Opinion
Cause No. 3:14-cv-41
03-28-2016
BILLY BROWN, Plaintiff, v. ALERIS SPECIFICATION ALLOYS, INC. and WABASH ALLOYS, LLC, Defendant.
OPINION
This is a suit for unpaid overtime wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et. seq. Billy Brown worked at Aleris Specification Alloys, Inc. for forty years before resigning in 2013. For the last 31 years of his employment, Brown was a production supervisor at the Wabash, Indiana factory. In that capacity, Brown supervised employees working on the plant's ingot line, and he was paid almost twice as much as the line workers that he supervised. In the beginning, the company paid Brown and other supervisors time and a half or double-time for overtime hours, but in the mid-2000s Aleris changed the policy and started paying supervisors standard wages for overtime. Brown claims this new policy violated the FLSA and that Aleris was obligated to pay him at least time and half for overtime. Whether Brown was an executive employee and therefore exempt from the FLSA's overtime pay requirements is the question posed by this case. Both parties have moved for summary judgment. Because I am convinced that Brown was an exempt executive employee, Aleris's motion will be granted and Brown's denied.
Background
Brown's Duties
Brown was hired as a manual laborer by Aleris's predecessor in 1973. (DE 27-1 at 12:13-15.) In 1982, he was promoted to production supervisor, a non-union position. (Id. at 17:14-16, 21:9-12.) As supervisor, he oversaw the work of six or more hourly employees on the ingot line and reported to the production manager, who in turn reported to the plant manager. (Id. at 46:15-18; DE 27-2 at 10:5-14; see also DE 32-3 at 59 (job description indicating Brown could supervise up to 15 production employees).) Among other things, Brown made sure that his crew was "doing what they were supposed to be doing"and ensured that ingot production during his shift conformed with an order sheet he received daily from his own supervisors. (DE 27-1 at 31:24-33:10.) He was also responsible for ensuring that workers on the ingot line were trained and followed the company's safety policies. (Id. at 25:2-26:1, 38:25-39:2, 42:10-12, 116:14-22, 124:3-24; see also DE 27-4 at 14:6-19; DE 32-3 at 59.) Senior managers at the company considered Brown's and other production supervisors' role in safety to be "the most critical in the organization" because they met with hourly workers prior to the shift, were "primary rule enforcers," and were "with them most of the day." (DE 27-4 at 27:20-28:10; see also DE 27-2 at 17:3-12.)
Citations to deposition testimony include the docket entry number, followed by the page and line number of the deposition transcript. --------
Because the workers Brown supervised were unionized, their schedule, pay, and eligibility for promotion were largely dictated by a collective bargaining agreement ("CBA"). (See generally DE 32-2 at 5-31.) Nevertheless, Brown had a role in personnel decisions. He was responsible for advising upper management about staffing needs, and Aleris decided when it needed to post an open position based on supervisor requests for additional manpower. (DE 27-4 at 11:24-12:21; see also DE 32-3 at 53 (1978 job description for production supervisor listing responsibilities, including "[m]ak[ing] manpower recommendations to the Plant Manager").) In addition, all new hourly workers were hired on a probationary basis, and the company relied on the recommendations production supervisors like Brown in deciding whether to retain those employees at the end of their probation. (DE 32-2 at 3; see also DE 27-1 at 110:16-22 (Brown testifying that upper management asked him how employees were doing); DE 32-3 at 59 (Brown's 2012 job description listing "appraising performance" as a responsibility).) Brown also had authority to administer progressive discipline, including giving verbal and written warnings and temporarily suspending workers. (DE 27-1 at 49:15-50:2; DE 27-4 at 15:11-17:16; DE 27-2 at 11:7-25.)
Brown handled other staff issues as well. He fielded and resolved employee complaints and grievances. (DE 27-1 at 49:15-22.) He approved or denied time-off requests, and it was his responsibility to find people to fill in when someone called off or to work overtime when it was necessary. (Id. at 37:18-21, 38:8-10, 38:21-24, 112:24-114:12; see also DE 27-4 at 17:24-20:1; DE 27-2 at 14:2-15:5.) When Brown was shorthanded, it was up to him to make it work—which usually meant that he ended up doing the manual labor himself, even though the company didn't formally require that of him. (DE 27-1 at 117:8-118:12 (estimating that half of his daily work was manual labor); see also DE 27-4 at 30:11-32:21; DE 27-2 at 19:22-21:12.)
