Walling v. Moore Milling Co.
| Decision Date | 25 July 1945 |
| Docket Number | No. 241.,241. |
| Citation | 62 F. Supp. 378 |
| Parties | WALLING, Administrator, Wage and Hour Division, U. S. Dept. of Labor, v. MOORE MILLING CO., Inc. |
| Court | U.S. District Court — Western District of Virginia |
Lemuel H. Davis, Regional Atty., and William R. Allcott, Senior Atty., U. S. Department of Labor, both of Richmond, Va. (Douglas B. Maggs, Solicitor of Labor, and Archibald Cox, Associate Solicitor of Labor, U. S. Department of Labor, both of Washington, D. C., on the brief), for plaintiff.
Frank G. Davidson, Jr., of Lynchburg, Va., for defendant.
On April 23, 1945, the plaintiff, L. Metcalfe Walling, Administrator of the Wage and Hour Division of the Department of Labor, filed his complaint against Moore Milling Company, Inc., alleging that defendant, a resident of this District, was engaged in the production, sale and distribution of flour, meal, and similar products, in interstate commerce, was subject to the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., and had violated the provisions thereof as to wages and hours of labor in its employment of three of its employees. In the complaint, plaintiff prayed for a preliminary and permanent injunction. Plaintiff filed an affidavit supporting the allegations of his complaint, and upon plaintiff's motion, I entered an order requiring the defendant to show cause why a preliminary injunction should not issue restraining it from further violations of the Act. On the return day of the show cause order, a hearing was had, and defendant moved to quash the order to show cause, upon the ground that such a procedure was not sanctioned by the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. This motion was overruled, and evidence was introduced both in support of and against plaintiff's motion for a preliminary injunction.
At the conclusion of the testimony, brief arguments of counsel were heard. The respective contentions of counsel raised three questions for determination:
(1) Was the entry of an order to show cause a proper procedure?
(2) Were the three employees in question employed in a bona fide executive capacity under Section 13(a) of the Act and Section 541.1 of the Regulation promulgated by the Administrator defining the meaning of "bona fide executive * * * capacity", as used in the Act?
(3) Whether or not the three employees in question were employed in violation of the Act, if the court should find that they were not employed in a bona fide executive capacity.
Both parties asked for leave to file briefs, and having now maturely considered the evidence and the briefs filed, I set forth my findings of fact and conclusions of law, as required by Rule 52(a), as follows:
Findings of Fact.
It is conceded, and I find as a fact, that the defendant and its employees in question were engaged in interstate commerce.
The employees in question were Rosa B. Williams, Rufus Boles, and Rufus Altice.
Miss Williams was secretary of the corporation, and received $30 a week as compensation. She customarily worked a maximum of 54 hours a week, that is, she went to work at 8 a.m., took an hour off for lunch, and quit at 6 p.m. every day, except Saturday, when she quit at noon if she had finished her work. If she had not, she stayed until she had finished her work, or until 6 p.m. The president of the defendant corporation, Mr. Moore, was in general charge of all defendant's operations. Under his supervision, Miss Williams was in general charge of the defendant's office, and in complete charge whenever Mr. Moore was absent. There were four other employees in the office over whom Miss Williams exercised supervision and direction. Although she did not sign checks, she wrote all checks, paid all invoices and filed them away, she bought all office supplies, made the bills of lading, filed all claims for shortages on trains and cars, kept the general ledger, answered the telephone when the operator was absent, and waited on the trade when called upon. She attended to some of the correspondence on her own initiative, looked after gasoline coupons for the trucks, and obtained the necessary feed stamps. She estimated that her work on the general ledger would not take over 15% of her time, "or not over 20 anyway". She had the authority to hire and fire other employees, or certainly her suggestions and recommendations as to hiring and firing were given particular weight.
The duties of Rufus Boles and Rufus Altice were similar. Boles was assistant superintendent of the mill, his duties being primarily those of a shipping clerk or head of the shipping department, during the day time, and Altice was shipping clerk or head of the shipping department, at night. Both worked a maximum of 63 hours a week, and both were paid, first, $40, and then $45, a week. Boles had under his control and direction from six to eleven men who actually loaded the trucks and cars; Altice had from two to five. Both had the right to hire and fire such employees. Both were in entire charge of the shipping department while they were at work. The invoices or bills were prepared in the office and turned over to these employees. They then became accountable and responsible for the shipment of the merchandise as billed. It was their duty, and within their discretion, to determine what should constitute the loads of the respective trucks, to see that they were properly loaded, and go over the bills or invoices with the drivers and instruct them as to the routes to be taken and the order of delivery of the merchandise. It was also their duty to procure from the milling department the merchandise which was billed out, and to see that such merchandise as was not on hand was produced by the milling department in time to be promptly shipped out. Both these employees occasionally helped in an emergency with the actual loading, but neither worked as much as 20% of his time as a loader or driver.
The terms of employment of Miss Williams and Altice prior to May 17th were set out in a letter dated May 10, 1945, to each employee, and agreed to by each, which are as follows:
A new arrangement was entered into on May 17, 1945, as shown by the following letters to Miss Williams and Altice dated May 17, 1945, and agreed to by each, and which are as follows:
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