Steinert, J. —
Plaintiff brought suit to recover a specified amount alleged to be due him for overtime work performed under certain regulations of the fair labor standards act of 1938, and for an equal amount claimed by him as liquidated damages accruing under that same act. Upon a trial before the court without a jury, findings were made and a judgment dismissing the action was entered. Plaintiff appealed.
The theory upon which the appellant, W. L. Cotton, predicated his complaint was that at the times here involved the respondent, Weyerhaeuser Timber Company, was engaged in the manufacture of logs and timber products for “commerce,” as that term is defined in the fair labor standards act of 1938; that, during the period covering the years 1938 to 1940, inclusive, appellant was employed by the respondent as a bookkeeper and clerk; that, from October 24, 1938, to and including August 31, 1940, he had worked, during certain weeks, a total of 558% hours in excess of the aggregate number of hours permitted by the Federal act as the maximum period of weekly employment performable without payment of .additional compensation; that for such excess hours of work he was entitled to be paid at the rate of one and one-half times his regular rate
of pay; that he was further entitled to recover, under the provisions of the Federal statute, liquidated damages in an amount equal to the total amount due him for overtime work, and, in addition, a reasonable attorney’s fee and costs of the action.
Respondent, in its answer, denied generally the material allegations of the complaint and further pleaded as affirmative defenses: (1) that during the entire period here involved its activities consisted of the production of logs for sale within the state of Washington exclusively; (2) that the appellant is estopped from claiming any additional or overtime compensation, for the reason that, if he did work overtime, he nevertheless failed to report that fact to the respondent, as was his duty to do, but, instead, performed such work without the knowledge, sufferance, or permission of the respondent; (3) that, from October 24, 1938, to August 1, 1940, appellant was employed by the respondent in a bona fide executive capacity (as that term was and is defined by regulations of the administrator of the wage and hour division) and was therefore expressly exempted from the application of the minimum wage and maximum hour provisions of the fair labor standards act of 1938; further, that on and after August 1, 1940, appellant was employed in the capacity of bookkeeper, whose duty was to keep an accurate record of the hours worked by him and to report the results to the respondent, but that appellant failed to comply with that duty; and (4) that during the entire period of appellant’s alleged services he was employed by respondent at a fixed and agreed monthly salary, which was paid to him periodically as it accrued, in full of the amounts then owing to him.
The affirmative matter of the answer, in so far as it affected appellant’s alleged right of recovery, was denied by him in his reply.
Upon the evidence introduced by the respective parties, the trial court made and entered findings of fact to the effect: (1) that at all times here involved respondent was engaged in conducting logging operations in Grays Harbor county, Washington, and that appellant during his em
ployment by respondent was engaged in the production of goods for
interstate
commerce or in an occupation necessary to that character of production; (2) that appellant was employed in a bona fide executive capacity (as defined and delimited by regulations of the administrator of the wage and hour division) and was expressly exempted from the application of the minimum wage and maximum hour provisions of the fair labor standards act of 1938; (3) that appellant was employed at a monthly salary which exceeded the minimum wages prescribed by the Federal act for the years involved and that such salary was paid to him in full, currently as it accrued, prior to the commencement of this action; and (4) that appellant had failed to prove by a preponderance of the evidence that he was employed by the respondent for any work week in excess of the time prescribed by the Federal act.
The fair labor standards act of 1938 (29 U. S. C. A., §§ 201-219) was enacted June 25,1938, and, as to §§ 206 and 207 thereof, became effective October 24, 1938. The express purpose of the act, as stated in § 202, is, through the exercise by Congress of its regulatory power over commerce
among the several states,
to correct and as rapidly as practicable to eliminate certain detrimental labor conditions declared to exist in industries engaged in commerce or in the production of goods for commerce.
The material portions of the various sections of the act applicable to this case are as follows:
Ҥ 203. [29 U. S. C. A.] Definitions
“As used in sections 201-219 of this title—
“ (b) ‘Commerce’ means trade, commerce, transportation,, transmission, or communication
among the several States or from any State to any place outside thereof.
“(d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . .
“ (e) ‘Employee’ includes any individual employed by an employer.
“.(g) ‘Employ’ includes to suffer or permit to work.
“(i) ‘Goods’ means goods (including ships and marine equipment), wares, products, commodities, merchandise, or
articles or subjects of commerce of any character, or any part or ingredient thereof, . . .
“(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.” (Italics ours.)
Ҥ 206. Minimum wages; . . .
“ (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates—
“(1) during the first year from the effective date of this section [October 24, 1938], not less than 25 cents an hour,
“(2) during the next six years from such date, not less than 30 cents an hour, . . . ”
Ҥ 207. Maximum hours
“(a) 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 [October 24, 1938],
“ (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.”
