The opinion of the court was delivered by: SHAW
This action is brought by plaintiff against defendant pursuant to the provisions of 29 U.S.C.A. § 216(d) to recover overtime compensation as provided by 29 U.S.C.A. § 207(a), together with an additional equal amount as liquidated damages, plus counsel fee and costs.
Defendant denies that the statutory provisions above cited are applicable, contending that plaintiff was an employee within the exempt statutory classification of 29 U.S.C.A. § 213(a)(1) as defined by administrative regulations set forth in 29 C.F.R. § 541.1, also appearing in Title 29 of the United States Code Annotated, at page 550.
It was stipulated by the parties that the plaintiff was in the employ of defendant from February 5, 1959, to November 6, 1959; that during this period defendant was engaged in the transaction of business in interstate commerce; and that plaintiff performed work in excess of forty hours per week for which he received no additional compensation. The burden of proof was thereupon cast upon defendant to establish that plaintiff was within the class of employees exempt from the coverage of the Fair Labor Standards Act. Richter v. Barrett, 173 F.2d 320 (3rd Cir., 1949).
The exempt classification upon which defendant relies is defined as follows by administrative regulations, 29 C.F.R. § 541.1:
'The term 'employee employed in a bona fide executive * * * capacity' in section 13(a)(1) of the act shall mean any employee:
'(a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and
'(b) Who customarily and regularly directs the work of two or more other employees therein; and
'(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
'(d) Who customarily and regularly exercises discretionary powers; and
'(e) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, that this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20-percent interest in the enterprise in which he is employed; and
'(f) Who is compensated for his services on a salary basis at a rate of not less than $ 80 per week (or $ 55 per week if employed in Puerto Rico or the Virgin Islands) exclusive of board, lodging, or other facilities: Provided, That an employee who is compensated on a salary basis at a rate of not less than $ 125 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all of the requirements of this section.'
The title of radio dispatcher assigned to plaintiff's position, standing alone, has no significance in the determination of whether or not he was in the exempt status; the duties of his employment are the controlling factors. Cf. McComb v. New York & New Brunswick Auto Express Co., 95 F.Supp. 636 (D.C.N.J.1950); Mitchell v. Branch Motor Express Co., 168 F.Supp. 72 (E.D.Pa.1958).
The issue is one of fact, and the disposition thereof depends upon whether or not defendant has established by a fair preponderance of the credible evidence adduced at trial that the duties of plaintiff's employment were such as to bring him within the class of an 'employee employed in a bona fide executive * * * capacity.'
Edward A. Schaub, one of the executive employees of defendant, testified that he hired plaintiff at the time that defendant made a decision to place two-way radios in some of its delivery trucks. He stated, in substance, that delivery service was conducted by two divisions, one of which was known as 'less than truck-load size' (referred to as the LTL Division) and the other known as 'full truck load.' The LTL Division trucks traveled over interstate routes, making deliveries at various points along the assigned routes. The 'full truck load' division trucks deliver a full load to one particular destination. The LTL ...