Finally, Brown was charged with quality control and record-keeping for the ingot line. (DE 27-1 at 44:6-20, 45:5-46:7.) He was "ultimately responsible" for how much ingot was produced and made decisions throughout his shift about how much raw material to put into the furnaces, how frequently to test the composition of the alloy, and when to alert the higher ups that the line was short on a particular metal or was lagging behind. (DE 27-1 at 24:18-23, 27:19-28:15, 31:24-33:10, 34:15-36:12; see also DE 27-4 at 20:2-22:14; DE 27-2 at 15:14-18.) He kept records throughout the day about the operation of the line, including furnace levels, the amount of scrap and amount and/or rate of flux, the amount of ingot produced, and whether furnaces were down. (DE 27-1 at 57:1-61:5.) At the end of his shift, he spent another hour or two inputting this information into the computer. (Id. at 77:20-78:17, 89:14-90:9; see also DE 27-2 at 26:4-8.)
Brown's Compensation
As a production supervisor, Brown received an annual base salary and was eligible for straight time pay for any overtime he worked in a two-week period. (DE 32-1 at ¶ 8.) In 2011, his base salary was approximately $71,000, and his total compensation was approximately $99,000. (Id. ¶ 10.) In 2012, his base salary was $73,500, and his total compensation was approximately $98,000. (Id. ¶ 11.) In 2013, his base salary was approximately $75,000, and he had taken home approximately $55,500 when he resigned mid-year. (Id.¶ 12.)
Discussion
Summary judgment is appropriate if the record, including "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)). On cross summary judgment motions, this standard applies to both motions, and all inferences must be construed in favor of the nonmovant. Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998). My job is not to weigh the evidence, but to determine whether there is any genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
Unpaid Vacation Time
Before I get to the meat of these motions, there is a state law issue that needs to be handled. Brown claims that he is due one week of unpaid vacation time under Indiana law. Specifically, he alleges in his summary judgment briefing that "Aleris told Brown it would pay him a week's worth of vacation time. . . . [and] reneged on its promise[.]" (DE 28 at 23.) The problem is that Brown did not allege this claim in the complaint, and so he failed to comply with the notice requirements of Rule 8 of the Federal Rules of Civil Procedure. (See generally DE 1.) He cannot now, a year after discovery was completed, "move for summary judgment on a claim that is not part of the case and for which [he] failed to give . . . notice[.]" Wiesmueller v. Kosobucki, 667 F. Supp. 2d 1001, 1003 (W.D. Wis. 2009) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)). The only way to assert this new claim would have been to amend the complaint, and the time for that came and went nearly two years ago. (DE 14 at 2; see also Fed. R. Civ. P. 15(a).) It also makes no difference that Brown referred to unpaid vacation time in his initial disclosures, which were also due in April 2014. (DE 14 at 1; see also Conner v. Ill. Dept. of Natural Res., 413 F.3d 675, 679 (7th Cir. 2005) (rejecting argument that plaintiff's interrogatory notified the defendant of a claim that was not alleged in the complaint ).) Accordingly, Aleris's motion for summary judgment with respect to Brown's claim for vacation pay is granted.
Overtime Pay
The FLSA requires employers to pay employees at least one and a half times their standard rate for hours they work over 40 in a week, unless the employee is "employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. §§ 207(a)(1), 213(a)(1). These exemptions are narrowly construed against the employer and must be confined to positions that are "plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); see also Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); Roe-Midgett v. CC Servs., Inc., 512 F.3d 865, 869 (7th Cir. 2008).
Aleris argues Brown was exempt from the FLSA overtime pay requirements because he was an executive employee. (DE 7 at 3; DE 31 at 10-22.) Under the FLSA, an employee who meets the following criteria is an exempt executive:
(1) Compensated on a salary basis at a rate of not less than $455 per week . . . ; (2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (3) Who customarily and regularly directs the work of two or more other employees; and (4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status or other employees are given particular weight.29 C.F.R. § 541.100(a). Brown concedes that his position satisfied the third requirement, that he customarily and regularly directed the work of at least two employees (see DE 36 at 7; see also DE 27-1 at 46:16-18), so I only need to determine whether there's a factual dispute that his position satisfied the other three requirements.
