Pugh v. Lindsay, 6587.

• Decision Date: 11 July 1953
• Docket Number: No. 6587.,6587.
• Citation: 206 F.2d 43
• Parties: PUGH v. LINDSAY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

206 F.2d 43 (1953)

PUGH v. LINDSAY et al.

No. 6587.

United States Court of Appeals Fourth Circuit.

Argued June 9, 1953.

Decided July 11, 1953.

John T. Camblos, Charlottesville, Va. (Michie, Camblos & Via, Charlottesville, Va., on the brief), for appellant.

Robert E. Taylor, Charlottesville, Va. (E. H. Deets, Jr., Charlottesville, Va., on the brief), for appellees.

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

DOBIE, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Western District of Virginia dismissing plaintiff's action to recover overtime compensation under the provisions of the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219. The plaintiff sought overtime pay in the amount of $709.69, a like amount as liquidated damages, and reasonable attorney's fees.

The defendants are the owners and publishers of The Daily Progress, a daily newspaper published in the City of Charlottesville, Virginia. In May, 1948, the plaintiff was employed by the defendants to work in the mechanical department of the newspaper as an advertisement make-up man or as a linotype operator. After a few months the plaintiff was made foreman of the composing room, where the type is set by the linotype machines and the advertisements and the pages are made up. At this time plaintiff was put on a weekly salary. During the summer of 1949 the plaintiff was put in charge of all of the mechanical department of the paper and given the title of Mechanical Superintendent.

In the capacity of Mechanical Superintendent, the plaintiff was in charge of the composing room, the engraving department and the press room. There was no specific regulation of his working day, but his job was to see that the mechanical department completed its function so that the paper went to press on time.

In addition to his regular work, the plaintiff performed two special jobs for the defendants during 1950. The first of these was helping to move all of the equipment in the stereotype room to a new location, which undertaking required seventeen to eighteen hours of plaintiff's time. The second of these special jobs occurred when the City of Charlottesville changed over from manufactured gas to natural gas and it became necessary to change the burners in some of the equipment in the mechanical department. This job required ten and one-half hours of plaintiff's time. In the former case, the plaintiff assisted in the actual labor of moving, as well as supervising the operation; in the latter case he was present because the work was performed by strangers, and it was necessary for someone to be on hand to let them into the building, show them where the equipment was and lock up after their departure.

Sometime during the fall of 1950, the plaintiff was told by a fellow employee that a linotype operator was receiving more pay than he was, though working fewer hours, and he became dissatisfied when told by the Business Manager that this was none of his affair. He then wrote to the Wage and Hour Division for information concerning the Fair Labor Standards Act and from its reply he determined that he was entitled to overtime pay for his working time in excess of forty hours per week. On January 4, 1951, the plaintiff had a conference with the Business Manager and the publisher concerning his working hours and pay. At this conference the plaintiff stated he thought that the defendants were in violation of the Fair Labor Standards Act but said that if some satisfactory arrangement could be made he would not insist upon his rights under the Act. Some time later, the plaintiff again talked to the publisher and when he had received no satisfaction as to his complaints two weeks later, resigned on February 9, 1951.

Thereafter, the plaintiff made complaint to the Wage and Hour Division which, after investigation, determined that the plaintiff was entitled to overtime wages. Subsequently defendants' attorney tendered a check to plaintiff as payment for overtime, in accordance with the findings of the Wage and Hour Division. The plaintiff, believing himself entitled to a larger sum, refused to accept the check, and after several months of unfruitful negotiation, brought this action.

Defendants contended that the plaintiff was employed in a supervisory and executive capacity and was, therefore, exempt from the operation of the statute. In addition to a general denial of any indebtedness to the plaintiff for overtime wages, the defendants invoked the statute of limitations as to that part of plaintiff's claim which related to employment prior to January 3, 1950.

Prior to the trial of this case, it was stipulated between counsel that the statute of limitations bars any recovery in this case for work done prior to January 1, 1950; that the weekly wage of plaintiff during 1950 was $80.00 per week and during the portion of 1951 which plaintiff worked for the defendants it was $82.50 per week; that the plaintiff worked for defendants 51 weeks during 1950 and 5½ weeks during 1951.

The pertinent section of the Fair Labor Standards Act of 1938, as amended, 29 U. S.C.A. § 213 (a) (1) provides:

"Sec. 213 Exemptions

"(a) 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)".

The Administrator has defined and delimited the term "employed in a bona fide executive capacity" as follows, 29 Code Fed.Regs. Section 541.1:

"The term `employee employed in a bona fide executive * * * capacity in section 13(a) (1) of the act shall mean any employee —

"(a) whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or sub-division thereof; and "(b) who customarily and regularly directs the work of two or more other employees therein; and

"(c) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

"(d) who customarily and regularly exercises discretionary powers; and

"(e) who does not devote more than 20 per cent of his hours worked in the work week to activities which are not directly and closely related to the performance of the work described in paragraph (a) through paragraph (d) of this section: Provided, That this paragraph (e) shall not apply in the case of an employee who is in sole charge of an independent establishment, or who owns at least a 20 per cent interest in the enterprise in which he is employed; and

"(f) who is compensated for his services on a salary basis at a rate of not less than $55 per week (or $30 per week if employed in Puerto Rico or the Virgin Islands) exclusive of board, lodging, or other facilities:

"Provided, That an employee who is compensated on a salary basis at a rate of not less than $100 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or sub-division thereof, and includes the customary and regular direction of the work of two or more other

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