The opinion of the court was delivered by: KALODNER
This action was brought against the plaintiff's employer, Henry Disston & Sons, to recover alleged unpaid minimum wages, liquidated damages and attorney's fees and costs pursuant to Section 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, 29 U.S.C.A. § 216(b).
The question involved is entirely one of fact, whether the plaintiff was employed in a bona fide executive capacity and therefore exempt from the coverage of the Act under Section 13(a)(1), 29 U.S.C.A. § 213(a)(1), thereof.
1. Henry A. Disston & Sons, Inc., defendant, employed the plaintiff, Edward A. Nadeau, from February 7, 1943, to September 15, 1944, when the plaintiff resigned because of dissatisfaction over a three-day lay-off.
2. Defendant hired the plaintiff at a salary of $ 40 per week for forty-four hours with straight time for all hours worked in excess thereof. In August, 1943, the plaintiff received an increase of $ 7.50 per week, upon the same conditions.
3. At the time of his employment, the plaintiff was placed in charge of the shipping department of the defendant's armor plate division.
4. When first employed the plaintiff had under his direct supervision eight or nine employees. At all times he had no less than four employees under his direct supervision.
5. The plaintiff's time was spent chiefly in supervising the employees under him, directing and checking over their work, and exercising executive and discretionary powers.
6. The plaintiff's recommendations concerning the employees under him were given particular weight.
The testimony in this case was given by two witnesses: By the plaintiff in his own behalf, and by one R. J. Fesmier, plaintiff's superior during the period of his employment, on behalf of the defendant. It is sufficient to say at this point that I fully credit the evidence given by Fesmier.
The defense to plaintiff's claim is based solely on the provision of the Act exempting from coverage executive employees; the principal issue here is whether the plaintiff's work carried the essential characteristics of the exempted class. For these characteristics, it is necessary to examine the regulations promulgated by the Administrator of the Wage and Hour Division. Since plaintiff began his employment in February, 1943, the applicable regulation is that issued by the Administrator, October 12, 1940, effective October 24, 1940 (5 F.R. 4077), as Title 29, Chapter V, Code of Federal Regulations, Part 541, amended January 17, 1942 (7 F.R. 332).
Section 541.1 of this regulation defines the term 'employee employed in a bona fide executive * * * capacity,' as used in ...