352 F. Supp. 1266 (1973) | Cited 0 times | W.D. Arkansas | January 18, 1973


The defendant, Beckman Dairy Company, is a family owneddairy corporation engaged in interstate commerce andadmittedly covered by the Fair Labor Standards Act 29 U.S.C. § 201et seq.

The plaintiff, Marion White, was an employee of Beckmanduring the interval from March 13, 1970 through April 23,1971, the period involved in this action.

Mr. White had been employed by Beckman for a number of yearsprior to March 13, 1970 and was the Plant Manager for Beckmanduring the entire period of his employment. Apparently he waspleased with his relationship with Beckman until after Mrs.Jim Beckman assumed active control of the family corporation,when she made Tom Biggs, a comparatively young man, the activebusiness manager and superintendent of Beckman Dairy. Whenthat occurred, friction developed which led to the firing ofMr. White on April 23, 1971.

At the time of leaving Beckman's employ Mr. White was paidall monies he claimed to be due him, including vacation payand severance pay. He voiced no claim of any kind until March10, 1972 when he commenced this action alleging that Beckmanowes him $1,236.00 as back wages and seeking in additionpenalty and attorney fees.

The defendant, Beckman, admits the employment of Mr. Whiteas Plant Manager and pleads that White was an "executive" andexempt under 29 U.S.C. § 213(a)(1) as defined by 29 C.F.R. § 541.

The evidence is in conflict. White contends that he workedan average of 61.25 hours per week and testified with somedegree of specificity concerning the actual hours worked in atypical week. He was not required to punch the time clock, butordinarily he punched it for an "in" time. On no occasion didhe ever punch "out". He was his own boss. He had an office anda telephone and most of the time a truck for his personaltravel.

The plaintiff has summarized the testimony of thedefendant's witnesses as follows:

Tom Biggs testified in substance: I was employed by Beckmanas GeneralManager in 1969, and while I had not had previous experiencein operating a dairy, I had a degree in Industrial Engineeringand had had a year experience at Whirlpool. White was PlantManager when I was employed, and continued in such capacityuntil I let him go. As Plant Manager, White supervised thehourly plant employees, and after Reeves was employed asforeman, supervised him. White could not hire or fire, but didsome interviewing of prospective employees and maderecommendations to me, although applications for employmentwere obtained in the office. With reference to firing, I couldnot even fire, except for cause set out in the contract,although White could recommend that a slip be given toemployees, although I do not remember any being requested.White was required to determine production to be done by theplant, do the ordering of items to be used, could move personsaround in the plant from one job to another, withinlimitations of the contract. To the best of my knowledge,White had all of the men he needed to run the plant. Oftenwhen I would go into the plant in the early part of theafternoon, I would not see White there. Defendant's Exhibit"2B" is an organizational chart of Beckman, and reflects thatWhite is the Plant Manager and as such answers to the GeneralManager.

Defendant's Exhibit "C" is a packet of invoices ofInterstate Electric Co. for repairs made by them for Beckman.Defendant's Exhibit "D" is a list of the number of employeessupervised by White, by the week during the period inquestion. Defendant's Exhibit "E" is a copy of the unioncontract of Beckman. Defendant's Exhibit "F" is a table of theaverage number of hours worked, per week, during the period bythe Plant Hourly Employees, and includes both full timeemployees and part time employees.

During the period in question here, the plant was actuallyin operation 4 days per week, Monday, Tuesday, Thursday andFriday, although plaintiff and a few others worked six daysper week. White was not required to punch in and out, as hourswere not used in figuring his pay, but he was paid a flatweekly salary of $164.15 and furnished an automobile with avalue of $10 per week, until approximately six weeks beforehis discharge, and then the automobile was taken and thesalary increased to $174.15 per week.

Reeves testified in substance:

I am presently the Plant Manager of Beckman, had worked asa machine operator at Acee Milk Co., for six years, thenworked for several years at the Mulberry Lumber Company,coming to Beckman as Foreman under White. I believe I wasemployed by Beckman the latter part of July, 1970, and workedfor about a month as a relief driver, and around the 1st ofSeptember, 1970, started working as foreman under White, whereI continued until I replaced him as Plant Manager.

