Spring v. Washington Glass Company

• Decision Date: 29 May 1957
• Docket Number: Civ. A. No. 14303.
• Parties: Carl SPRING, Plaintiff. v. WASHINGTON GLASS COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

153 F. Supp. 312

Carl SPRING, Plaintiff. v. WASHINGTON GLASS COMPANY, Defendant.

Civ. A. No. 14303.

United States District Court W. D. Pennsylvania.

May 29, 1957.

Anthony J. Martin, Samuel Krimsley, Pittsburgh, Pa., for plaintiff.

Henry C. Herchenroether, Jr., Pittsburgh, Pa., for defendant.

MARSH, District Judge.

Carl Spring brought this action against Washington Glass Company, his former employer, under § 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), to recover unpaid overtime compensation, liquidated damages and attorney's fees. After trial and consideration of the requests and briefs of the parties, the court makes the following

Findings of Fact

1. Washington Glass Company is a corporation organized and doing business in the Commonwealth of Pennsylvania, which operates a glass container manufacturing establishment in the City of Washington, Washington County, Pennsylvania, and its product is sold and distributed in interstate commerce.

2. During a period which includes the period beginning with February 10, 1954, and ending September 11, 1955, plaintiff, Carl Spring, was employed by the defendant as a hot-end or shift foreman, with the primary duty of managing a customarily recognized department or subdivision of defendant's plant known as the Production or "Hot-End" Department during the shift assigned to him.

3. The defendant, during the aforesaid period, operated its plant twenty-four hours per day in three shifts of eight hours each. Its foremen were expected to work any time, e. g., when needed on extra shifts, as substitutes for sick personnel, and in case of machinery breakdown.

4. Plaintiff was employed as a shift foreman under the terms of an oral contract providing for payment of a specified weekly salary for a workweek of unspecified hours.

5. During the period in question, from February 10, 1954 to August 29, 1954, the plaintiff received a salary of $93.50 per week, and from August 29, 1954 to September 11, 1955, $98.00 per week.

6. Pursuant to an agreement, production bonus payments ranging from $0.84 to $7.39 per week were regularly made by defendant to plaintiff during the period involved. These production bonus payments were not made at the sole discretion of defendant, but plaintiff was entitled thereto, weekly, pursuant to the terms of the bonus agreement. Other sums of money and property were presented by defendant to plaintiff at Christmas and on other special occasions as gifts.

7. The plaintiff customarily and regularly supervised 7 or 8 employees in the Production Department, on an 8-hour shift, for 40 hours per week, producing defendant's products. It was also his duty to check and keep four automatic production machines running normally. In this connection it was his responsibility to make or supervise the making of all necessary adjustments or repairs to said machines in the event of a breakdown or defective production during his shift, and to see that the heating devices were maintained at the proper degree of temperature.

8. During said period, plaintiff had the authority to discipline employees under his supervision including authority to discharge them for cause, said action being subject to reversal only if it was found to be contrary to the collective bargaining agreement covering said employees; his suggestions and recommendations as to hiring other employees were requested and given particular weight by his superiors. The final authority as to whether a person was to be hired or an employee was to be fired was vested in the plant manager.

9. Plaintiff was under the direct supervision of a plant manager and a plant superintendent or an assistant plant superintendent.

10. No records for the period in question were offered in evidence by either plaintiff or defendant from which could be calculated the number of hours worked by plaintiff in any workweek doing work which was not directly and closely related to executive work referred to in Regulation 541.1(a), (b), (c), (d).¹

11. In respect to condition (e) of the Regulation,² the defendant failed to prove that plaintiff worked less than 20% of the hours he worked during the workweeks involved in activities which were not directly and closely related to the performance of executive work.

12. Plaintiff did not customarily and regularly exercise the discretionary powers referred to in condition (d) of the Regulation.³

13. According to the stipulation of counsel, plaintiff worked a number of hours in excess of 40 hours per week in each of the weeks shown in the stipulation, or a total of 261 overtime hours, and was paid the salary and bonus for each week as shown in said stipulation.

14. Defendant failed to pay full compensation to plaintiff for the overtime hours he worked for the benefit of defendant.

15. The defendant's failure to pay overtime compensation to the plaintiff was in good faith and was based upon reasonable grounds for belief that the plaintiff was not entitled to overtime compensation.

16. The defendant's failure to pay overtime compensation to plaintiff was not in good faith in reliance on any administrative ruling, approval or interpretation of the Administrator of the Wage and Hour Division of the Department of Labor or his counsel.

Discussion

Section 7 of the Fair Labor Standards Act, 29 U.S.C.A. § 207, provides:

"(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

The defendant admits that it was engaged in the production of goods for commerce, but contends that the plaintiff was an exempt executive employee as that term is defined and delimited in § 13(a) of the Fair Labor Standards Act, 29 U.S.C.A. § 213, and Regulation 541.1.⁴ This Regulation in its pertinent parts is as follows:

"§ 541.1 Executive. 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 subdivision 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 percent of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, * * *; and

"(f) Who is compensated for his services on a salary basis at a rate of not less than $55 per week * * * exclusive of board, lodging, or other facilities:

"Provided, * * *."

The defendant does not dispute the decisions which hold that the conditions defining and delimiting an executive employee are conjunctive, and that an employer who contends that an employee is an exempt executive employee has the burden of proving the existence of all the conditions. Walling v. General Industries Co., 1947, 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088; Rothman v. Publicker Industries, Inc., 3 Cir., 1953, 201 F.2d 618; Pugh v. Lindsay, 4 Cir., 1953, 206 F.2d 43; Cintron Rivera v. Bull Insular Line, 1 Cir., 1947, 164 F.2d 88. We think that the defendant has met all of the conditions except (d) and (e).

Although we find that the plaintiff's primary duty was to manage the Production or Hot-End Department while working with his shift, and customarily and regularly directed the work of 7 or 8 employees therein, Walling v. General Industries Co., supra, and had authority to make recommendations as to hiring or firing which were given particular weight, Nadeau v. Henry Disston & Sons, Inc., D.C.E.D.Pa.1946, 65 F.Supp. 849, it is certain that he also was primarily responsible for the proper mechanical functioning of the automatic machines which produced the defendant's glass products. Plaintiff was expected to make the adjustments and repairs, change molds, blanks and other parts in the machinery from time to time, and maintain a steady production rate. He was required to see that these adjustments and replacements were made promptly and correctly. Plaintiff testified that he himself made substantially all of the repairs and adjustments on his shift with occasional help from an operator of the production machinery. His testimony in this respect was not denied.

Plaintiff estimated that 40% of his time was spent in performing mechanical labor, such as making repairs and adjustments to the machinery and in relieving the four machine operators of their duty of tending and watching the machines when each of them went for lunch.⁵ Plaintiff's estimate is probably insufficient to establish the percentage if the burden of proof was upon him; it was partially based upon what he had heard from an investigator to whom he had made a complaint.⁶ The work records which plaintiff kept for six weeks during the critical period were not offered in evidence, and the records which he kept for five days prior to the period in suit⁷ afford no insight into the actual percentage of time spent in mechanical labor and relief work.

On the other hand, the defendant failed to meet its burden of showing that plaintiff did not devote in excess of 20% of the hours he worked in the workweek to activities which were not directly and closely related to the performance of executive work. It had never kept a time record of plaintiff's activities...