1. Was Brown Compensated on a Salary Basis?
To be a bona fide executive employee, Brown must have been paid at least $455 per week on a "salary basis." See 29 C.F.R. § 541.100(a). There is no dispute that his weekly pay exceeded $455, but Brown argues that he was not paid on a salary basis. (DE 28 at 14-16; DE 36 at 2.) An employee is paid on a salary basis when he receives "on a weekly, or less frequent, basis a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.602 (emphasis added); but see 29 C.F.R. § 541.602(b) (delineating reductions in salary that do not render an employee nonexempt). An employee's compensation is subject to reduction, thereby disqualifying the employee from exemption, if the employer has an "actual practice of making such deductions or has an employment policy that creates a 'significant likelihood' of such deductions." Auer v. Robbins, 519 U.S. 452, 461 (1997); see also Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 371 (7th Cir. 2005) ("The phrase 'subject to' does not require proof that an employer has reduced an employee's wages; an employment policy that creates a significant likelihood of a deduction will suffice.").
Brown has presented no evidence that Aleris actually reduced his pay when he worked less than full time hours. Instead, he argues that Aleris required him to use vacation time whenever he worked less than 40 hours. (DE 35 at 8.) This alone would not mean that Brown's salary was subject to reduction. To begin with, the Department of Labor's regulations allow employers to reduce salary for full-day absences without losing the exemption (see 29 C.F.R. § 541.602(b)), and there's no evidence that Aleris deducted vacation time for part-day absences. Even if it did, deducting vacation time is not the same as reducing actual compensation. See Kennedy, 410 F.3d at 371, 376 (affirming finding that employee was exempt where employer paid same amount of money but deducted personal leave time when an employee chose to take an "unpaid" day off); see also Baudin v. Courtesy Litho Arts, Inc., 24 F. Supp. 2d 887, 891 (N.D. Ill. 1998) ("Numerous courts have found that employers may make deductions from something other than employees' base pay without destroying those employees' exempt status. . . [including] deductions from an employee's vacation, holiday and sick pay for partial day absences.") (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 259 (S.D.N.Y. 1997)).
Brown also argues that he was not paid on a salary basis because he was forced to work so much overtime that "his purported salary had no relation to his actual income." (DE 35 at 8-9.) He points to 29 C.F.R. § 541.604(b), which states that an employee may be exempt even when his earnings are computed on an hourly basis, so long as he is guaranteed the minimum weekly amount regardless of hours actually worked "and a reasonable relationship exists between the guaranteed amount and the amount actually earned." He relies upon Kennedy, in which the Seventh Circuit considered whether certain employees who were paid more than their guaranteed weekly amount were not exempt. 410 F.3d at 370. There, the court found that the difference between the employees' actual compensation and their salaries was too small to be significant but cautioned that the plaintiffs would not have been exempt if their salaried had been "so far below their actual compensation (calculated on an hourly basis) that the 'salary' was 'nothing more than an illusion[.]'" Id. at 370-71 (citing Mich. Ass'n of Gov't. Emps. v. Mich. Dep't. of Corrs., 992 F.2d 82, 84 n. 3 (6th Cir. 1993)).
This argument has some allure to it because Brown earned a significant portion of his pay from working overtime. In 2011, he earned 28.1%, or $27,800, of his total annual compensation from overtime. (See DE 32-1 at ¶ 10.) In 2012, he earned 25.5%, or $24,950, of his total compensation from overtime. (Id. ¶ 11.) In 2013, Brown's guaranteed salary was $75,060, and he earned $55,458 before resigning in July, which suggests that overtime pay would have comprised a similar proportion of his total annual compensation had he finished out the year. (Id. ¶ 12.) But Brown never earned more than 30% of his actual pay from overtime, which was an acceptable increase in an example provided in the regulation itself. See 29 C.F.R. § 541.604(b) (stating that an employee who ordinarily worked four or five shifts and was guaranteed at least $500 per week could "be paid $150 per shift [or as much as $750 per week] without violating the salary basis requirement"). Brown's total compensation bore a reasonable relationship to his salary and, in an event, was not so disparate that his "salary was nothing more than an illusion." See Kennedy, 410 F.3d at 371.
