duties of employment, ever actually hired any truck drivers or discharged any one of them. Though there is evidence from which it may be inferred that he did, that fact, of itself, is not an essential element of proof. The test is whether he had the authority to do so when and if the occasion for the exercise of it arose. Richter v. Barrett, supra. Occasions upon which the authority was exercised are, of course, corroborative of the existence of it. The same is true with whether particular weight would be given to plaintiff's suggestions and recommendations, as and when made, relating to change of status of other employees.
Upon consideration of all of the evidence, it is the opinion of the Court that the credible evidence, together with the stipulations of fact, established:
1. That plaintiff was employed by defendant as a radio dispatcher from February 5, 1959, to November 6, 1959, in work associated with the transaction of business in interstate commerce by defendant;
2. That during part of the aforesaid period of employment, his salary was $ 110 per week and during the latter part, $ 115 per week, and that he worked in excess of forty hours per week for which he received no additional compensation;
3. That, as radio dispatcher, he was in charge of and managed the LTL Division of defendant's delivery service which was a customarily recognized department or subdivision of defendant's business;
4. That he customarily and regularly directed the work of two or more other employees therein, the number ranging from sixteen to twenty-four;
5. That he had authority to initiate disciplinary action against the truck drivers in the LTL Division; to suspend the employment of drivers or cause the discharge thereof; to authorize overtime pay; and to participate in the adjustment of employee grievances with the shop steward of the union; and that the suggestions and recommendations of plaintiff, within the framework of company policy, to his superiors with respect to the status of truck drivers in the LTL Division were given particular weight;
6. That while he was on duty as a radio dispatcher in the LTL Division, instructions and orders to truck drivers making deliveries were issued by him to them by radio communication;
7. That orders and instructions issued by plaintiff through the radio communication system were binding upon the truck drivers, and they were obliged, by virtue of company policy, to comply therewith;
8. That in the discharge of his duties as a radio dispatcher for the LTL Division, he customarily and regularly exercised discretionary power as to pickups, priority of deliveries, breakdowns and such other matters where instructions and further orders were necessary by reason of unforeseen circumstances arising during the course of deliveries by the truck drivers;
9. That he devoted less than 20% Of his hours of work in the workweek to activities which were not directly or closely related to the foregoing enumerated functions.
The foregoing findings of fact bring plaintiff within the class of executive employees as defined by administrative regulations, 29 C.F.R. § 541.1. It might be added that it also seems to the Court, upon consideration of all of the credible evidence, that plaintiff would likewise come within the exempt classification of 29 C.F.R. § 541.2.
It is, therefore, established to the satisfaction of the Court that it has jurisdiction and that defendant has sustained the burden of proof by a fair preponderance of the credible evidence to establish that the duties of plaintiff's employment brought him within the class of employees exempt from the coverage of the Fair Labor Standards Act, 29 U.S.C.A. § 213(a)(1) and that judgment herein should be entered in favor of defendant and against plaintiff without costs.
An appropriate Order for entry of judgment will be submitted.