Kupperman v. M. & J. Becker, Inc.

CLARK, Circuit Judge

(dissenting).

My brethren are approaching this case as one resting completely upon fact findings made by the district court after a contested trial, and affirmance is based upon the recital of various small excerpts of evidence adduced in support of the decision. But this, as I see it, gives no picture whatsoever of the total situation and thus does not 'disentangle from the minutiae the overriding problem whether this small hat man-ufactory, already teeming with executives, can honestly support one more, or whether plaintiff’s claimed high position is not due more to the escape thus achieved from the minimum wage scale set by the Fair Labor Standards Act. There is a canard that during the depression years of the 30s young law clerks acquired partnership status more rapidly than before because of the need for their help in paying the office rent. Plaintiff’s functions in this shop seem to bear some analogies. This suggestion receives added force from the exploitation, here and below, of an aroma of unattractiveness about the plaintiff and his background and habits. True, this is somewhat inconsistent with the ultimate conclusion; the more unattractive he is painted by the defendant, the less likely would it seem that he would be one of its executives. Thus the fact that he was taken off relief to receive his job, if relevant at all, would tend to belittle, rather than enhance, his resulting status. But all this, it seems to me, has little bearing to show the plaintiff’s claim unworthy of credence, since it does not touch the fundamentals of the issue before us. Beyond that it can have no point; social welfare legislation in general, if not actually designed to protect the weak sisters of our economy, certainly has an important *771effect in doing just that, and courts are not to oppose their will to the trend.

Let me hasten to add that I am not much troubled by the labels “fact” and “law,” and believe án appellate court in cases of this type must reach behind such formulae to state and execute the justice which the issue demands. So, were it necessary, I should not for a moment draw back from that conviction of mistake which the Supreme Court holds requisite for a reversal of fact findings. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Gindorff v. Prince, 2 Cir., 189 F.2d 897. But for the record I must point out that the error I find seems to me more of law in a failure to enforce the Administrative Regulations according to their terms and the several previous decisions of this court than of incorrect resolution of factual disputes. While there were such disputes, I can think of none at all decisive on the points I deem important; giving every effect to the trial court’s resolution of these disputes in favor of the defendant, I yet do not see how this workman can be made into an executive under any realistic application of the governing law.

The Administrative Regulations, which the opinion herewith cites and quotes, establish six indicia of “executive capacity” as used in § 13(a)(1). We have said, time and again in this Circuit in the cases the opinion cites, that it is the employer’s duty to establish exemption within each of these terms and that unless he comes forward with definite and clear evidence proving all six he must fail. Defendant was not held to this standard of proof. We have from it little more than President Becker’s own meaningless and self-serving statements that Kupperman was a “foreman.” 1 Labels like this, however, are legally insufficient and the question remains one to be determined by applying specifically the six requirements of the Regulations as to the type of work performed and the time spent on various duties. With the law thus stated plaintiff appears far from an “executive.”

Plaintiff’s duties, like the whole operation of the shop, were rather haphazardly and arbitrarily assigned. After 1942, for instance, when he was working upstairs, there were at least three others directing and supervising .operations, while the entire staff (workers and directors) appears to have averaged about sixteen people. To me it seems fantastic to assume that plaintiff was called upstairs to direct an operation already top-heavy with executives— to make the ratio one to three instead of one to four. The evidence indicates that, in fact, there was no real differentiation between management and labor — as is to be expected from what is generally known of the operation of the garment industry. The shop was small with few people engaged; all knew the skills involved in turning out the goods; and all could, and surely did, fill in when needed on the machines. Plaintiff, at best, may have been a higher- or midway-up employee; he probably had some power, by tradition, in a shop largely staffed with women, to direct some operations. This alone is not enough to make him an “executive” within the Act unless the stern requirements of § 13 and the Regulations are diluted beyond recognition. We are certainly making extensive new law when we say a hybrid job like this, partly directive, partly not, is exempt.

Indeed, the whole agglomerate of facts we have before us requires the conclusion that he was not exempt within the terms of the Regulations. Subdiv. (e), for instance, requires that, for exemption, not more than one-fifth of an employee’s time be spent on non-exempt work. Now we have nothing entirely definite on just how many hours each day plaintiff spent on his various duties. (In fact one witness stated he spent all his time preparing material.) We do know, on the basis of Becker’s own testimony, that plaintiff did some cutting of the material — certainly non-executive work — and all the circumstantial evidence points to the conclusion that the time thus *772spent was significant. So it appears that when he was hired in 1939, he was by training and experience a cutter. At this time there were three people engaged in cutting the material for the entire shop, but shortly thereafter two left defendant’s employ. From 1941 on there was only one admitted cutter unless plaintiff materially assisted him, as to me seems clear. And finally, after 1945, when he joined the union, all admit that plaintiff was a cutter primarily and there is no evidence that the management suddenly altered his duties on that date. As a matter of law, defendant has failed to satisfy the burden of proof it bears on an essential condition of its exemption defense. Judgment should therefore go for the plaintiff.

If I am wrong as to all this, I should think the remand ordered by my brethren unnecessary and therefore quite undesirable. Pat and perfect findings of fact are not imperative for a valid judgment and the mere fact that the Regulations establish certain indicia of necessary proof for recovery should not require formalistic symbols addressed to each one. Where the trial judge’s intent is as clear as it was here, we should accept the result as including the formal finding which, on his view, cannot be questioned. Courts, appellate and trial, should not move in entirely disconnected concentric circles, touching only to cause damage to the rhythm of procedure; they should enmesh together to form a workable whole. This result goes beyond the desirable elements of F.R. 52(a) to find requirements therein of no affirmative utility, but of artificial procedural strictness, barring easy operability of the system.

. Becker himself left no doubt about the meaninglessness of this definition of Kupperman’s job. He stated in his deposition, “Well, -we hired Mm for handyman and for foreman. That is the same thing to me.”