Marchant v. Sands, Taylor & Wood Co.

• Decision Date: 29 January 1948
• Docket Number: Civil Action No. 6712.
• Citation: 75 F. Supp. 783
• Court: U.S. District Court — District of Massachusetts
• Parties: MARCHANT v. SANDS TAYLOR & WOOD CO.

75 F. Supp. 783

MARCHANT v. SANDS TAYLOR & WOOD CO.

Civil Action No. 6712.

District Court, D. Massachusetts.

January 29, 1948.

James F. Cavanagh, of Boston, Mass., for plaintiff.

William J. Nolan, of Boston, Mass., for defendant.

FORD, District Judge.

This is an action by a former employee of the defendant, wholesaler in flour, coffee and tea, under the provisions of Section 16 (b) of the Fair Labor Standards Act of 1938, hereinafter called the Act, 29 U.S. C.A. § 201 et seq., to recover unpaid overtime compensation, liquidated damages, and attorneys' fees.

At the outset I find, and, moreover, the defendant stipulated, that the defendant was engaged regularly in interstate commerce. It had warehouses in Somerville, Massachusetts (where the plaintiff was employed), Worcester, Massachusetts, and Providence, Rhode Island, as well as regular jobbers in New Hampshire. The plaintiff regularly shipped merchandise from the warehouse at Somerville for delivery to the warehouse in Providence, and to jobbers in other states. The plaintiff was engaged in commerce within the meaning of the Act. His work involved the interstate delivery of defendant's merchandise. Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S. Ct. 332, 87 L.Ed. 460; A. H. Phillips, Inc. v. Walling, 1 Cir., 144 F.2d 102, 104, (affirmed on other grounds, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095, 157 A.L.R. 876); Walling v. Goldblatt Bros. Inc., 7 Cir., 128 F.2d 778, 783.

The plaintiff was employed by the defendant corporation on April 16, 1916, and discharged from its employ on March 15, 1946. He commenced this action on April 18, 1947, and in his complaint claimed overtime compensation from the date the Act went into effect in 1938. However, at the trial, he withdrew any claim for overtime for the period prior to April 18, 1941, in accordance with the Massachusetts six-year statute of limitations. Mass.Gen.Laws, (Ter.Ed.) ch. 260, sec. 2¹; cf. Momand v. Universal Film Exchange, D.C.Mass., 43 F.Supp. 996. Prior to enactment of the Portal-to-Portal Act, 29 U.S.C.A. § 251, on May 14, 1947, the statute of limitations of the state where the action was commenced was applied by the federal courts in actions under the Fair Labor Standards Act. Republic Pictures Corp. v. Kappler, 8 Cir., 151 F.2d 543, 545, 162 A.L.R. 228, affirmed in a per curiam decision, 327 U.S. 757, 66 S.Ct. 523, 90 L.Ed. 991. The Portal-to-Portal Act provides a new and uniform statute of limitations for all actions under the Fair Labor Standards Act, but this new limitation does not apply to actions commenced prior to May 14, 1947, 29 U.S.C.A. § 255.² Therefore it does not affect plaintiff's claim running from April 18, 1941 through March 15, 1946 (when he was discharged).

The remaining issues here are (1) whether the plaintiff was an exempt employee under the provisions of Section 213 of the Act; (2) the number of hours worked per week by the plaintiff during the period April 18, 1941, until March 15, 1946; (3) whether defendant acted in good faith and had reasonable grounds for believing that it had not violated the Act within the meaning of the Portal-to-Portal Act, 29 U.S.C.A. § 260, so as to render the award of liquidated damages discretionary.

I. Exempt Employee.

Defendant claims that plaintiff was a bona fide executive from April 18, 1941, through August 12, 1945, and an outside salesman from August 13, 1945, until he was discharged, and that plaintiff is therefore an exempt employee under the provisions of Section 213 (a) of the Act as defined and delimited by Part 541 of the Regulations of the Administrator. 29 U.S. C.A.Appendix.³ This definition has the force of law. See Walling v. Yeakley, 10 Cir., 140 F.2d 830; Helliwell v. Haberman, 2 Cir., 140 F.2d 833.

