Spinden v. GS Roofing Products Co., Inc., 95-1893

• Decision Date: 30 October 1996
• Docket Number: No. 95-1893,95-1893
• Parties: 132 Lab.Cas. P 33,429, 3 Wage & Hour Cas.2d (BNA) 737 Paul O. SPINDEN, Appellee, v. GS ROOFING PRODUCTS COMPANY, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 421

94 F.3d 421

132 Lab.Cas. P 33,429, 3 Wage & Hour Cas.2d

(BNA) 737

Paul O. SPINDEN, Appellee, v. GS ROOFING PRODUCTS COMPANY, INC., Appellant.

No. 95-1893.

United States Court of Appeals,

Eighth Circuit.

Submitted April 8, 1996.

Decided Aug. 22, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 30, 1996.

Donald B. Harden, Atlanta, GA, argued (Joseph M. English and John E. Thompson, on the brief), for appellant.

Janet L. Pulliam, Little Rock, AR, argued (Denise R. Hoggard, on the brief), for appellee.

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

MAGILL, Circuit Judge.

GS Roofing Products Company, Inc. (GS) appeals the district court's ruling that GS's former controller, Paul O. Spinden, was not an exempt administrative employee under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-216. We reverse.

I.

Spinden worked as the plant controller for the GS plant in Little Rock, Arkansas, from January 1985 until September 1993. When Spinden first joined the company, he had an accounting clerk and an accounts payable clerk who reported to him. In December 1986, the clerks were terminated as part of a downsizing effort by GS, and Spinden took over their duties. ¹ As a result of these additional duties, Spinden consistently worked longer than forty hours each week. Spinden received only his base salary and bonuses as compensation, however, which at the time of his retirement was $42,792 annually. Spinden brought this lawsuit against GS in August 1993, seeking overtime compensation for hours worked in excess of forty hours per week for the last two years of his employment with GS. ²

In its defense against Spinden's claim for overtime wages, GS argued that Spinden was exempt from the FLSA's overtime compensation provisions because he was an administrative employee under the definition provided by the FLSA's enabling regulations. Both Spinden and GS submitted evidence which described Spinden's duties at GS. GS relied, in part, on Spinden's own resume, which summarized his work at GS:

* Provided accurate and timely financial reporting, including accounts payable, inventory, cash receipts and disbursements, journal and bank account reconciliation, production and variance report

* Posted daily, weekly, and monthly production, including downtime and loss time

* Maintained personnel records

* Prepared hourly payroll

* Prepared quarterly and annual federal and state tax reports, including multi-state reports

* Managed cash flow

* Prepared annual budgets for plant operation and for all departments

* Analyzed standard/actual cost for all production

* Responsible for obtaining and maintaining all employee insurance

* Prepared monthly journal entries

* Maintained general ledger

Def. Ex. 1, reprinted in Appellant's App. at 34.

GS presented evidence that Spinden regularly created a variety of reports, including the Variance Report. The Variance Report measured the Little Rock plant's actual monthly performance against its projected monthly performance; where actual costs exceeded projected costs, a negative variance existed. Spinden acknowledged that when he noted negative variances, he "might say something [to the plant manager], because in the course of setting up the standard, we may have set the standard up a little bit too low." Trial Tr. at 364.

In addition, GS presented a "Performance Improvement Plan," signed by Spinden and dated March 2, 1992, which listed "performance criteria (knowledge, skill, and other personal factors critical to job success)" for Spinden's position:

Must be able to determine the best way to program all schedules for timely reporting.

Must have accounting skills and knowledge of accounting principles and practices.

Th[o]rough knowledge of GS Roofing Products Co. needs and requirements to stay abreast of all changes from Corporate Office.

Ability to analyze, process, interpret and effectively communicate cost data.

Def. Ex. 18, reprinted in Appellant's App. at 47 (emphasis added). The plan also described several "key job objectives":

Work with Admin Ass't to develo[p] a method to balance and audit Distribution Trial Balance Summary Report on monthly basis ...

Design a Cost Reduction Reporting Form that will generate all data needed to accurately report savings ...

Work with Production Superintendent to develop plan and implement[at]ion schedule for computerizing production and usage reporting on a daily basis ...

Id.

