Walling v. Yeakley, 2772.

• Decision Date: 04 January 1944
• Docket Number: No. 2772.,2772.
• Citation: 140 F.2d 830
• Parties: WALLING, Administrator of Wage and Hour Division, U. S. Dept. of Labor, v. YEAKLEY et al.
• Court: U.S. Court of Appeals — Tenth Circuit

140 F.2d 830 (1944)

WALLING, Administrator of Wage and Hour Division, U. S. Dept. of Labor, v. YEAKLEY et al.

No. 2772.

Circuit Court of Appeals, Tenth Circuit.

January 4, 1944.

Peter Seitz, Atty., U. S. Dept. of Labor, of Washington, D. C. (Douglas B. Maggs, Sol. and Bessie Margolin, Asst. Sol., both of Washington, D. C., Reid Williams, Regional Atty., of Denver, Colo., Morton Liftin, H. Michele Olsson, and Flora G. Chudson, Attys., U. S. Dept. of Labor, all of Washington, D. C., on the brief), for appellant.

Merle M. Marshall, of Alamosa, Colo., for appellees.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

Walling, as Administrator of the Wage and Hour Division, United States Department of Labor, brought this action against N. O. Yeakley and J. B. Yeakley seeking an injunction to restrain them from violating §§ 15(a) (1), (2), and (5) of the Fair Labor Standards Act of 1938,¹ 52 Stat. 1060, 29 U.S.C.A. § 215(a) (1, 2, 5).

The decree below enjoined violation generally, but excluded therefrom the bookkeeper-office manager and the head miller. Walling, as Administrator, has appealed from that portion of the decree denying an injunction with respect to the bookkeeper-office manager and the head miller.

Section 13 of the Act, 29 U.S.C.A. § 213, in part, provides:

"The provisions of sections 6 and 7 shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator); * * *."

By regulation the Administrator has defined and delimited the terms bona fide executive, administrative, and professional capacity. The regulations, in part, read:

"Executive. The term `employee employed in a bona fide executive * * * capacity' in section 13(a) (1) of the Act shall mean any employee * * *

"(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), * * *" (29 U.S.C.A. Appendix § 541.1.)

"Administrative. The term `employee employed in a bona fide * * * administrative * * * capacity' in section 13(a) (1) of the Act shall mean any employee

"(a) who is compensated for his services on a salary or fee basis at a rate of not less than $200 per month (exclusive of board, lodging, or other facilities) * * *." (29 U.S.C.A. Appendix, § 541.2.)

"Professional. The term `employee employed in a bona fide * * * professional * * * capacity' in section 13(a) (1) of the Act shall mean any employee who is * * *

"(b) compensated for his services on a salary or fee basis at a rate of not less than $200 per month (exclusive of board, lodging, or other facilities): Provided, That this paragraph shall not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof." 29 U.S.C.A. Appendix § 541.3.

The salary paid the bookkeeper-office manager by the Yeakleys has never equaled $30 per week. The salary paid the head miller by the Yeakleys has never equaled $200 per month.

The trial court held that the salary requirements of the regulations were arbitrary and unreasonable, and that the bookkeeper-office manager was exempt as an executive employee, and the head miller as a professional employee.

Congress exempted employees employed in bona fide executive, administrative, or professional capacities. It realized, however, that the phrases "bona fide executive capacity," "bona fide administrative capacity," and "bona fide professional capacity" would not fix absolute standards or a definite classification within or without which particular employees would fall, and that it was desirable that such phrases be defined and delimited. Congress did not undertake itself to define and delimit such phrases, but delegated that duty to the Administrator. It did not direct that criteria should be laid down as an aid in determining what employees fell within or without the exempted employments, but that the phrases should be made certain by specific definition and delimitation. "Define" means "to state explicitly; to limit; to determine the essential qualities of; to determine the precise signification of; to set forth the meaning or meanings of." "Delimit" means "to fix or mark the limits of; to demarcate; bound."² Congress chose general phrases to describe the exempted classes of employees and delegated to the Administrator the power and duty, by regulation, to define and delimit those classifications by reasonable and rational specific criteria. Necessarily, if the classifications are limited by specific definition and delimitation, some employees who might fall within the general meaning of the phrases employed by Congress will be excluded. Exclusion usually results when we descend from the general to the particular, and Congress must have realized that specific definition and delimitation which would result in certainty of application would of necessity exclude some employees who might otherwise be regarded as within the general phrases used by Congress. Nevertheless, Congress did not see fit to leave embraced within the exempted employments every employee who might fall within the general meaning of the phrases employed, but directed the Administrator to specifically define and delimit such phrases. Congress thereby manifest a policy of having specific criteria laid down by the Administrator by which employer and enforcement agency could determine with certainty whether an employee fell within or without one of the exempted employments. It was important that the employer and the employee know, when the Act became effective, whether the employee was exempted or excluded by exemption from the provisions of the Act. Congress obviously believed that it was better to have the exempted employments defined with precision and certainty, even...