Ҥ 213. Exemptions
“(a) The provisions of sections 206 and 207 of this title shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator); . . . ”
Ҥ 216. Penalties; civil and criminal liability
“(b) Any employer who violates the provisions of section 206 or section 207 of this title shall be hable to the em
ployee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees . . . 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.”
On October 24, 1938, the administrator issued certain regulations, among which was section numbered 541.1 defining and delimiting the term “any employee employed in a bona fide executive, administrative, . . . capacity” appearing in § 213 of the Federal act. That section of the regulations reads as follows:
“Section 541.1 — Executive and Administrative
“The term ‘employee employed in a bona fide executive (and) administrative . . . capacity’ in Section 13 (a) (1) [§ 213] of the Act shall mean any employee
“(1) whose primary duty is the management of the establishment, or a customarily recognized department thereof, in which he is employed, and
“ (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.”
On October 24, 1940, the administrator issued regulations similar to those referred to above, except that subdivision (5) of the former regulations was amended to provide that the hours of work of the same nature as that performed by nonexempt employees should not exceed
twenty per cent
of the. number of hours worked by the nonexempt employees under the executive employee’s direction.
The first question presented to, and decided by, the trial court was whether or not the respondent was engaged in commerce, or in the production of goods for commerce, of an
interstate
character. The court found specifically that respondent was engaged in business of that type. We are not entirely convinced that the evidence warranted that finding. In our opinion, there was ample evidence to support'a finding that respondent’s activities at its Clemons branch which, as will hereinafter more fully appear, was the particular logging plant involved in this action, were wholly of an
intrastate
nature.
However, in view of the grounds upon which this opinion is based, we shall assume, for the purposes of this case, that this particular finding of the trial court is correct, and that at the times and with respect to the plant here involved the respondent employer was, by reason of the interstate character of its business, subject to the provisions of the fair labor standards act of 1938.
The next question considered by the trial court was whether, during the times with which we are here concerned, appellant was employed by the respondent simply as a “bookkeeper and clerk,” thus bringing him within the purview and protection of §§ 206, 207 of the Federal act, or conversely, whether he was employed in a bona fide executive capacity (as defined and delimited by regulations of the administrator), thus subjecting him to the exemptions prescribed by § 213 of the act and excluding him from the application and benefits of §§ 206, 207.
If the appellant was employed in the former capacity, worked overtime, and did not receive the compensation provided by the Federal statute, as he contends, then he would be entitled to recover, unless by his acts or conduct he is now estopped to assert his alleged claim. If, on the other hand, he was employed in the latter capacity, as the respondent contends, then, under the facts in this case, he would in no event be entitled to recover for the alleged overtime work. Upon that issue, the trial court found that
appellant was employed in a bona fide executive capacity, as defined and delimited by the administrator’s regulations, and therefore was not entitled to recover compensation for the alleged overtime.
The crux of that particular issue was whether or not the facts concerning the character of appellant’s employment brought him within the applicability of § 213, excluding him from the protection of the wage and hour provisions of the Federal act. Whether § 213 is applicable in a given instance must be determined from all the facts shown by the record in the particular case.
Wood v. Central Sand & Gravel Co.
(D. C. Tenn.), 33 F. Supp. 40, 46;
Collins v. Kidd
(D. C. Texas), 38 F. Supp. 634;
White v. Jacobs Pharmacy Co.
(D. C. Ga.), 47 F. Supp. 298.
The issue was thus, primarily, a factual one, dependent upon the evidence produced before the court and presenting, in turn, the question of burden of proof. Necessarily, the credibility of the witnesses was also a factor to be considered.
Since the respondent employer asserted and now relies upon § 213 of the act, which exempts certain employees from the benefits of §§ 206, 207, the burden rested upon it to show that the employee, the appellant herein, was subject to the exemption.
Helena Glendale Ferry Co. v. Walling
(C. C. A. 8th), 132 F. (2d) 616;
Snyder v. John J. Casale, Inc.
(D. C. N. Y.), 49 F. Supp. 926;
Bush v. Wilson & Co.,
157 Kan. 80, 138 P. (2d) 457;
Schneider v. Sports Vogue,
35 N. Y. S. (2d) 341.
It is a precept, frequently declared and generally recognized, that the fair labor standards act is a remedial one and must therefore be liberally construed to effect its purposes.
Fleming v. Hawkeye Pearl Button Co.
(C. C. A. 8th), 113 F. (2d) 52;
Carleton Screw Products Co. v. Fleming
(C. C. A. 8th), 126 F. (2d) 537;
Musteen v. Johnson
(C. C. A. 8th), 133 F. (2d) 106;
Wood v. Central Sand & Gravel Co., supra; Fleming v. American Stores Co.
(D. C. Pa.), 42 F. Supp. 511, 516.