The burden of proving that the plaintiff was an exempt employee is upon the defendant employer. Helliwell v. Haberman, supra, page 834 of 140 F.2d; Hutchinson v. William C. Barry, Inc., D.C.Mass., 50 F.Supp. 292. To sustain this burden, it must prove that its employee comes within all the component parts of the regulations, since they are stated in the conjunctive. George Lawley & Son Corp. v. South, 1 Cir., 140 F.2d 439, 444, 151 A.L.R. 1081. As to the period from April 18, 1941 through August 12, 1945, defendant has failed to sustain this burden. During this period, the evidence showed that the plaintiff was the shipper for defendant and had charge of that department; he received more than $30 per week; and his hours of work of the same nature as that performed by nonexempt employees did not exceed 20 per cent of the number of hours worked in the workweek by the nonexempt employees under his direction. Defendant offered evidence to prove that plaintiff customarily and regularly directed the work of other employees within the meaning of the regulations. The attempt to show he was in charge and directed the employees of the warehouse failed. These employees were under the direction of one Lynch. Plaintiff usually had only one clerical assistant and often no such assistant. Defendant offered testimony that plaintiff's recommendations as to the hiring or firing and as to the advancement and promotion of other employees were given particular weight. The plaintiff's evidence was to the contrary. The defendant presented no written evidence to show plaintiff ever recommended the hiring of an employee. No employee of defendant was presented to prove plaintiff had anything at all to do with interviewing prospective employees. On all the evidence I find that plaintiff made no recommendations concerning either the hiring or firing of employees. The decision concerning this condition of the regulations depended practically wholly on the credibility of the witnesses, and those for the defendant who attempted to sustain the burden of proof with respect to it were not convincing, to say the least. There was considerable testimony regarding the regular exercise of discretionary powers of the plaintiff, but I find that his powers and duties were not of an executive nature. He made up loading lists for the trucks, so that products to be delivered would be placed in the trucks in the order most convenient for taking them out. He watched the inventory of flour, so that there would always be on hand a stock of 5, 10, 25, 50 and 100 pound bags. When a customer came to the warehouse for supplies, plaintiff rang a bell and summoned warehousemen to help the customer. These men were under the direction of one Lynch, an employee of the defendant. When freight cars arrived, he summoned warehousemen to unload them. He collected the timecards of other workers and turned them over to the accounting department. He opened the warehouse in the morning and closed it at night. This is what the defendant relies upon to prove the plaintiff exercised discretionary powers sufficient to constitute plaintiff an executive. I find that these are all routine tasks requiring no exercise of discretionary power such as is contemplated under Sec. 541.1 of the Regulations. Plaintiff testified, and defendant admitted, that plaintiff fired the coal stoker, parked trucks, ground coffee beans, and did other such manual tasks regularly. It is, to my miind, a singular circumstance that an executive should be required daily to stoke the furnace for the warehouse when there were numerous other employees available to perform this and other menial tasks described above. We have not the picture of an executive here. On all the evidence I find that during none of the period in question was plaintiff a bona fide executive within the meaning of the Regulations. The defendant has not sustained its burden of proof concerning requirements (B), (C) and (D) of Sec. 541.1. Therefore, plaintiff is entitled to overtime compensation for hours worked in excess of 40 per week from April 18, 1941, through August 12, 1945.

Plaintiff, by his counsel, stipulated that he was a salesman from August 13, 1945, until his discharge. From the evidence it appears that he was an outside salesman within the provisions of Sec. 541.5 of the Regulations, and I find that he was such a salesman and was an exempt employee during this period. In any event, plaintiff failed to sustain his burden of proving the amount of overtime worked during the period and could not recover even if he were nonexempt.

II. Hours Worked.

The plaintiff has the burden of proof as to the number of overtime hours worked each week, and must produce enough evidence to permit a definite finding without guess or conjecture that he worked some particular number of hours overtime. He is not required to produce a time card or schedule of the exact hours worked by him for each week. George Lawley & Son Corp. v. South, supra, page 441 of 140 F.2d. Plaintiff testified that Monday through Friday he worked from 7 A.M., when he opened the business, until after all other employees left, their scheduled departure time being 5 P.M. He then checked the lights, doors and windows, and sprinkler system before leaving at 5:30 P.M., or later. This was definite evidence in each work-week of hours worked. Defendant kept no record of plaintiff's hours worked. Defendant's witnesses testified that plaintiff need not have stayed after 5 P.M., but I find that his employer never forbade him to do these things, but, in fact, acquiesced in his performance for several years, so that they were part of his regular duties. Allowing one-half hour for lunch, I find on the evidence that plaintiff worked ten hours per day Monday through Friday.

Plaintiff further testified, and it is uncontroverted, that until 1943 he worked from 7 A.M. till 1:30 P.M. on Saturdays, and I find it to be a fact that he did work 6½ hours each Saturday from April 18, 1941 through December 31, 1942. Thereafter plaintiff worked only ½ hour on Saturdays when he checked the warehouse, fired the stoker and removed clinkers. I also find that for six months each year during cold weather...