Todd v. Roane-Anderson Co.

• Decision Date: 29 January 1952
• Docket Number: ROANE-ANDERSON
• Citation: 251 S.W.2d 132,35 Tenn.App. 687
• Parties: TODD v.CO.
• Court: Tennessee Court of Appeals

Page 132

251 S.W.2d 132

35 Tenn.App. 687

TODD v. ROANE-ANDERSON CO.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

Jan. 29, 1952.

Certiorari Denied by Supreme Court June 7, 1952.

Thomas W. Thomson, Knoxville, for appellant.

E. H. Rayson, R. R. Kramer, Knoxville, for appellee, Kramer, Dye, McNabb & Greenwood, Knoxville, of counsel.

SWEPSTON, Judge.

Complainant sued to recover overtime compensation as an employee of defendant. From an adverse decree he appeals and assigns error.

By the bill as amended he seeks to recover under three theories, to wit:

(1) Upon his contract of employment;

(2) Under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.;

(a) That he was required to remain 'on call' 24 hours a day for seven days a week during the period of his employment which would amount to 128 hours per week in excess of his 40 hour week; or

(b) in any event that he worked 70 hours per week and would therefore be entitled to overtime of 30 hours per week;

(3) Under the Act of Congress of July 2, 1940, Public no. 703, 54 stat. 712.

The defendant was employed on a 'cost plus fee' basis by the United States under a prime contract as a service organization at the atomic energy project then known as the Clinton Engineering Works, Oak Ridge, Tennessee.

Complainant was employed by defendant January 4, 1944 in the job classification of automotive service supervisor until July 28, 1944.

The job classifications and rates of pay were fixed during this period pursuant to the Wage Stabilization policies of the United States.

Complainant's insistence under his first theory and first assignment of error is that his contract of employment provided a rate of pay of $1.50 an hour for 40 hours per week and time and one half for all hours over 40.

His testimony is that he was hired by Mr. Roberts, general superintendent of equipment, and no one else was present; that Roberts told him his pay would be straight time at $1.50 an hour, until defendant could get approval from Washington for overtime pay and then he would receive his back overtime pay in full.

The testimony of Roberts is that complainant was hired on a weekly basis of $60 for a 40 hour week and for overtime he would receive the same rate of pay, which is $1.50 per hour. Roberts is supported by defendant's exhibits 2 and 4 showing the employment was on a weekly basis and by exhibits 38 and 39, which are the wage schedules respectively for the non-manual and manual employees which became effective November 6, 1943 and were in effect during the entire time of complainant's employment; these rates were controlled by the War Department Labor Board and other stabilization agencies. R. 311 and 312.

The undisputed evidence is there was never any proposal to change the non-manual rates; there was not, until June 5, 1944, any discussion of changing any rates and then only the manual rates were eventually changed in June 1944.

Exhibit 38 shows that Todd's job classification is listed in Schedule B as non-manual and that all employees under this schedule were to receive pay on a weekly basis of 40 hours with straight time for overtime, whereas under exhibit 39 all schedules were set up on an hourly basis with time and one half for all hours in excess of 40.

Roberts denied he had promised Todd he would receive time and a half for overtime.

If Roberts had so promised Todd, it would have been a violation of law and subject to severe penalties under the Wage Stabilization policies in effect at the time; as to any criminal penalties, there would be a prima facie presumption that defendant had not violated the law; as to the civil penalties, there is no presumption of innocence, but in the absence of evidence showing a reason for violation, it is a fair practical assumption that the law was not violated.

Therefore, in reviewing this case under Code Section 10622, we are unable to hold that the evidence preponderates against the decree below.

Again, under the then prevailing public policy expressed in the statutes and regulations as to Wage Stabilization a contract in violation of such laws would be void and unenforcible, because otherwise the legislative purpose of the acts would be thwarted. Biggs v. Reliance Life Ins. Co., 137 Tenn. 598, 604, 195 S.W. 174; Watterson v. Nashville, 106 Tenn. 410, 61 S.W. 782; Shirley v. Shirley, 181 Tenn. 364, 369, 181 S.W.2d 346; Am. Fed of Labor v. Roane-Anderson Co., 185 Tenn. 363, 206 S.W.2d 386; State ex rel. Toser v. Nat'l Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263.