GS also presented evidence that Spinden had been responsible for computerizing the accounting procedures at the Little Rock plant; that Spinden met with the Little Rock GS plant manager, production superintendent, traffic manager, process engineer, and corporate process engineer for weekly staff meetings, see Trial Tr. at 524 (Spinden Testimony); that Spinden was, upon his own recommendation, responsible for accepting service of process as the registered agent for GS in Little Rock, see id. at 463; that Spinden signed documents from the city of Little Rock Revenue Collection Division for GS, thereby agreeing that he was an "owner, officer or manager" of GS, see Appellant's App. at 52; and that Spinden signed equipment leasing contracts for GS. See id. at 54.

Spinden testified at trial that most of his time was occupied by

[j]ust a bunch of number crunching and basically doing all the accounting work as far as clerical work that had to be done getting production reports and putting in production and the time sheets and time cards and just menial, everyday bookkeeping jobs.

Trial Tr. at 523 (Spinden Testimony). During his cross-examination, Spinden testified regarding his other duties at GS:

Q. Mr. Spinden, in your controller job from 1987 until 1993, your duties included the following things, correct, and I'm going to list them for you: Accountable for the timely and accurate reporting of manufacturing costs and variances?

A. Yes.

Q. Experience in a manufacturing environment with emphasis on standard costing, variance analysis, and the corollary disciplines of accounting normally associated with the maintenance of a general ledger?

A. No.

Q. You don't believe that that was one of your responsibilities?

A. Not analysis. I did not have time to do analysis.

...

Q. All right. Did you give the following answer [during your deposition on April 26, 1994] to the following question:

... "Now, No. 2, three to five years' experience in a manufacturing environment with emphasis on standard cost variance analysis and corollary disciplines of accounting normally associated with maintenance of a general ledger. Would you agree that the plant controller--as plant controller at GS Roofing, that these were skills that you used as plant controller and skills that you possess?"

"Answer: Yes."

Did you give that answer at that time?

A. I may have.

Trial Tr. at 452-54. Spinden also agreed that he: reconciled the payroll bank account and audited weekly payroll earnings and deductions; prepared journal entries for the recording of accounts payable accruals, liabilities associated with the hourly payroll, conception of raw materials and related variances; scrutinized all production and inventory dates to insure accuracy, policy compliance, and control; and developed systems/programs which reduced clerical effort and improved office productivity. Id. at 457-60.

The district court concluded that Spinden was not an exempt employee, and was therefore entitled to overtime compensation. The court stated:

[This case] comes down to the, as everyone agrees, what [Spinden's] primary duty was.... I think these concepts are a little slippery. So when I first heard about that 50 percent rule, a good rule of thumb ... I figured, well, that will give me something I can tie to. Then I hear about the Burger King case [ ³] that's 90 percent and they go for managerial or administrative or whichever....

This case is so close that I'm still making up my mind as I'm talking in my opinion....

But it seems to me that primary duty has to have some tie in some way in most cases to amount of time spent on a particular duty. Now, if it were 50 percent, I could easily find in Mr. Spinden's case because I think clearly that more than 50 percent of his time was spent in doing things, what I'd call mere bookkeeping or things that I would not call discretionary or decision making or management-type decisions. On the other hand, if we went with the Burger King case on 90 percent, I might be inclined clearly to go the other way.

I do think the Burger King case is distinguishable because I think somebody that is a manger or supervisor in a fast food place really can be the manager and spend most of his time doing--cooking hamburgers and dipping french fries and doing that sort of thing and still have a finger on the pulse of everything, still be directing everything and probably doesn't have to do much directing when he's got trained employees. I don't think that that is a very close analogy. I think it was Holmes who said, "All similes limp," and so I don't think that's a very close analogy.

So I get back to, well, how much time under all the facts of this case do I think that Mr. Spinden spent doing primarily what I'd call administrative, more managerial, decision making, discretion, independent judgment-type things. I know that even though the law is clear that he doesn't have to make the final decision himself, that sending information to others who will make the decision doesn't necessarily--can't necessarily mean that it's an administrative duty because just the purest bookkeepers could send numbers into the corporate or to the plant manager and it would be a basis of the final decision. You could say that he helped or she helped in the decision in that respect.

Well, my overall impression is--and when I say "overall impression," I mean my opinion is that Mr. Spinden spent about 80 to 90 percent in nonexempt work. Well, is that enough to...