Marchant v. Sands, Taylor & Wood Co., Civil Action No. 6712.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtWilliam J. Nolan, of Boston, Mass., for defendant
Citation75 F. Supp. 783
PartiesMARCHANT v. SANDS TAYLOR & WOOD CO.
Decision Date29 January 1948
Docket NumberCivil Action No. 6712.

75 F. Supp. 783

MARCHANT
v.
SANDS TAYLOR & WOOD CO.

Civil Action No. 6712.

District Court, D. Massachusetts.

January 29, 1948.


75 F. Supp. 784

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

75 F. Supp. 785
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

75 F. Supp. 786
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...

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8 practice notes
  • Part II
    • United States
    • Federal Register April 23, 2004
    • 23 April 2004
    ...1986); Kuhlmann v. American College of Cardiology, 1974 WL 1344, at *1 (D.D.C. 1974); Marchant v. Sands Taylor & Woods Co., 75 F. Supp. 783, 786 (D. Mass. 1948); Anderson v. Federal Cartridge Corp., 62 F. Supp. 775, 781 (D. Minn. As illustrated by these cases, factors such as the freque......
  • Fair Labor Standards Act: Minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees; defining and delimiting exemptions,
    • United States
    • Federal Register April 23, 2004
    • 23 April 2004
    ...1986); Kuhlmann v. American College of Cardiology, 1974 WL 1344, at *1 (D.D.C. 1974); Marchant v. Sands Taylor & Woods Co., 75 F. Supp. 783, 786 (D. Mass. 1948); Anderson v. Federal Cartridge Corp., 62 F. Supp. 775, 781 (D. Minn. As illustrated by these cases, factors such as the freque......
  • Parks v. Puckett
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 27 September 1957
    ...8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan, Inc., D.C.N.J., 98 F.Supp. 1; Marchant v. Sands Taylor & Wood Co., D.C. Mass., 75 F.Supp. 783; Bloch v. Bell, D.C.Ky., 63 F.Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J., 63 F.Supp. 777; 169 A.L.R. "However, if an e......
  • Neal v. Braughton, Civ. No. 525.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 30 April 1953
    ...8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan, Inc., D.C.N.J., 98 F.Supp. 1; Marchant v. Sands Taylor & Wood Co., D.C.Mass., 75 F.Supp. 783; Bloch v. Bell, D.C.Ky., 63 F.Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J., 63 F.Supp. 777; 169 A.L.R. However, if an employee......
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6 cases
  • Parks v. Puckett
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 27 September 1957
    ...8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan, Inc., D.C.N.J., 98 F.Supp. 1; Marchant v. Sands Taylor & Wood Co., D.C. Mass., 75 F.Supp. 783; Bloch v. Bell, D.C.Ky., 63 F.Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J., 63 F.Supp. 777; 169 A.L.R. "However, if an e......
  • Neal v. Braughton, Civ. No. 525.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 30 April 1953
    ...8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan, Inc., D.C.N.J., 98 F.Supp. 1; Marchant v. Sands Taylor & Wood Co., D.C.Mass., 75 F.Supp. 783; Bloch v. Bell, D.C.Ky., 63 F.Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J., 63 F.Supp. 777; 169 A.L.R. However, if an employee......
  • Tobin v. Kansas Milling Co., No. 4329.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 22 February 1952
    ...1 Walling v. Yeakley, 10 Cir., 140 F.2d 830; Helliwell v. Haberman, 2 Cir., 140 F.2d 833; Marchant v. Sands Taylor & Wood Co., D.C., 75 F.Supp. 783. --------...
  • Goldenberg v. KIRSTEIN LEATHER COMPANY, Civ. A. No. 62-62-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 24 October 1962
    ...Mt. Clemens Pottery Co., 328 U.S. 680, 687-688, 66 S.Ct. 1187, 90 L.Ed. 1515 (1945). See, also, Marchant v. Sands Taylor & Wood Co., 75 F.Supp. 783, 787 (D.Mass.1948); Freeman v. Blake Co., 84 F.Supp. 700, 703 (D.Mass.1949); Mitchell v. Sulahian, d/b/a Novelty Stitching Co., 189 F. Supp......
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