Rothman v. Publicker Industries, 10808.

• Decision Date: 06 February 1953
• Docket Number: No. 10808.,10808.
• Citation: 201 F.2d 618
• Parties: ROTHMAN v. PUBLICKER INDUSTRIES, Inc.
• Court: U.S. Court of Appeals — Third Circuit

201 F.2d 618 (1953)

ROTHMAN v. PUBLICKER INDUSTRIES, Inc.

No. 10808.

United States Court of Appeals Third Circuit.

Argued January 20, 1953.

Decided February 6, 1953.

Ronald Souser, Philadelphia, Pa. (Souser & Schumacker, Philadelphia, Pa., on the brief), for appellant.

I. Herbert Rothenberg, Philadelphia, Pa., for appellee.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

The appellee, Rothman, an employee of the appellant, Publicker Industries, Inc., having been denied pay for certain overtime work, sued his employer under the Fair Labor Standards Act of 1938, as amended,¹ and recovered the claimed overtime compensation and, as the statute authorizes, an equal amount as liquidated damages.

The first question on this appeal is whether within the meaning and for the purposes of the Act Rothman was in the exempt category of persons "employed in a bona fide executive * * * capacity".² This in turn, as the parties agree, is to be determined in the light of Regulations of the Administrator which state several definitive criteria all of which must be satisfied if an employee is to be regarded as "employed in a bona fide executive capacity". Of the criteria thus set out in the Regulations the one in controversy here is the requirement that the employee "customarily and regularly exercises discretionary powers".³ The District Court explicitly found that Rothman "did not customarily exercise discretionary powers and consequently fails to meet one of the tests necessary to place him in the exempt category". It is appellant's contention that the evidence does not support or permit that finding. We think, however, that the finding was clearly permissible and accordingly that the employee was entitled to overtime compensation.

Rothman was employed to work in the yards of the Bigler Street plant of Publicker Industries where alcohol and various by-products are produced in large quantities. The yard and plant cover an area about two city blocks long and one block wide. Within the yard some twenty-three railroad tracks enable the movement of railroad cars to and from various sections of the plant. There is testimony that during a single day thirty-five to forty railroad cars of grain, twenty to twenty-five cars of coal and additional cars containing other raw materials may be brought into the yard, while a hundred or more cars of alcohol and by-products are taken out.

Rothman's job was designated "Yard Master". His principal function was to receive instructions from various departments of the plant that particular cars should be moved to or from some loading or unloading point and to transmit these instructions to the appropriate railway operating crew. In addition, he was responsible for such cleaning as tank cars might require after delivery to the yard in order to be ready for loading. In this connection, he normally had two to five employees, apparently laborers, working under his direction. However, about two-thirds of his time was spent in connection with his primary responsibility, moving around the yard, transmitting instructions concerning the placement and dispatch of railway cars and observing the execution of these instructions.

Before assignment to these duties, Rothman performed similar dispatching duties in connection with the desired movement of trucks to and from particular points in another Publicker yard. In the old job he was called "expediter" and received overtime pay as an ordinary employee. As yard master, however, he was said to be employed in executive capacity and thus not entitled to overtime pay. The claimed distinction seems to depend principally upon the addition of the new function of directing the work of other employees. Publicker places principal emphasis upon the exercise of discretionary powers involved in the direction and control of the small cleaning force.

We have examined all items of discretion pointed out by appellant in the light of Rothman's total work and think that the trier of fact was justified in concluding that in the aggregate they fall short of establishing "customary and regular exercise of discretionary powers" within the meaning of the Regulations. In the...