Wilkinson v. Noland Co.

• Decision Date: 30 September 1941
• Docket Number: No. 142.,142.
• Citation: 40 F. Supp. 1009
• Court: U.S. District Court — Eastern District of Virginia
• Parties: WILKINSON et al. v. NOLAND CO., Inc.

40 F. Supp. 1009

WILKINSON et al. v. NOLAND CO., Inc.

No. 142.

District Court, E. D. Virginia, Norfolk Division.

September 30, 1941.

WYCHE, District Judge.

In this case the plaintiffs seek to recover from the defendant the sum of one thousand, nine hundred, eight and 26/100 ($1,908.26) dollars, plus a like amount as liquidated damages, together with costs, and a reasonable attorney's fee, under the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. §§ 201—219. It was tried before me without a jury.

The facts are substantially as follows:

The defendant is a large company engaged in the wholesale jobbing and buying of plumbing, heating and other building supplies from manufacturers in and out of the State of Virginia, and transporting and shipping such materials in interstate commerce to and from its principal office in the City of Newport News, Virginia, and its other eighteen branches in several states and the District of Columbia, employing some five hundred employees. Its yearly purchases and sales run into many millions of dollars. A vast portion of the business is done through its home office at Newport News and is divided essentially into four departments, the Executive, the Department of Finance, the Department of Purchases and Costs and the General Sales Department. The Department of Purchases and Costs is one of the principal administrative units of the company.

The plaintiff W. H. Wilkinson, Sr., had been in the employ of the defendant for the most part of seventeen or eighteen years, occupying various positions of responsibility in Roanoke, Virginia, Spartanburg, South Carolina, West Palm Beach, Florida, and Washington, D. C., and for some eight or ten years prior to the time that he left the services of the company he occupied the position of Assistant Purchasing Agent and Acting Purchasing Agent for the company and all of its branches. His salary increased depending upon the positions he occupied, until the year 1938, he received a total compensation from the company of $4,370 and for the year 1939 his total compensation was $5,405. He had a wide latitude of powers and discretion commensurate with the position of Assistant or Acting Purchasing Agent in a company the size of the defendant. He had the power to hire and fire employees in his department, and to advance or demote the same or recommend such, and whose recommendation was given particular weight, and exercised such powers. He had a private office, and, in an adjoining office under his direct supervision were about twenty employees. He had two stenographers, one of whom was considered his secretary and to whom he gave most of his dictation. He exercised broad discretion in correspondence in the name of the company, in matters pertaining to his department, consulted with salesmen attempting to sell large orders to his company, and committed his company to many hundreds of thousands of dollars a year over his own signature. He made or supervised the making of the price catalogue of the company, which was characterized by the president as the yardstick on which was set the selling price on goods that the company purchased. He issued bulletins to all the branch managers, over his own signature, and was authorized to see that his orders were carried out. He was frequently consulted by the president and general manager on the state of the market to buy pipe, fixtures, copper, lead, iron and other commodities, and frequently was instructed to, and did buy for the company large amounts on his own judgment. He initiated large increases and reductions of inventory. He frequently, without instruction, made trips to various branch offices for the purpose of supervising sales and auditing accounts. He had no limit on his expense account, either for his own expense or entertainment purposes, and the same was uniformly paid.

Prior to October, 1938, William J. Burke had been Purchasing Agent for the defendant, and W. H. Wilkinson, Sr., had been Assistant Purchasing Agent for a number of years. In 1938 Mr. Burke was transferred to the position of manager of the Newport News branch and a bulletin was issued appointing W. H. Wilkinson, Sr., as Acting Purchasing Agent, in which capacity he acted in complete charge of the Department of Purchases and Costs and performed the duties above hereinbefore enumerated. On October 2, 1939, Mr. Learner was appointed Purchasing Agent, Wilkinson, Sr., continuing in his position as Assistant Purchasing Agent with his powers and duties unchanged, except that Mr. Learner was actually head of the department, Mr. Wilkinson's own statement being "I was doing the same class of work from October, 1938, until the time I was discharged."

The record consists of correspondence, bulletins, purchase orders, company directories, and on September 23, 1938, when the defendant moved into its new building in Newport News, it issued a full page advertisement, which was admitted as an exhibit, showing "Noland Company's Officers and Department Heads", and there exhibited is Mr. Wilkinson's picture, and under it these words: "Assistant Purchasing Agent", and following that a brief biography as follows: "Walter Hopkins Wilkinson, Assistant Purchasing Agent, General Office. Starting as price clerk, Roanoke, 16 years ago. Promotions: Salesman, Roanoke; Office Manager, Spartanburg; Assistant Manager, West Palm Beach; Assistant Purchasing Agent since 1934."

During the time that this plaintiff was employed during the effective period of the Act he did not make any claim for overtime, although he, as the head or acting head of his department, had specific and repeated instructions from the president or general manager concerning reporting overtime for those entitled to the same, on forms prepared for that purpose and delivered to him. These forms were posted on the bulletin board used for bulletins and other information in which all officers, administrative heads and employees were interested. It was not until about three months after his resignation, July 5, 1940, that Mr. Wilkinson and his son made any claim for overtime and the occasion for that was because, as he stated, Mr. L. U. Noland, president of the defendant company, called upon Wilkinson, Sr., to pay or otherwise take care of Wilkinson's past due note, on which Mr. Noland and Mr. Ferguson, another officer of the company, were accommodation endorsers. The balance due on the note was $1,000, which, with interest and collection fees, amounted to approximately the amount claimed for overtime for Wilkinson and his son, which he stated in the letter to be $1,297.12.

It was not the intention of Congress in passing the Fair Labor Standards Act to include an employee, pictured by the foregoing facts, to benefit from its terms and provisions. Congress expressly by section 13(a) (1), 29 U.S.C.A. § 213, exempted employees employed in a bona fide executive and administrative capacity (as such terms are defined and delimited by Regulations of the Administrator).

An executive is a reasonably well understood term, and duties in such capacity relate to active participation in control, supervision and management of a business. Doing routine menial labor is not acting in an executive capacity. An administrator is one who administers, a manager. One who administers affairs; one who directs, manages, executes or dispenses. Arkansas Amusement Corporation v. Kempner, 8 Cir., 57 F.2d 466. See, also, 15 Words and Phrases, Perm. Ed., 580, et seq.; and 2 Words and Phrases, Perm. Ed., 436, et seq.; Saint v. Allen, 169 La. 1046, 126 So. 548; Nissen v. Winston-Salem, 206 N.C. 888, 175 S.E. 310; Heafy v. McCabe, 270 N.Y. 616, 1 N.E.2d 357.

In November, 1938, the Administrator, under the authority of the Act, Section 13 (a) (1) "defined and delimited" by Regulation, Part 541.1 as follows: "Section 541.1 — Executive and Administrative. The term `employee employed in a bona fide executive (and) administrative * * * capacity' in section 13(a) (1) of the Act shall mean any employee whose primary duty is the management of the establishment, or a customarily recognized department thereof, in which he is employed, and who customarily and regularly directs the...