I do not know what White did before I started working underhim, and do not know what he was doing when I was not withhim, but after going to work under him, did fill in for oneman when he was on vacation. I would estimate that White wouldspend approximately 20% of his time at manual labor, from 18%to 22% would, I believe be the extremes. I would ordinarilyget to work around 7:00 A.M., and do not know what White woulddo before I arrived. Occasionally, White would permit me toleave work around noon. I was paid a flat salary instead of bythe hour, but did punch in and out until I became PlantManager, and do not now punch in or out. White would oftenleave the plant by 1:00 to 2:00 P.M. while I was there. OnWednesdays, White would work on equipment for approximately 4hours, as we did most of our maintenance on that date sincethe plant was closed.

The plant was working 4 days per week and on Wednesday andSaturday when the plant was closed we could do maintenance andother things needed, but on Saturday, we would try to getfinished as soon as possible and go home, and would finisharound noon.

Taft testified in substance as follows:

I have been with Beckman for 12 years and am MaintenanceHelper. While White was at the plant, he was the MaintenanceMan and I was his helper. I did maintenance work outside theplant, in the yard, and also did some work in Mrs. Beckman'syard. I was at the plant 6 days a week, and inside about halfthe time. I didn't see White operate any of the machines, andI would sometimes relieve some of the dock workers who wouldfinish around 1:30 to 2:30 P.M.

I would ordinarily get to work around 7:30 A.M., and most ofthe work I did for Mrs. Beckman would be in the afternoon. Ido not understand how the plant workers could come to work at7:00 A.M. and leave at 1:30 to 2:30 P.M. and be working anaverage of 8 to 10 hours per day.

On Wednesday, White would not work more than two hours onequipment.

I do not know what White would be doing when I was not inthe plant.

In addition, we have the evidence of Mr. William R. Turner,Compliance Officer for the Wage and Hour Enforcement,Department of Labor, who testified that he had made aninvestigation; had given the results to Beckman, but that hisdepartment had not taken any action.

From this conflicting evidence the Court is asked todetermine whether or not White was an "executive" and if not,to determine what work he did that would entitle him to "backwages".

Title 29, Part 541 of the Code of Federal Regulations, beingthe Regulations and Interpretations of the United StatesDepartment of Labor governs the interpretation of theexemption provided by 29 U.S.C.A. § 213(a)(1) concerning thedefinition of the "executive" exemption.

The plaintiff is exempt from the coverage of the Act if hefalls within the "executive" definition of the applicableregulations and statutes, in that:

A. His primary duty consisted of the management of acustomarily recognized department; and

B. He customarily and regularly directed the work of two ormore other employees; and

C. He had the authority to hire or fire other employeesunder his supervision or at least his suggestions concerningthe hiring and firing of hourly employees was given particularweight by the general manager; and

D. He customarily and regularly exercised discretionarypower; and

E. He did not devote more than 20% of his hours of work inthe work week to activities which were not directly andclosely related to the performance of the work described inParagraphs A through D above; and

F. His rate of pay was in excess of $125.00 per week,exclusive of board, lodging or other facilities; and

G. He was compensated at least weekly on a salary basis fora predetermined amount which was not subject to reductionbecause of variation in the quality or quantity of workperformed during the week and without regard to the number ofdays or hours worked. George Lawley and Son Corp. v. South, 1Cir., 140 F.2d 439, cert. denied, 322 U.S. 746, 64 S.Ct. 1156,88 L.Ed. 1578.

We note that these 6 tests are placed on the requirement forexemption, all being tied together by an "and".

The burden is on plaintiff to prove by a preponderance ofthe evidence, first the number of hours which he actuallyworked and, second the amount of wages due him for the workperformed. The evidence to sustain this burden must bedefinite and certain. Johnson et al. v. Dierks Lumber and CoalCompany, 130 F.2d 115 (8 Cir. 1942). Although the Act is to beconstrued liberally for a claimant the requirements of theforegoing rule cannot be disregarded or lessened.

In Retail Store Employees Union v. Drug Fair Community Drug,307 F. Supp. 473 (USDS Dist. of Columbia 1969) the courtstated:

"Plaintiffs have the burden of proof as to all elements of their claim for relief. They must prove that there exists an employee-employer relationship; that there was engagement in activities within the coverage of the Act; that the employer violated the wage requirements; and that a definite amount of compensation is due."

