defendant did not accept the latter finding; but, of course, it agreed with the favorable finding which coincided with its pre-existing views. The letter plainly indicates that both the favorable and unfavorable findings were based upon the percentage of non-exempt work done by the foremen. Thus defendant could not in good faith rely on the favorable finding except as the particularity of the underlying facts concerning the extent of plaintiff's non-exempt work would continue to justify it.
This letter indicates that the Division investigated the facts concerning plaintiff's work during two periods of time and interpreted them in the light of the Regulation.
The facts relied on by the Supervisor in making his findings are not before the court. This is not the type of interpretation contemplated by § 10. We think that this section refers to "an interpretation of the law with reference to (a set of facts of general applicability)". Giannini v. Standard Oil Company, D.C.N.D.Ind.1955, 130 F.Supp. 740, 751; Burke v. Mesta Machine Co., D.C.W.D.Pa.1948, 79 F.Supp. 588, 610.
In Jenner v. 320 N. 13th St. Co., decided by Judge McGranery of the United States District Court for the Eastern District of Pennsylvania, and reported in Volume 18 C.C.H. Labor Cases, P65784, it was held that a 'ruling' by a Wage and Hour Division Supervisor that a certain employee was exempt, which 'ruling' was later 'codified' in writing by the Regional Attorney, is not the type of administrative ruling contemplated by § 10 as a basis for a good faith defense.
In a statement by the Administrator of the Wage and Hour Division relating to the Portal-to-Portal Pay Act, 29 C.F.R. § 790.19(c), 12 Fed.Reg. 7655; 3 C.C.H.Labor Law Reporter, 4th ed., P24116.19(c), it was said that the administrative ruling relied upon must be:
'* * * actually that of the authority vested with power to issue or adopt regulations, orders, rulings, approvals, interpretations, administrative practices or enforcement policies of a final nature as the official act or policy of the agency. Statements made by other officials or employees are not regulations, orders, rulings, approvals, interpretations, administrative practices or enforcement policies of the agency within the meaning of sections 9 and 10.' (Emphasis supplied.)
Defendant did not request a ruling, approval or interpretation from the Administrator of the Wage and Hour Division nor did it receive any such ruling, approval or interpretation from him or his counsel or other person to whom the Administrator's authority had been delegated. We do not think that the favorable finding in the letter of the Supervisor is equivalent to a ruling, approval or interpretation authorized by the Administrator as is contemplated by § 10 of the Act.
Accordingly, it is this court's opinion that the defense of 'good faith' under § 10 of the Portal-to-Portal Pay Act has not been made out in this case. If perchance we are in error, we would find against defendant on this issue, because instead of relying in good faith on an administrative ruling in refusing to pay plaintiff overtime, it actually relied on the advice of its counsel and its unalterable conviction, maintained from the inception of operations, that its hotend foremen, including plaintiff, were executive employees.
The parties have agreed that the formula prescribed in the case of Overnight Motor Transportation Co., Inc., v. Missel, 1942, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682, should be applied here in determining the overtime compensation due the plaintiff for the overtime hours worked by him. The court agrees with this conclusion since plaintiff was employed at a fixed salary per week to work variable or fluctuating hours. We also think that the production bonus paid him weekly is to be added to the week's salary and the resulting sum is then to be divided by the total hours worked for that week. See 29 U.S.C.A. § 207(d)(3); Walling v. Harnischfeger Corp., 1945, 325 U.S. 427, 65 S. Ct. 1250, 89 L. Ed. 1711; McComb v. Shepard Niles Crane & Hoist Corp., 2 Cir., 1948, 171 F.2d 69, 70-71; Burke v. Mesta Machine Co., D.C.W.D.Pa.1948, 79 F.Supp. 588; Interpretive Bulletin of the Wage and Hour Administrator, 29 U.S.C.App. 7786(b). But see, Walling v. Stone, 7 Cir., 1942, 131 F.2d 461.
Conclusions of Law
1. This court has jurisdiction of the subject matter and of the parties to this action pursuant to the provisions of § 16 of the Fair Labor Standards Act of 1938, as amended.
2. During the period of time in issue in this case, plaintiff was not a supervising executive employee of the defendant as such term is defined and delimited by the conditions contained in Regulation 541.1 of the Wage and Hour Administrator of the United States Department of Labor
and as stated in Section 13(a) of the Fair Labor Standards Act of 1938, as amended.
3. The production bonus payments to plaintiff should be included in the overtime rate computations.
4. The gifts presented to plaintiff on occasion should not be included in the overtime rate computations.
5. Plaintiff is entitled to overtime compensation for the hours worked each week, in excess of forty, in the sum of $ 264.60.
6. The plaintiff is not entitled to liquidated damages in any amount.
7. The defendant did not in good faith fail to pay plaintiff overtime compensation in reliance on an administrative ruling or approval which would bar recovery under § 10 of the Portal-to-Portal Pay Act, 29 U.S.C.A. § 259.