the work of private guards and corporals. There were at each of the several plants only one or two sergeants for each shift. The sergeants made regular tours of the whole plant generally about two a day for each shift. The sergeants had the power to reprimand guards for neglect of duty and to suspend or discharge them subject to the approval of other officers. In performing these duties they necessarily had to exercise judgment and discretion in applying the rules of the management of the plant. If occasion demanded, the sergeant could, of course, and at times did make arrests of disorderly employees or others on the premises. When the private guards were stationed at the gates or clock houses their respective sergeants would oversee the performance of their duties.

The privates and corporals were classified as nonexempt employees under the Act; while the sergeants and lieutenants, captains and Chief of Police were classified as exempt employees under section 13 of the Act.

The duties of the sergeants and Lieutenants of the guard department required that they exercise judgment and discretion. They customarily supervised and directed the work of the privates and corporals. They had authority to make recommendations to their superiors in respect to the hours and operation and work of the guard department and the status of their subordinates and they did make such recommendations. Their recommendations related to such matters as augmenting the size of the force, the promotion or demotion of individual members of the force, increases in their pay and the like. They reprimanded the guards under them when they deemed a reprimand sufficient disciplinary action for improper performance of duties. When they considered more drastic disciplinary action necessary, they recommended suspension or discharge, dependent upon the nature of the offense. Their recommendations were given particular weight, and, as a general rule, were followed.

There was but one Lieutenant for each shift of the guard. A Lieutenant had much the same general duties and authority as a sergeant but was in a higher grade. He ordinarily made but one tour of the whole shipyard in a day and at other times was stationed in the guard house in the plant. His duties were the general supervision of the guard force, and to enforce discipline and to see that orders were carried out. He had the power to and did frequently recommend promotions in the guard force, and made recommendations as to increases in compensation.

As in many large industrial plants, the actual hiring of all employees in all departments was made only by the employment department of the industry. The officers of the guard department, the sergeants, Lieutenants and Captains, held meetings from time to time for consideration and discussion and instruction in the carrying out of their duties. Minutes of these meetings were kept. All of them exercised discretion and judgment in carrying out orders for the day in the discharge of their duties. These orders were generally given at the beginning of the operation of the particular shift by the Captain of the guard, and might thereafter be transmitted orally from the Lieutenants to the sergeants or by the sergeants to the corporals and private guards.

Mr. Charles F. Hertig, long an employee of the Bethlehem Steel Company, was superintendent of the whole Plant Protection Department of the defendant corporation. He testified at length with respect to the organization and setup of the guard department and the duties, responsibilities and authority of the respective officers, Captains, Lieutenants and Sergeants. In general, I have accepted as correct his evidence on this subject. It was supported in many instances by the production of documentary evidence. Indeed the factual evidence given by the plaintiff himself is not materially different from the testimony of Mr. Hertig, varying from it chiefly in matters more of opinion than of fact.

The plaintiff was first employed as a private guard in September 1941, promoted to be a sergeant in February 1942, and again promoted in December 1943 to be a Lieutenant, in which latter capacity he served until January 31, 1946. As a private guard he was paid on an hourly basis and for all overtime work in accordance with the Act. No claim is made for extra compensation for services in that classification. When he was promoted to be a sergeant he was paid a salary at the rate of about $253 per month, and when promoted to be a Lieutenant at the rate of $278 per month. No deductions were made from this salary for temporary absences for sickness, or vacations of two weeks a year. His compensation when a private guard amounted on an hourly basis to about $45 a week. The present suit was not instituted until April 9, 1946. While the plaintiff was employed as a sergeant he was generally stationed at the fabricating shop where he was the only sergeant for the shift, and supervised approximately 40 privates and the corporals who were in direct charge of these men. For some part of his services as sergeant he was stationed at the shipyards where the supervision of 120 privates and corporals was divided between him and one other sergeant.

The primary duty of the plaintiff Jones as a sergeant and as a Lieutenant in the guard department was to manage a recognized subdivision of that department and he customarily regulated and directed the work of his subordinates therein. He had the authority to recommend that his subordinates be reprimanded or discharged or promoted, or their pay increased. His recommendations were given particular weight by his superior. He made recommendations with respect to suspension and he customarily and regularly exercised judgment and discretion in the performance of his duties. Both as sergeant and Lieutenant his duties differed from those of...