For these reasons, Aleris has established that Brown was paid on a salary basis, satisfying the first requirement of the executive exemption under the FLSA.
2. What was Brown's "Primary Duty"?
The second requirement for the FLSA's executive exemption is that the employee's "primary duty" was "management of . . . a customarily recognized department or subdivision thereof." 29 C.F.R. § 541.100(a)(2). An employee's "primary duty" is his "principal, main, major or most important duty[,]" and the regulations provide a non-exclusive list of activities that constitute "management":
interviewing, selecting, and training of employees; setting and
adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.Id. §§ 541.700, 541.102. The regulations are written in a general way to apply to many different scenarios, so an employee does not need to perform all of these duties to be a manager. But at the risk of stating the obvious, the more time an employee spends on managerial tasks, the more likely it is that he will be deemed a manager. See Harper v. Wilson, 302 F. Supp. 2d 874, 881 (N.D. Ill. 2004) (citing Dalheim v. KDFW-TV, 918 F.2d 1220, 1231-32 (5th Cir. 1990)).
To begin with, Brown meets the 'primary duty' requirement because he performed most of the duties the regulation describes as "management." Brown himself testified that it was his job to make sure that the guys on the ingot line were "doing what they were supposed to be doing[,]," that he had "ultimate responsibility" for the number and weight of ingots produced, that he decided how much raw material went into furnaces and how frequently to sample alloy, that he alerting the higher ups if he didn't have enough of a particular metal or if the line was behind, and that he kept records related to ingot line production. (DE 27-1 at 24:18-23, 27:19-28:15, 45:5-46:7, 57:1-61:5.)
As it is with most union shops, the CBA largely dictated the hours and pay of Aleris line employees. But Brown had the most authority any manager could have over unionized employees' rates and hours because he decided when someone on his shift needed to work overtime and approved requests for time off. (See DE 27-1 at 37:18-38:24, 112:24-114:12; see also DE 27-2 at 13:20-15:5; DE 31 at 13.) Brown was also in charge of making sure that his crew was trained, even if he didn't do it himself, and was responsible for making sure line workers followed the company's safety policies. (See DE 27-1 at 25:2-26:1, 38:25-39:2, 42:10-12, 116:14-22, 124:3-24; DE 32-3 at 59; see also DE 27-2 at 17:5-12; DE 31 at 13, 15.) Finally, Brown independently handled complaints and grievances raised by ingot line employees and had the authority to administer discipline for violations of safety rules and other infractions. (See DE 27-1 at 49:15-50:2; see also DE 27-4 at 15:19-17:10; DE 27-2 at 11:7-25; DE 31 at 14.)
The fact that Brown spent 50% of his time doing manual labor does not mean, as Brown argues, that he was a "blue collar" worker under the regulations that would entitle him to overtime wages. It is true that 29 C.F.R. § 541.3(a) states that the exemptions "do not apply to manual laborers or other 'blue collar' workers who perform work involving repetitive operations with their hands, physical skill and energy." But there are a number of reasons why this provision does not apply to Brown. For starters, the regulation Brown cites for the proposition that blue collar workers cannot be exempt anticipates that some production-line employees will nonetheless be managers by referring to "non-management production-line employees." See 29 C.F.R. § 541(a) (emphasis added). In addition, while time is a "useful guide," it is not the "sole test" of whether an employee's primary duty is management. 29 C.F.R. § 541.700(b). A worker who spends less than 50 percent of his time performing exempt work may still be exempt "if other factors support such a conclusion." Id.; see also, e.g., Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982) ("[T]he more natural reading of 'primary' is 'principal' or 'chief,' not 'over one-half. . . [O]ne can still be 'managing' if one is in charge, even while physically doing something else.") (citation omitted); Murray v. Stuckey's Inc., 939 F.2d 614, 618 (8th Cir. 1991) (finding that employees could spend 65-90% of their time on non-management and still have a primary duty of management).
