discretion and independent judgment. These employees, Messrs. Dodds, Steiner and Lowen, are justifiably regarded by the defendant as exempt under § 13(a)(1) of the Fair Labor Standards Act.
6. Herbert Kerr 7. Wilbur Surasky
The last category of employees to be considered comprises Herbert Kerr and Wilbur Surasky. In the case of Mr. Kerr, he has a number of clerks under his control and he devotes by far the greater amount of his time during the hours from 6:30 p.m. until 2:30 to 3:30 a.m. in the matter of ascertaining classifications or ratings of shipments and computing rates. He averages 700 such computations in the course of each night's work. He estimated that he could set down the rating and rate of 650 of the shipments but that 50 of them would require research with regard to classification and rate. For this information he would turn to various compendia of information containing classifications, tariffs, et cetera. At times when he had ascertained the necessary information he made the extensions thereof as the shipment information indicated on a copy of the waybill. At other times the extensions were done by clerks who functioned under his command. He received a salary of $ 95 per week.
A consideration of the same regulations involved in the cases of Messrs. Dodds, Steiner and Lowen, the so-called dispatchers, leads to the opposite result in his case. Although he undoubtedly had areas of work requiring administrative capacity in the personnel field with his authority over six clerks who worked with him, whose duties were supplementary to his own, including the receipt and checking of cash income, they cannot be said to be in the administrative field with regard to the general operations of the defendant contemplated by the regulations.
The essence of his work required him to exercise no substantial discretion but simply, efficiently and accurately to ferret out of the information provided for him in the way of source data that formed the basis for the charges made by the defendant for its work. This required a considerable degree of skill and proficiency but does not fall into the sphere of administrative capacity which takes him out of the purview of the Fair Labor Standards Act.
His colleague, Mr. Surasky, worked during the daytime from 8:30 a.m. to 5:30 p.m. generally, although he frequently was at work as early as seven o'clock in the morning, and also at times worked on Saturday. His pay amounted to $ 91 a week, and if, as and when he was paid overtime it was at straight time pay. His chief task was to check and audit the computations made by Mr. Kerr and other similar computations made by other employees in the defendant's system so that each day he audited between 1100 and 1200 items of billing. He also was the superior of a clerk who supplemented his calculations. The traffic manager of the defendant frequently consulted him for technical information, and to that extent it appears that the defendant regarded him as assistant to the traffic manager. The great volume of his work, however, was the necessary auditing of the computations made by others and the processing of corrections of errors. His work was productive of a mass of corrections, averaging, in estimate fifteen percent of the total billings examined by him. Again, his work necessitated efficient and accurate computational manipulations but not of a nature fraught with the exercise of discretion in the performance of duties going directly to the general business operations of his employer as to give him the administrative status of an employee outside of the Fair Labor Standards Act. The defendant is not justified in regarding either Mr. Kerr or Mr. Surasky as coming within the exemption provided for in § 13(a)(1) of the Fair Labor Standards Act.
The foregoing shall constitute Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
Plaintiff is entitled to a judgment enjoining the violations as found herein, as authorized by § 17 of the Fair Labor Standards Act.
The parties should agree on the form of decree or it should be noticed by the plaintiff for settlement on a motion day.