I am unable to concur in the conclusion of the majority either as to a part of the factual situation presented or that the entire claim of the appellant should be disallowed. In order to present fully my views as to the facts and the application of the law thereto, I find it necessary, in a measure, to cover some of the same ground as set forth in the majority opinion.
This action was brought by M.L. Cotton against the Weyerhaeuser Timber Company under the fair labor standards act of 1938 (52 Stat. 1060, 29 U.S.C.A., §§ 201-219), which became effective October 24th, for alleged overtime services performed for the defendant during the years 1938, 1939, and 1940. A trial before the court resulted in a judgment dismissing the action, from which dismissal plaintiff appeals.
The theory of appellant is that he was employed by the respondent as bookkeeper and clerk in its office at Melbourne; *Page 314 that respondent was engaged in the business of cutting, logging, and manufacturing its timber for commerce; that he had rendered services to respondent beyond and outside the hours prescribed by law for the doing of the work for which he was regularly employed; and that, by virtue of the act, he became entitled to extra compensation beyond his agreed salary.
The respondent, in its answer, denied generally the material allegations of the complaint and pleaded affirmatively that its Melbourne activities were intrastate; that the appellant is estopped from claiming overtime compensation for the reason that he did not at any time report or make known to respondent that he was working overtime, and any overtime work he did was without its knowledge or consent; also, that appellant was employed by respondent in the capacity of office manager until August 1, 1940, and thereafter as bookkeeper, and that, from the taking effect of the act until August 1, 1940, his duties were in a bona fide executive capacity; that he was employed at a fixed and stated monthly salary, and not on an hourly wage, hence he was not affected by the act.
The affirmative matter of the answer, in so far as it affected his right of recovery, was denied by appellant in his amended reply.
The trial court made and entered findings of fact to the effect that, at all times involved, appellant was employed and engaged in the production of goods for interstate commerce, or in an occupation necessary to such production, and his employment was in a bona fide executive capacity; that his employment was at a monthly salary which exceeded the minimum wage prescribed by the act, and it was paid currently as it accrued, and appellant was therefore exempt from the provisions of the act; also, that he failed to prove by a preponderance of the evidence that he had been employed for any work week in excess of that specified in subd. (a) of § 7, p. 1063, of the act (29 U.S.C.A., § 207 (a)), and that the evidence did not establish that he had been so employed. *Page 315
The applicable sections of the act to this case are 3, 7, 13, and 16 (29 U.S.C.A., §§ 203, 207, 213, and 216), and read as follows:
"§ 203 [29 U.S.C.A.] Definitions
"(e) `Employee' includes any individual employed by an employer.
"(g) `Employ' includes to suffer or permit to work."
"§ 207. Maximum Hours
"No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce —
"(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,
"(2) for a workweek longer than forty-two hours during the second year from such date, or
"(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
"§ 213. Exemptions
"(a) The provisions of sections . . . 207 of this title shall not apply with respect to (1) any employee employed in a bona fide executive . . . capacity . . . (as such terms are defined and delimited by regulations of the Administrator); . . ."
"§ 216. Penalties; civil and criminal liability
"(b) Any employer who violates the provisions of section . . . 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid . . . overtime compensation . . . and in an additional equal amount as liquidated damages. . . . The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."
In October, 1938, the administrator issued regulations defining and delimiting an employee employed in a bona fide executive capacity as used in § 13 (a) (1) of the act (29 U.S.C.A., § 213 (a) (1)), as follows:
"Section 541. 1. Executive. The term `employee employed in a bona fide executive . . . capacity' in Section 13 (a) (1) of the Act shall mean any employee *Page 316
"(1) whose primary duty is the management of the establishment, or a customarily recognized department thereof, in which he is employed,
"(2) who customarily and regularly directs the work of other employees therein, and
"(3) who has the authority to hire and fire other employees or whose suggestions and recommendations as to the hiring and firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight, and
"(4) who customarily and regularly exercises discretionary powers, and
"(5) who does no substantial amount of work of the same nature as that performed by non-exempt employees of the employer, and
"(6) who is compensated for his services at not less than $30.00 (exclusive of board, lodging, or other facilities) for a workweek."
In order to maintain an action under the act, it is necessary that it be made to appear that the employer, during the period for which overtime compensation is claimed, was engaged in commerce, or in the production of goods for commerce, of an interstate character. The trial court found that respondent was so engaged, and its finding in this respect is amply borne out by the evidence.
The pivotal question to be determined is whether appellant, during the time involved here, was employed by respondent as bookkeeper and clerk, or was employed in a bona fide executive capacity as defined and delimited by the regulations of the administrator of the wage and hour division provided for in the act, because, if appellant was employed in the former capacity and worked overtime, within the purview of the act, he would be entitled to recover; but, if he was employed in the latter capacity, he would not be entitled to recover for overtime.