Other factors that must be considered include how important the employee's exempt duties are compared to his other duties, whether he is directly supervised, and how his wages compare to those of other employees who do the same kind of nonexempt work. 29 C.F.R. § 541.700(a). Taking these factors and the time Brown spent on manual labor into consideration makes clear that he was a manager, not a blue collar worker. While he spent 50% of his time on manual labor, he always had managerial responsibilities and only did manual labor when a member of the crew was missing. (DE 27-1 at 117:8-25, 122:12-123:13.) In addition, as the sole supervisor on the ingot line, Brown's managerial work was necessarily more important to Aleris than his manual labor. Brown could stand in for a missing worker on the line, but they could not stand in for him. Further, Brown made nearly twice what the best paid hourly worker made on the line—at least $34 an hour, compared to $18 an hour for manual laborers. (See DE 32-1 at ¶¶ 5, 10-12.) Last, Brown was not supervised as closely as his crew was, and on weekends he wasn't supervised at all. (See DE 27-1 at 39:16-17.)
For these reasons, there's no question that Brown's primary duty was managing the ingot line, not working on it.
The next issue is whether the ingot line qualified as a "customarily recognized department" of the Wabash plant because it was a "unit with permanent status and function." (DE 31 at 11-12; see also 29 C.F.R. § 541.103(a).) In support of this claim, Aleris cites testimony by Brown that the plant's two main production functions were ingot and molten metal and that he had supervised the ingot line for nearly all of his 30 years as a production supervisor. (DE 31 at 12.) Aleris also notes that Brown supervised a particular shift of employees on the ingot line and that a team or shift of workers can constitute a subdivision for purposes of the FLSA. (Id. (citing 69 Fed. Reg. 22134, 2004 WL 865626 (Apr. 23, 2004)).)
The ingot line was plainly a customarily recognized department of Aleris. In his deposition, Brown testified that his "area of responsibility" was the ingot line, and he repeatedly distinguished between the "ingot end" and the "ingot line" and the "molten end." (See DE 27-1 at 41:21-23; see also, e.g., id. at 22:22-23:1 (stating he worked on the ingot line); id. at 23:15-20 ("I was once on the molten metal end . . . And they hired another supervisor in, and then I went back to the ingot end[.]"); id. at 29:23-24 ("They was supervising their end like the molten metal end."); id. at 27:24-28:3, 39:3-40:1 (discussing backups on the molten line).) Brown also testified that his 2012 job description was accurate, and that job description referred to training "a team of workers" and "requirements for the shift" and stated that production supervisors like Brown were to "[c]onfer with other supervisors to coordinate activities of individual departments and shifts." (DE 32-3 at 59.)
Even if it is true, as Brown argues, that the ingot line "affected work in other parts" of the factory, that does not mean that the line was not a customarily recognized subdivision of the factory. See 69 Fed. Reg. 22134, 2004 WL 865626 (Apr. 23, 2004) (agreeing that "groupings or teams may constitute a department or subdivision"). The question is whether the employees Brown supervised were "a mere collection of employees assigned from time to time to a specific job" or a "unit with permanent status and function." 29 C.F.R. § 541.103. All the available evidence points to the fact that the ingot line was a unit with a permanent status and function. The line existed as a separately supervised part of the factory for some 30 years under Brown, and all it did was produce ingots. (DE 27-1 at 22:22-23:24.)
Brown's other argument—that the ingot line was not a separate unit because he shared entry level employees with other supervisors—also fails. The regulations expressly provide that "[a]n otherwise exempt employee will not lose the exemption merely because the employee draws and supervises workers from a pool[.]" 29 C.F.R. § 541.103(d). Moreover, Brown acknowledges that, while he shared some workers with other supervisors, other hourly employees worked only on his line. (DE 27-1 at 29:15-30:20; id. at 46:15-47:9.)
Drawing all reasonable inferences in favor of Brown, the available evidence leaves no doubt that the ingot line Brown oversaw was a customarily recognized unit of the plant. Therefore, Aleris has satisfied the second requirement of the executive exemption.
3. Did Aleris Give Brown's Suggestions on Personnel Decisions "Particular Weight"?
The final consideration in determining whether an employee is an exempt executive is whether Brown's "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight." 29 C.F.R. § 541.100(a)(4). Relevant factors in determining whether an employee's suggestions about hiring, firing, and promotion were given particular weight are whether the employee was responsible for making such suggestions, how frequently the employee made suggestions or was asked to make them, and how frequently the employee's suggestions were relied upon. 29 C.F.R. § 541.105.
