court granted summary disposition based on the exemptions that were claimed by mr little's employer felt tired mr little cemented in granting bell tires motion the district court last cite of three very important principles the first is that bill tire the employer bears the burden of establishing exemptions and every element of each exception the district court does not acknowledge specifically that burden in its opinion and i submit that the the the tenor of the opinion indicates that it lost sight of that burden secondly mr court lost sight of the fact that exemptions to the fair labor standards act overtime requirements are to be narrowly construed against the employer and to further the remedial purposes of the fair labor standards act they should be employed only where the employer applied only one of the employees clearly in an unmistakably within the terms and the spirit of the exemption and finally it appears the district court lost sight of the fact that this was a summary judgment proceeding and not a bench trial well in it mr little didn't it become part of management has the ultimate question your honor right is a very broad definition he was and it doesn't apply to those people right if certain conditions are met and that's and that's the issue here if if mr little's this is the executive exam by the way on either exemption there's there's no dispute that he met the salary requirements of the first his primary duty has to be management number one secondly  he has to direct to the work customarily and regularly of two more employees and third he has to have firing authority or significant in impact into that so the fact that he's entitled management and that he has some responsibilities which are identified as magic management responsibilities is not enough for instance the bring us case and on which the district court relied made the statement that if an assistant manager has management duties then he's exempt is just flat wrong and extends the extends these exemptions well beyond the intention of congress as expressed in the regulations i think for the executive the this court's this court's decision in thomas versus speedway is is instructive in that case you had a store manager she did a lot of other stuff she stocked everything but the store was hers she hired she fired she interviewed the store couldn't run without her here you have an individual who spends eighty to ninety percent of his time behind the counter selling tires and car repairs now that eighty nine eighty to ninety percent is the sales that leaves everything else that he does including filling out invoices making some orders to replenish inventory that set by the company everything else he does become comes into that into that period of time the court below it appears accepted the testimony in the evidence by bell tire and fail to take to take into account mr little's testimony and the reasonable inferences from that testimony for instance did he customarily and regularly direct the work of other employees mr little was asked to do supervise he said no i wouldn't say that i supervised did you direct the work of other employees well in the absence of the store manager if the need for direction came up but telling him what job they're supposed to do what what what particular customer is assigned to them and what the task is is the so called running of the board that was one of his principal jobs was not absolutely though if if if if he or the manager doesn't put somebody on the board and then that sale then that repair guy don't do the  job no that's not how it works you're on it first of all and the manager unless he's working behind the counter isn't going to put put on the work board because the testimony is all right you've got the counter i don't know if you've been into bell tire discount tire or anything they've got a counter are three or four people stand be standing beside it there's a wall and a door that goes into the work area and all that was on that wall it's either clothes pins or hooks or something to put on the salesman who ever dealt with the customer fills out the order it's for such and such tires it's for alignment it's more whatever and then there are columns for tire technicians tune up people whatever and you take that order and you hang it on the next available person ok now that's done by every salesman and mr little made that clear he has that authority that responsibility just like everybody else at the counter does you finish in an order you hang it on the board in deciding what the order is he testified that well if one person has somebody that's waiting in the store and somebody else says something that somebody is picking up the car in six hours the two of them talk in ok we can we we the salespeople and he can decide to put that on so your honor he directs the work through that work for it in the same way that the person standing a mcdonald's who puts a an order up on the board saying two big macs in order fries and a coke directs the work they pass on what is supposed to be done but if there's a dispute as to who alignment get done first back in the shop and the salesman he makes a decision i don't know your honor there's a question wasn't asked it's not in evidence what was testified to by mr little is that is that the salesman who wants to move his his order up talks to the salesman who has who wrote the order that's ahead of him and the two of them make that decision there's no evidence that it ever gets to to mr little is the first assistant manager one of the one of the things that i thought was at least curious in this and i don't mean to this is dispositive but is the is that what your client was paid compared to what everybody else was paid now he's clearly not a tire technician right and he's getting paid almost three times what a tire tech writer but he doesn't  same work and that's not understand that they're on the back foot non tax got so he's really saying i'm the quibble and of a sales person in in the sense that i just perform primarily salesperson duties that's neither executive nor administrative right to a great extent yes so why was he getting paid almost fifty percent more than salespersons if it wasn't in reflection of his additional responsibilities and duties as a manager where they just stupid pay him as much as their pay and well actually no they were paying him less than they would have had to pay him at the if they paid him at the same rate as the salespeople for the hours that he worked if you take the the amount that was paid to the average sales person and by the way we don't know in there whether the other assistant managers were included in those sales persons because there's first and second assistant managers all i know is that assuming that it's an addition testimony seems to say the average compensation for a salesman was thirty two thousand five hundred seventy one right and if you if you compute taking that thirty thirty two thousand and basing that on forty hours and you come up with a regular rate for that person and if you applied an overtime rate to that and you had fifty five hours just fifty five hours a week which mr little says that he that he earned or that he worked he would be making over fifty thousand ok so in in fact he's not getting paid as much per hour with overtime as he would be getting paid if he were being a salesman at thirty two thousand so it seems to me we're making this more complicated than we need to salesman and averaging thirty two thousand but he makes forty six thousand right so you're saying that they were paying him more because he worked more hours as opposed to him exercising management duties and responsibilities that was that what you're saying first of all i don't know what their motivation was i am saying that in what is he what is he claiming was the basis of him getting to