In determining the status of a person in connection with his relationship to another, the work done by him must be the guide rather than what he may have been called or designated, or what title he may have had or assumed. Both parties, in their briefs, concede this principle, and I shall use it in a determination of the status of appellant. *Page 317
The nature and character of the services performed and the acts and things done by appellant while he was in the employ of respondent are, in the main, not in serious dispute when we eliminate opinions given and conclusions drawn by some of the witnesses in response to questions. Under such circumstances, this court, as a trier of fact de novo, will not give the same weight to the findings of the trial court as it would if such findings were made upon conflicting statements of witnesses and where their veracity and the weight to be given their testimony were the determinative factors.
The respondent maintained what may be called its main office at Tacoma, with a branch office at Melbourne, in Grays Harbor county, a few miles from Montesano. Appellant had been in its employ ever since it conducted its business operations there. F.W. Byles was employed in the capacity of what was termed the general manager of this part of respondent's business, and appellant was designated by respondent as office manager. Mr. Byles was not in good health, and he was absent from the office a substantial part of the time. Orders and instructions were given to appellant and to a Mr. Johnson, who assisted him, by Byles. Many orders and instructions were given by telephone and by letters from the Tacoma office.
The appellant did bookkeeping, other than the payroll and cost accounting, and general clerical work, acted as stenographer for Mr. Byles, received telephone calls for shipments to go out on the morning train, checked over the time sheets after they had been made out by others to determine their accuracy, compiled data for income tax and other reports, including log raft scaling and refund on fuel oil, wrote letters, received and sorted the mail for the office and the logging camp and delivered it to the manager's desk, and purchased the office supplies.
On appellant's recommendation, Johnson was hired, and, after his dismissal by the manager, he was reinstated. I infer that appellant either hired the other clerks or they were placed upon his recommendation. The method of employing *Page 318 labor at the logging camp was to interview the men sent to the office by an employment agency, and, if found satisfactory, to send them to the camp. No particular person in the office had this exclusive duty. Whoever the laborer contacted at the employment window attended to his application. It does not seem that appellant ever discharged any of the loggers, nor is there any evidence as to how many of the office employees severed their connections with the respondent. The only direct evidence of anyone being dismissed was in regard to Johnson, discharged by Byles, the appellant having had nothing to do with the matter. Questions propounded in substantially the language of the regulations as to hiring and firing were answered by witnesses in the affirmative, but were their conclusions or opinions rather than factual testimony.
My examination of the record leads me to conclude that, while some of the duties required by respondent and performed by appellant fall within one or more of the subdivisions of the definition of "employee employed in a bona fide executive . . . capacity," the greater number by far do not. Owing to frequent absences on account of illness, many of the general manager's duties necessarily had to be performed by appellant. But I do not think it can be said that his primary duties and those which he had been employed to perform went beyond those usually performed by a chief or a head clerk in any establishment with an office force. His duties as bookkeeper, compiler of reports, and of a clerical and office-employee character far outweighed those having any executive aspect. He did oversee and direct the work of other employees in the office. Many of their duties, however, were along the same lines as those he performed, and, necessarily, where there are several working together in an office, there must be someone who has the final word as to how the work shall be done in order to secure the greatest efficiency.
The situation of appellant fairly brought him within the purview of subd. (3) of § 541.1 of the definition of one in an executive capacity. As to whether he customarily and *Page 319 regularly exercised discretionary powers other than those necessarily incidental to the bookkeeping and the clerical duties that he performed, there is much doubt. His testimony that he did not exercise discretion was in the nature of an opinion or a conclusion, and the testimony of respondent's witnesses to the effect that he did so, was also of a like character, and neither can be given any weight.
The word "discretion" has somewhat of a varied meaning, but, as used here, it means the power of free decision, individual judgment, undirected choice. When we think of one vested with discretionary powers, we usually have in mind one who acts primarily and principally in a directive capacity, and not one who primarily does the actual work. This thought is intensified when we consider subd. (5) of § 541.1, which applies to one "who does no substantial amount of work of the same nature as that performed by nonexempt employees of the employer."
As stated before, the substantial amount of work done by appellant from day to day was of the same nature as that done by other employees in the office. The different subdivisions or elements making up the definition of one in an executive capacity are in the conjunctive, which necessarily implies that one must come within all of them to be termed an executive. We are dealing with an exemption from the statute providing for extra pay for overtime work, and it is my opinion that, before the exemption can apply, it must clearly appear that the employee falls within each and all of the different elements making up the exemption. There will, of course, be border line cases where it will be extremely difficult to say whether or not an employee is within the exempt class; hence, each case must rest largely upon its own factual situation.
Viewing the facts as disclosed by the record in this case, I reach the conclusion that appellant is not within the exemption, and was not employed in a bona fide executive capacity.