The instant suit in this aspect is for breach of contract and not for fraud.

It further appears from Todd's testimony that even if time and half for overtime was mentioned, the payment of same was conditional on defendant's obtaining approval of same from Washington. Todd offered no evidence of same having been obtained and the uncontradicted evidence of defendant is that it was neither sought nor obtained for employees of Todd's job classification, as above stated.

This assignment is overruled.

The second assignment is directed at the holding of the Chancellor that Todd was a non-manual employee in an executive or administrative capacity and therefore within the exemption contained in Section 13(a)(1) of the Fair Labor Standards Act of 1938.

The Chancellor held that Todd was 'engaged in commerce' but not in the 'production of goods for commerce'. Neither party has assigned error as to the first or affirmative holding. Hence, it is assumed he was within the scope of the Act, unless exempt under 13(a)(1).

Counsel are in agreement that the following tests were applied by the Wage and Hour Administrator during the time complainant was employed in determining whether a person was an executive employee:

'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 establishment in which he is employed or of a customarily recognized department or subdivision thereof, and

"(B) Who customarily and regularly directs the work of 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 is compensated for his services on a salary basis at not less than $30 per week (exclusive of board, lodging, or other facilities), and

"(F) Whose hours of work of the same nature as that performed by non-exempt employees do not exceed 20 per cent of the number of hours worked in the workweek by the non-exempt employees under his direction; provided that this subsection (f) shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment".

The original bill signed and sworn to by Todd alleged 'he was employed by the defendant as a mechanical and operational supervisor having charge exclusively of heavy equipment and the repair and maintenance of streets and roads and was assigned the duty of supervising the repair of said machinery and its use. Your complainant had under his jurisdiction many people ranging from 25 to about 75'.

The case was tried on oral testimony under a written stipulation filed in the cause and was heard by the Chancellor, who held that Todd was an executive employee and dismissed the bill.

On that hearing Todd testified in accord with the above quoted allegations of the bill; he testified he did some manual work before then obtained a larger number of machines, but that his main job was supervisory.

A petition to rehear having been granted, additional evidence was adduced and Todd testified that he did 50% of the repairs in the shop and in the field by his own manual labor on the heavy machines. R. 154. And that he had under his supervision only 15 or 20 people, and denies he was a supervisor. R. 178.

This testimony is self contradictory and no plausible explanation of the fact is made, so the effect is it cancels itself, under Donaho v. Large, 25 Tenn.App. 433, 158 S.W.2d 447, and cases cited therein.

There is evidence that he did occasionally do some manual labor, but of several witnesses called for the second hearing none substantiated his claim as to time worked manually.

Clarence Lee contradicts himself twice. He testified Todd worked half of his time manually, but then says he saw Todd very seldom. Again, he testified he never worked with Todd, but later says he did.

C. W. Hill first testified Todd did manual work all the time, and worked many a day with him all day long. Later he said he had no idea how many hours a week Todd worked manually. He was very evasive of the question asked him as to Todd's telling men where to work.

R. L. Lynn testified Todd was a foreman and he tells what Todd really did, that he was here and there supervising the work. R. 137. He then insists that Todd did manual work on the machinery, but he damages the value of his testimony by stating that he himself worked most of the time in the shop until he was put on a repair truck to go into the field and then Hill was witness' partner; after which time he did not go out on a truck anymore with Todd. R. 140.

He then contradicted himself as to whether Todd recommended him to Todd's superior as a good mechanic.

Those witnesses were obviously trying to minimize Todd's supervisory activities.

On the other hand J. R. McClellan, the superintendent of roads and streets in the project testified that he saw Todd in the field frequently, never saw him working manually, and Todd had about 20 machines and 5 or 6 foremen in various places around the project.

It has already been shown by the weight of the evidence that Todd was hired on a weekly basis. The...