In applying the test to determine whether or not the evidenceproduced by the plaintiff is definite and certain theplaintiff's credibility is an issue. In Hoff et al. v. NorthAmerican Aviation, Inc., 67 F. Supp. 375 (N.D.Texas 1946) inrejecting a claimant's proof concerning the amount ofnon-exempt work which the plaintiff performed in excess of the20% limitation under the executive exception the Court said:

"Each of them was deeply interested in the outcome of the cause. The witnesses who did not agree and who testified otherwise, were all disinterested . . ."

Here, although the plaintiff initially testified concerningthe number of hours worked; on cross-examination his"estimates" were shown to vary substantially and were inconflict with the testimony of the present plant manager whotestified that he was performing the identical duties. InAnderson v. Federal Cartridge Corp., 62 F. Supp. 775 (D.C.Minn. 1945), the Minnesota District Court acknowledged theunreliable nature of evidence produced by claimants severalyears after they had performed their duties. See also Dumas v.King, 157 F.2d 463 (8 Cir. 1946) which held that a trialcourt:

". . . was not bound to accept King's general testimony, unsupported by extraneous evidence such as records, etc., or by other credible testimony, that throughout the period of his employment he had worked at least 72 hours overtime a week . . ."

The plaintiff's testimony concerning whether or not he workedovertime was countered by the defendant through the testimonyof the present plant manager, and there was evidence thatduring the period complained of the plant did not operate inexcess of 40 hours per week at any time.

However, the question of whether or not plaintiff fallswithin the "executive" exemption is purely one of fact to bedetermined by the trial court. Dumas v. King, supra; Gill etal. v. Mesta Mach. Co., 165 F.2d 785 (3 Cir. 1948).

In spite of the conflict in the testimony and the numericalsuperiority on the defendant's side, we find that White wasnot exempt because he devoted approximately 22 1/2% of histime to activities that constitute labor as distinguished from"executive" work.

The next question is: How many hours of overtime did Whitework for which he is entitled to back pay?

Again we note the conflict in the testimony and thenumerical superiority of witnesses for the defendant.

In spite of that superiority and the complete good faith ofthe defendant, the Court finds that the plaintiff has met theburden of proof to satisfactorily show that he is entitled to$500.00 in back pay. The good faith of the defendant wasevidenced by the fact that at the time the plaintiff wasdischarged he was paid severance pay and vacation pay. He madeno protest and defendant thought this was all that was due tohim. During his seven years of employment in this jobplaintiff had never complained about his rate of pay.

The plaintiff has sued for liquidated damages in addition tounpaid wages, and the Fair Labor Standards Act does providefor such damages, 29 U.S.C.A. § 216(b). Whether or not suchliquidated damages should be awarded lies within the sounddiscretion of the Court. Clougherty v. James Venor Co.,187 F.2d 288 (6 Cir. 1951), cert. den. 342 U.S. 814, 72 S.Ct. 28,96 L.Ed. 616; and Foster v. Irwin, 258 F. Supp. 709 (E.D.La.1966). Therefore, due to the good faith of the defendant theCourt is not compelled to make such an award and theplaintiff's claim for liquidated damages is hereby denied.

As the Court stated in Wirtz v. Harrigill, 214 F. Supp. 813(S.D. Miss. 1963), affirmed 328 F.2d 963 (5 Cir. 1964).

"This Fair Labor Standards Act is designed and intended as a shield to protect the unwary and not as a sword on which to impale an unsuspecting employer who is engaged in a business and honestly exercises a reasonable effort in good faith to comply with all the required provisions of such act." 214 F. Supp. at 815.

In the case of Foster v. Irwin, supra, the Court held:

". . . The section respecting award of attorney fees to the employees' attorney has been held to be mandatory and unconditional. Wright v. Carrigg, 4 Cir., 275 F.2d 448. The amount of the fee to be awarded is left to the sound discretion of the Court. Stilwell v. Hertz Drivurself Stations, 3 Cir., 174 F.2d 714."

Accordingly, we find that the plaintiff will be entitled toan attorneys fee of $250.00 and the costs of this case, butdue to good faith of defendant, no liquidated damages will beawarded.

Clerk will prepare the order.

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