In submitting his proof on the amount of overtime, appellant claimed that his hours of employment during the *Page 320 time in question were from seven in the morning to five in the afternoon, with one hour out at noon, with the exception of Saturday, when work ceased at twelve o'clock noon, and that he also worked overtime evenings at either his home or the office.
There is some dispute in the testimony as to whether appellant was ever instructed or required to commence work as early as seven o'clock in the morning. But I think his testimony on that point is corroborated by the fact that, during the time in question, and for a long time prior thereto, he did, in fact, commence work at that time, and that this was necessitated by the fact that appellant was expected to, and did, receive orders from the Tacoma office to ship various articles on the morning train, which left at or before that time. It may be fairly inferred, I think, that respondent either affirmatively directed appellant to commence work at that time in the morning, or it at all times had full knowledge that he was doing so, and acquiesced. The respondent submitted proof that appellant performed outside work, such as attending to the United States postoffice and writing insurance, and that he also was frequently absent from his employment on business or pleasure of his own, such as playing golf.
I conclude that appellant is entitled to compensation for the overtime above the maximum hours prescribed by the act, but I do not think he is entitled to recover for any overtime that he may have worked beyond the nine-hour-day office hours.
The act contemplates that the overtime work be such as the employer suffers or permits to be done, and this presupposes that the employer has knowledge, either actual or constructive, that it is being done. The reason for this is that an employer should have the opportunity to decide whether he chooses to pay the regular employee the overtime compensation provided for in the act or secure another employee to perform the necessary extra work.
The appellant did not apprise respondent that he was doing overtime work at his home or at the office after regular office hours, and the evidence does not show that *Page 321 it had constructive knowledge of it. There is evidence to the effect that some of the clerical work required of appellant needed haste in its performance, but this fact does not indicate that respondent either knew or should have contemplated that he would have to work beyond regular office hours in order to do the work as promptly as expected.
I think the circumstances under which appellant performed the overtime work claimed beyond the nine-hour-office day not only shows that it was not such work as was suffered or permitted by respondent, but also that appellant is estopped from claiming compensation for such overtime by reason of his conduct in failing to bring home to respondent a knowledge that it was being performed. Mortenson v. Western Light Telephone Co.,42 F. Supp. 319; Schroepfer v. A.S. Abell Co., 48 F. Supp. 88.
The appellant should have deducted from his claim for overtime beyond the maximum hours prescribed by the act such time as he spent attending the post office and his own business affairs, writing insurance, and in playing golf. Upon the theories under which the case was tried and defended, the various items referred to were not segregated. In some instances, the evidence is quite indefinite, or there is none at all, so that it is not possible for this court to arrive at the correct number of hours of overtime for which appellant should be compensated, and the case should be remanded to the lower court for further proceedings.
The act speaks in terms of hours, so, where an employee is working on a monthly salary basis, such salary must be translated into its equivalent weekly wage by multiplying by twelve (the number of months) and dividing the result by fifty-two (the number of weeks). Section 7 (a) (3) of the act (29 U.S.C.A. § 207 (a) (3)) provides that no employer shall employ any employee for a work week longer than forty hours after the expiration of the second year from such date, "unless such employee receives compensation for his employment in excess of the hours above specified *Page 322 at a rate not less than one and one-half times the regular rate at which he is employed." (Italics mine.) The "regular rate" is the quotient of the amount of wage or salary a week agreed to be paid divided by the number of hours worked in any particular week. Dimmitt v. Great Southern Life Ins. Co., 124 F.2d 40;Overnight Motor Transp. Co. v. Missel, 316 U.S. 572,86 L.Ed. 1682, 62 S.Ct. 1216.
By § 16 of the act (29 U.S.C.A., § 216), any amount of compensation found due for overtime work must have added to it an equal amount as liquidated damages, and a plaintiff is entitled, in addition, to have the award of a reasonable attorney's fee and his costs of the action. The provisions of this section of the act are mandatory. Abroe v. Lindsay Bros. Co., 211 Minn. 136,300 N.W. 457; Williams v. General Mills, 39 F. Supp. 849;Schneider v. Sports Vogue, 35 N.Y.S. 2d 341, and cases cited.
The appellant claims he is entitled to interest on the weekly sums of overtime compensation, but that depends upon whether, for any week for which overtime is claimed, the number of hours of overtime has to be determined by evidence. If so, then interest cannot be allowed prior to judgment. But if it appears that the number of hours of overtime in any week can be determined by mere mathematical calculation, then interest is recoverable from the time the demand accrued. Wright v. Tacoma, 87 Wn. 334,151 P. 837.
The judgment should be reversed and the case remanded to the trial court, with instructions to determine the amount owing to appellant, and he should be awarded an attorney's fee in the sum of two hundred fifty dollars for the prosecution of his appeal.
JEFFERS and BLAKE, JJ., concur with GRADY, J. *Page 323