The evidence in the case is to be weighed and considered
in the light of these accepted rules. Certain facts are not disputed, and these we shall state first, as follows:
The respondent is a Washington corporation and, since 1937, has conducted, a logging operation known as the “Clemons” branch, in Grays Harbor county. Respondent’s main office is in Tacoma, and its Clemons branch office is in Melbourne, a few miles distant from Montesano. Mr. F. W. Byles is, and during the period here involved was, the general manager of the Clemons branch. During that same period, however, Mr. Byles was in poor health and was away from the office a great part of the time.
Appellant had been employed at the Clemons branch since about 1918. When the business was taken over by the respondent in 1937, appellant was made “office manager.” From October 24, 1938 (the effective date of the wage and hour provisions of fair labor standards act of 1938), to February 28, 1939, inclusive, appellant was paid a monthly salary of $295, of which $275 was paid in cash and $20 in. the form of rental for a dwelling house owned by the respondent and occupied by the appellant. From March 1, 1939, to and including May 31, 1939, he was paid a monthly salary of $160, of which $140 was paid in cash, and $20 in the usual form of rental. On June 1, 1939, his salary was restored to the amount first above stated and so remained for the remainder of the time involved in this action. These amounts of monthly salary were all greatly in excess of the minimum wage amqunts specified in § 206 of the fair labor standards act.
At this point, the conflict in the evidence begins. Appellant’s evidence, consisting for the most part of his own testimony, was, in substance, as follows:
He was employed by, and worked for, the respondent throughout the period here involved simply as a bookkeeper and clerk, although he was given the nominal title of “office manager.” He kept regular hours, according to the time schedule fixed by the respondent. From Monday through Friday of each week he worked from seven o’clock in the morning until twelve noon, and from one o’clock to five o’clock in the afternoon, aggregating nine hours a day.
On Saturdays he worked from seven o’clock in the morning until twelve noon, a period of five hours. This would amount to a total of fifty hours of work a week, or an excess of six hours a week during the year following October 24, 1938, and an excess of eight hours a week during the period following October 24, 1939.
In addition to these regular hours fixed by the respondent, appellant was requested and required by his employer, in 1939 and 1940, to do extra work of a special nature, in connection with rescaling and rechecking certain rafts of logs and compiling certain information necessary to be had by the respondent in making up its tax reports and claims for fuel oil refunds. In order to perform these extra services, it was necessary for appellant to work at night, both at the office and at his home.
Appellant’s work, as a whole, consisted of bookkeeping, general clerical work, stenographic services, answering telephone calls, checking time sheets, compiling data for income tax and other reports, writing letters, sorting and distributing mail, and purchasing office supplies. He had no executive or administrative authority with respect to respondent’s business, did not hire or discharge any of its employees, and exercised no discretionary powers. He merely executed the orders and discharged the duties imposed upon him by his superiors, whether the directions given by them emanated from the branch office or from the main office.
Upon the evidence outlined to this point appellant claimed to be entitled to the sum of $1,456.68 for overtime work; also to an equal amount as liquidated damages under the Federal statute; and to an attorney’s fee of $750. Appellant produced several witnesses whose testimony was offered in circumstantial corroboration of his claim, but that testimony, in our opinion, was of little weight or value.
Respondent’s evidence, consisting of the testimony of five witnesses, one at least of whom was entirely disinterested, gave a different version of the nature of appellant’s employment. That testimony, taken as a whole, was, in
substance or as the court was entitled to accept it, as follows:
During the period here involved appellant was employed by the respondent to perform the duties of office manager and bore that official title throughout that period. He was paid, and regularly received, the monthly salary set forth above. As such manager he had full charge and direction of the office, or at least of its bookkeeping department, and of the work done therein. He had authority to hire and discharge the office help. He also hired many of the employees who worked in the woods. His suggestions or recommendations with reference to changes of status of other employees was given particular weight. He purchased the office supplies and regularly and customarily made trips to the bank and to the courthouse for the transaction of the company’s business. He kept the records of the company and signed the pay checks, including his own. In all matters pertaining to his position he exercised his own judgment and discretion. Although he did some work of the same nature as that done by nonexempt employees, his hours of work of that character did not exceed twenty per cent of the number of hours worked by nonexempt employees under his direction.
Appellant had no fixed hours of work, but came and went as he pleased. He usually reported at the office at about seven-thirty o’clock in the morning, took an hour or two at noon for lunch, and left early in the afternoon. Being an enthusiastic golfer, he frequently spent his afternoons, or a part of them, during the week, on the golf course. Occasionally, he made trips to Centraba to look after the business of a drug store which he owned. The time spent by him in or out of the office was fixed by himself.
Appellant was also the postmaster at Melbourne, receiving a salary of four hundred dollars a year from the United States government. In addition, he represented an insurance company and wrote policies for the officers and employees of the respondent.