Aleris claims it did give Brown's recommendations particular weight and cites a sworn statement by Tony Whitt, who was plant manager during Brown's last seven months at the plant. (DE 31 at 19-21.) Whitt stated that he and the production managers "initiate[d] the . . . hiring process based on requests from Production Supervisors and the Operations Manager regarding manpower needs on the molten metal and ingot lines" and that upper management "rel[ied] on feedback from Production Supervisors regarding [probationary employees'] performance."(DE 32-2 at 3.) Aleris also points to job descriptions from 1978 and 2012 listing "[m]ak[ing] manpower recommendations to the Plant Manager" and "appraising performance," respectively, among a production supervisor's duties. (DE 32-3 at 53, 59.) Finally, Aleris cites Brown's testimony that upper management "would come by and say, 'Hey, how is that guy doing?' And I would say, 'Well, he is doing good' or 'He is learning' or 'He is not going to make it' or whatever." (DE 27-1 at 110:18-22.)
Aleris claims this is a sufficient amount of influence over personnel decisions to qualify for the executive exemption. I agree. Brown's job description expressly stated that he was responsible for appraising the performance of lower level employees, and he testified that he informed upper management when he needed more workers on the ingot line (See DE 32-3 at 59; DE 27-1 at 93:1-13; see also DE 32-3 at 53.) In addition, Brown testified that he had the authority to issue oral and written warnings to ingot line employees, and other witnesses testified that he could administer progressive discipline, including temporary suspensions for safety violations. (DE 27-1 at 49:15-50:2; DE 27-4 at 15:11-17:16; DE 27-2 at 11:7-25.) Further, Aleris's site director submitted a sworn statement that upper management decided when to hire new employees based on requests from Brown and the molten line supervisor and that they relied on production supervisors' suggestions in deciding whether to retain or terminate probationary employees. (See DE 32-2 at 3.) Brown's testimony is not inconsistent with this evidence, although he expressed frustration at his deposition with how long it took the company to hire new people after he told them that more manpower was needed. (See DE 27-1 at 110:18-22, 93:9-13.)
These things taken together show that Brown's recommendations about hiring, firing, and promotion were given particular weight in the context of a union shop. While Brown notes that he was not involved in interviewing or decisions about promotions, that's not determinative where a CBA required new employees to be hired at entry level and placed on probation for 60 days and where the CBA largely controlled promotion and discharge. (See DE 32-2 at 14-15 (procedures for bidding on open positions); id. at 21 (discharge procedures).)
Further, numerous courts have found that the recommendations of supervisors in unionized environments were given particular weight where the supervisor could initiate progressive disciplinary procedures and/or where the company relied on suggestions about probationary or temporary employees. See, e.g., Beauchamp v. Flex-N-Gate LLC, 357 F. Supp. 2d 1010, 1016 (E.D. Mich. 2005); Scott v. SSP America, Inc., 2011 WL 1204406, *15 (E.D.N.Y. Mar. 29, 2011); Garrison v. ConAgra Foods Packaged Foods, LLC, 2015 WL 366431, at *10 (E.D. Ark. Jan. 6, 2015). And that was exactly the case here.
Finally, it is not fatal to the exemption that Aleris did not heed Brown's recommendation to terminate a particular worker who he thought wasn't "going to make it[.]" (See DE 27-1 at 124:25-126:15.) The fact of the matter is that Brown was a lower level supervisor of unionized workers. His authority and discretion in the area of personnel, like that of all supervisors at the plant, was circumscribed by a CBA, but it was not so limited that Aleris could not properly classify him as exempt.
Conclusion
All these reasons lead me to conclude that Aleris properly classified Brown as exempt. This is consistent with the Eighth Circuit's observation just a few years after the FLSA was signed into law that the range of employees considered "executive" was meant to be broad enough to apply "with particular aptness to persons who are commonly called 'bosses'" and was meant to extend "from the president . . . down to the foreman in charge of a very minor department." Smith v. Porter, 143 F.2d 292, 295 (8th Cir. 1944) (citation omitted). Brown was the "boss" on the ingot line, and, although I don't doubt that his job was difficult or that the number of hours he had to work was substantial, nothing in the FLSA required Aleris to pay him more than it did.
Accordingly, Aleris's motion for summary judgment is GRANTED, and Brown's motion is DENIED. The Clerk is instructed to enter judgment in favor of Aleris.
SO ORDERED.
ENTERED: March 28, 2016.
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT