McReynolds v. Pocahontas Corp., 6297.

• Decision Date: 06 November 1951
• Docket Number: No. 6297.,6297.
• Citation: 192 F.2d 301
• Parties: McREYNOLDS et al. v. POCAHONTAS CORP.
• Court: U.S. Court of Appeals — Fourth Circuit

192 F.2d 301 (1951)

McREYNOLDS et al. v. POCAHONTAS CORP.

No. 6297.

United States Court of Appeals Fourth Circuit.

Argued October 15, 1951.

Decided November 6, 1951.

Frederick T. Kingdon, Mullens, W. Va. (Kingdon & Kingdon, Mullens, W. Va., on brief), for appellants.

Joseph M. Crockett, Welch, W. Va. (Crockett & Tutwiler, Welch, W. Va., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This appeal is from a decision of the United States District Court for the Southern District of West Virginia. Appellants, McReynolds, Garay and Ward, along with one Gilmore, instituted suit under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., (hereinafter referred to as the Act), against Pocahontas Corporation (hereinafter called the Company), to recover premium pay for hours of labor performed in excess of forty hours a week. Appellants claim premium wages for the following periods: McReynolds, June 7th, 1948, to June 16th, 1950; Garay, June 7th, 1948, to January 1st, 1949, (at which time he was promoted to salaried chief section foreman); and Ward, August 18th, 1948, to May 15th, 1949.

Appellants were employed as either second or third shift section foremen in the Company's mines at Amonate, Virginia. The Company employed in these operations some sixteen hundred laborers and eighty section foremen. In the hierarchy of supervisory personnel between the section foremen and the mine superintendent, there was a general mine foreman.

The evidence shows that there was a distinction in both responsibility and method of pay between first shift section foremen and the foremen on the second and third shifts. First shift foremen were paid a straight weekly wage, while other foremen were paid an hourly rate with a minimum guarantee of three shifts per week. The section foremen on the first shift were responsible for procuring the necessary supplies for the entire twenty-four hour operation. It was also a part of their duty to determine what working places were to be opened and closed. The section foreman on the second and third shifts were, however, charged with responsibility for the lives and safety of the men working in their section; looking after the ventilation, safety of travel, walkways, driving entries, keeping boreholes ahead, looking after the safety of the roof and equipment, and testing for gas. They had control of the men under them, assigning them to particular work and to different classes of work; and keeping their work records. It was also their responsibility and duty to determine when the mine was safe to operate, to remove the men when they thought there was danger, and to keep them away until the mine was made safe. The second and third shift foremen were recognized as part of management in the contract between the Company and the United Mine Workers. They regularly attended foremen's meetings to discuss the Company's operating problems, and were recognized by the Union employees as a part of the management. The Union employees objected to their doing any manual work or any work that Union men were employed to do.

Upon the facts, the District Court found that appellants were employed "in a bona fide executive" capacity, and were therefore exempt from the Act under the provisions of § 13(a) (1), 29 U.S.C.A. § 213(a) (1), and the regulations promulgated by the Wage and Hours Administrator. 29 Code of Fed.

§ 541.1; effective October, 1940, and amendments thereto effective January, 1950 (hereinafter referred to as the regulations). From that decision appellants have appealed to us.

Appellants first contend that they neither exercised managerial functions nor possessed sufficient discretionary power as to make them exempt employees within the meaning of § 541.1(a) and (d) of the Regulations.¹ With this contention we cannot agree.

Appellants stress the fact that the first shift foremen exercised a measure of control over the foremen on the later shifts since they decided what working places were to be opened and when they were to be closed. The mere fact, however, that one group of foremen exercised some control over another group does not negative a finding that the second and third shift foremen are also "executive" employees.

The evidence shows that second and third shift section foremen, such as appellants, were in complete control of the men on their shifts. There was no other supervisory employee directly over the men, and it appears that the general foreman visited a particular section only once or twice a week. It was for appellants to assign men to particular work, to direct their efforts and to keep the work records for the employees under them. All these circumstances, together with the fact that appellants were recognized by the Union as a part of the management, clearly lead to the conclusion that appellants were managers in their section...