We have not attempted to set forth in detail the evidence with respect to appellant’s various activities, nor is it neces
sary to do so. Suffice it to say that we are convinced from the record that appellant occupied the status of an “employee employed in an executive capacity,” as that term is defined in the regulations of the administrator as quoted above. We therefore hold that, upon the evidence, considered in the light of the rules applicable thereto, the finding of the trial court on that issue is correct. Support for this conclusion is found in
Owin v. Liquid Carbonic Corp.
(D. C. Tex.), 42 F. Supp. 774, and
Rosenthal v. Atkinson
(D. C. Tex.), 43 F. Supp. 96.
The third question presented to the trial court was whether or not appellant had proved that he did work overtime. Despite the fact that our decision upon the preceding question would be sufficient to dispose of this case, we are constrained to decide this third question also, because of the strenuous argument made thereon by respective counsel.
On this issue, the burden of proof was upon the appellant, for it was his duty to establish by a preponderance of the evidence not only the fact of overtime work, but also the quantity of overtime services performed by him each week.
Lowrimoore v. Union Bag & Paper Corp.
(D. C. Ga.), 30 F. Supp. 647;
Wilkinson v. Noland Co.
(D. C. Va.), 40 F. Supp. 1009;
Mortenson v. Western Light & Telephone Co.
(D. C. Iowa), 42 F. Supp. 319;
Corbett v. Schlumberger Well Surveying Corp.
(D. C. Tex.), 43 F. Supp. 605;
Niehaus v. Joseph Greenspon’s Son Pipe Corp.,
164 S. W. (2d) (Mo. App.) 180;
Ralston v. Karp Metal Products Co.,
179 Misc. 282, 38 N. Y. S. (2d) 764.
Appellant bases his claim for recovery upon the hypothesis that he worked regularly from 7 a. m. to 5 p. m., except for one hour for lunch, during five days of each week, and from 7 a. m. to noon on Saturdays, and, in addition, worked certain nights, both at the office and at home. From the testimony to which reference has already been' made, it is apparent that there was a sharp conflict in the evidence as to the actual amount of time spent by the appellant, during the daytime, at respondent’s office or in connection with its business. It is also clear from the evi
dence that, except for a few weeks, appellant kept no record whatever of the time worked by him during the period here involved, and that no claim for overtime was ever made by him until after he had severed his connection with the respondent. His claim for the overtime expended at night is not only subject to the same criticism, but also lacked the proof necessary to show that he was ordered or permitted to perform any work outside the regular work hours, or that respondent had any knowledge of the fact that appellant was working at night, either at the office or at his home.
“If one has not hired another expressly, nor suffered or permitted him to work under circumstances where an obligation to pay him will be implied, they are not employer and employee under the Act.”
Bowman v. Pace Co.,
119 F. (2d) 858.
To the same effect are
Mortenson v. Western Light & Telephone Co., supra; Stein v. Gordon Bros. Mfg. Co.
(D. C. Mo.), 43 F. Supp. 249;
Dollar v. Caddo River Lbr. Co.
(D. C. Ark.), 43 F. Supp. 822.
The trial court found against the appellant on the question of claimed overtime. Where the testimony is conflicting, the findings of that court will not be disturbed unless we are satisfied that the evidence preponderates against them.
Gensman v. West Coast Power Co.,
3 Wn. (2d) 404, 101 P. (2d) 316. Careful consideration of the record convinces us that the evidence does not preponderate against the court’s finding upon this issue, but rather that it preponderates in favor of such finding.
There is yet another ground upon which our opinion herein may be rested. . The pleadings and the briefs present the question of estoppel against the appellant to assert his claim. The record discloses that at the end of each month statements were prepared showing, with respect to each employee, including the appellant, the time worked, the rate of pay, and the balance owing to such employee. These statements were submitted regularly to the appellant, and on the basis thereof he himself signed and issued the pay roll checks. At no time while in the respondent’s employ
did appellant challenge the accuracy of these statements or the correctness of the salary checks, in so far as he was concerned. He thus, in effect, represented to the respondent that the statements and checks were accurate and satisfactory, and that he had not worked overtime. By his belated claim he endeavors not only to recover wages for overtime work, at time and a half pay, but also to subject the respondent to the rigorous penalty of the Federal act, resulting in a double recovery besides a large attorney’s fee and costs. Had appellant made a claim promptly, respondent would not only have been enabled to rectify the alleged practice with reference to overtime employment, but could also have saved itself from incurring the heavy penalty which appellant now seeks to recover for himself. In our opinion, appellant should be estopped to assert the alleged claim.
Mortenson v. Western Light & Telephone Co., supra.
For each and all of the reasons given above, the judgment is affirmed.
Simpson, C. J., Beals, Millard, Robinson, and Mallery, JJ., concur.