all large modern plants employees are not usually hired by foremen, or even by high executive officers. That is usually done by an employment department. In this case, in several instances, recommendation of a foreman led to employment. After the employee had been approved by the employment director his name was still submitted to the foreman who had the power to reject him. As to the right to discharge an employee, while the right was seldom exercised and, owing to shortage of employees the ordinary method was to submit the recommendation to a higher executive, it was exercised several times. Certainly the recommendation of the foreman as to hiring and firing and as to promotion or otherwise of employees was given particular weight. Some of the plaintiffs, albeit somewhat reluctantly, admitted that they had recommended advancement in rates of payment to employees which had been approved by higher executives or administratives.
The fourth test of an exempt executive employee, prescribed by the Regulations, is found in the provision that he is one 'who customarily and regularly exercises discretionary powers * * * .'
The testimony of a number of the plaintiffs, if it were alleged to be evasive, would convict one who so described it of understatement. In fact all of the plaintiffs who testified denied that they had any discretionary power in the exercise of their authority as 'bosses.' Some of them even denied any discretion when faced with their written exercise of such powers. Their attitude was doubtless due to a misconception of what constituted 'discretionary power.' On their examination their counsel put to them such questions, in substance, as: Did you have control of the operation of the LaBelle Works? And did you have control of the operation of the (specified) department of the LaBelle Works? In reply to such questions the natural answer was a negative. From time to time it developed, however, that plaintiffs were not without discretionary power. For example, when employees had a grievance or complaint, or a request for increase in wages, they were required to present it first to their foreman. In writing he either approved or disapproved the employees' contention. It then went to the higher executive officers, who always considered the ruling of the foreman, occasionally approving and at times disapproving his recommendations. The foreman, when a doubt arose as to the rejection or approval of a partly completed article, had the power to determine whether it should be rejected or an attempt should be made to perfect it. Also, the foreman could determine whether or not material, alleged to be of no use to the company, could be removed from the plant. He also gave permission to employees to leave the Works prior to the end of the shift, and approved or disapproved of resignation from service of the defendant. Each foreman was responsible for safety requirements in his section.
No question exists as to the next test of exemption. Each foreman was compensated for his services at more than $ 30 per week.
As usual in cases in this type under the Fair Labor Standards Act, the testimony varied widely in respect to the last test laid down in the amended Regulations. The plaintiffs who testified each declared that he had performed by nonexempt employees in excess of 20% of the number of hours worked by the nonexempted employees under their direction. This testimony was by no means satisfying. The plaintiffs were interpreting the Regulations in accordance with their desires rather than from a consideration of their actual duties. The foremen were specially skilled men, and as such required to instruct the employees under them. If in the course of such instruction it became necessary to operate a machine for a time while the employee viewed and learned the operation, the foreman in the operation was doing what his appointment required and was not doing nonexempt work. In the special opinion, issued September 4, 1941, Administrator Fleming said in part:
'The operation of a machine under such circumstances, while the employee being instructed watches the operation, is an essential part of the supervisory duties and is exempt work.'
Some of the foremen included in the nonexempt work claimed by them the clerical work they performed in maintaining production and personnel records and making reports in connection with their particular department. Such work was clearly a part of supervisory duty, although resembling the duty of a bookkeeper. See the Stein Report. Of the same nature was work necessary in the inspection and testing of the work of employees under supervision. Even when a foreman, in an emergency, temporarily aided an employee in the LaBelle Works in his job, such aid was not nonexempt work. This was admitted by the plaintiff Muller. In a grievance form, promoted by the union upon complaint that Lambert, Muller's superior officer, had prepared an ash hoist, Muller stated that neither he nor Lambert did more than 20% of nonexempt work. He testified to the contrary upon trial.
As against the testimony of the plaintiffs the officers of the defendant company denied the testimony as to nonexempt work by foremen. This was after their testimony as to their opportunities to observe their functioning.
The superintendent of the plant testified that he specially warned foremen to avoid nonexempt work, as he feared trouble from the union in event of any complaint along that line.
The testimony of the officers of the LaBelle Works appeared to the court to be less colored by interest than was that of the plaintiffs in respect to nonexempt work, and has satisfied it that the foreman, except in a possible temporary emergency, had performed no nonexempt work, and had not regularly performed it in excess of the 20% limit.
Finding, as does the court, that the foremen plaintiffs were exempt employees under the Regulations of the Administrator, judgment will be ordered in favor of defendant.
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