almost fifty percent more he was performing some management functions we don't dispute that we don't dispute that at all he was performing some additional administrative type but without discretion administrative work such as doing reconciliation such as taking the cash such as opening the doors  things that didn't involve discussion but they were things above and beyond what a salesman did he did additional nonexempt work which the sales people didn't do that's one justification for paying more but also your honor he worked more hours than those other people worked is that on the record i don't remember seeing it i'm not now he that's saying it isn't where what i go to find your honor i don't believe there's anything in the record regarding the hours that the salespeople worked although i believe that in mr cruise's that there's a justification in terms of what's in the record isn't ours job is everybody does their job so there doesn't really need to be a lot of actual decision making to make this business home a lot you understand generally speaking the hypothetical so would a manager or an assistant manager of my hypothetical not fall within the executive or administrative because in reality they don't actually have to do much to manage  difficult hypothetical somebody has to be hired some you have to hire somebody so it's that management has to be done right mr little didn't do that the managers did somebody has to set the schedules when people are going to work and assign them their hours mr little testified that all he did was input those so there is some management that is required to be done even in even then in that hypothetical they believe my time is up thank you very much morning william forrest on behalf of bel tire i'd like to start with the primary duty test for management under both the regulations and the case l and i think it's interesting that both parties here are relying on this court's opinion in thomas in that case the key question was the court asked itself under the very first factor of the primary duty analysis what duties are the most important to the success of the store and this court held in in thomas scheduling training and hiring if you don't have those three things you distort can't function here there's evidence in the record in the record that plaintiff did all three of those things and at least participated with respect to hiring in those things in addition to the question that i have is if somebody acts as the assistant manager one hour a week while the manager is away would that be enough to make the assistant manager an executive under this test under this cour and under your hypothetical the question is that instead is to go to the second factor in primary duty which is the time spent performing example work and under your hypothetical you're saying the employee would would act as the would perform the manager lieu of the manager because the managers away one hour a week if it's it's one hour a week you have to look at what is what is the employee doing well all of those things i'm going to hypothesise i know this is not the nine percent their sales sales now where i believe your hypothetical departs from the facts in our cases and this is the same holding in thomas during that and under your hypothetical ninety nine percent of the time mr little in addition to selling also had the responsibility the concurrent responsibility of monitoring what was going on in the shop there was a discussion about the work order board but in addition to that in addition to while he's selling he has to be back in those ten days where those tires are going on tracking the time spent on the job to make sure people are keeping up assisting the tax giving them the tools that they need the supplies that they need and she testified about this heat there was a dispute among the tire techs and he said we have a dispute here's what i'd like to do to have it fixed he if you look at his discipline i think i think his discipline is very instructive let me step you right there because just like in my discussion on the news to her i don't remember seeing or reading that the image that were being or the picture were being presented as he's standing at the sales desk eighty to ninety percent of the time and that's all he does now does the record reflect and if so where do i find it that he's the that he's the guy going back in the days to make sure that what they're doing for his orders and other salesman's orders are actually being completed properly and timely absolutely i would point you to both his first time start with his testimony where he says just tell me where i find his testimony right so his testimony is number one where he says i regularly directed work in the shop number two the deposition testimony of our rule thirty six witness which said it page one twenty five most of the day quote unquote is directed is directed at going back to controlling the workflow they have to be back there every fifteen minutes i would then point you to the declarations of the store managers which said very send him back to do exactly that go back and direct the work and just one more follow up to that that wouldn't probably be particularly meaningful if we found out that all of the other salespeople the thirty two thousand dollars people also were responsible to go back and make sure their orders were being satisfactorily handled so does the record say anything about whether mr little's actions in that regard were different or distinguishable from the rest of the sales staff our declaration spoke specifically to what his mr little's duties were what specifically did he do as the as the first assistant manager he didn't speak to what the other sales people did or didn't do i mean if we just don't know that we don't have evidence correct we don't have evidence in the record of what the other sales people did but i would point out that the regulations make it clear the fact that you have another person performing exempt work does not by itself eliminate igs the exemption they say that the key is obviously the exemptions should and swallowed up the whole here so if every sales guy at that equally was doing the same thing you wouldn't be making the argument than one manager overseeing them it still that the requirements to what you can't have is thirty or forty managers all using the same two people as as their directions as their employees and here you had testimony that you have a store manager and a persistent manager and he is little as the first assistant director and and so under that scenario if you have mr little and in a store manager there together at the same time and even a second assistant manager hypothetically you're still going to have the ability to have up to four to six supervisors to to supervise the individuals in the shop alone based on on the numbers in addition mr little testified he supervised the salespeople he mentored the salespeople so it wasn't just the people in the shop turning back quickly to the primary duty task and this notion that back to the compensation for just a second again  suggesting this is dispositive but does the record show whether there were other people making in the neighborhood of what he was making and if so who are they and what is their role in the store the record shows only the mr little compensation which is forty six thousand five hundred dollars and the people he's comparing himself to the salespeople he doesn't claim he was a second or third a system and he claims i was just a salesperson and it shows their compensation at thirty two thousand five hundred dollars the records show what was the basis for each person's compensation so was he paid salary regardless of the number of hours and where they paid an hourly rate the record shows that he was paid a salary and a bonus based on and we think this is significant based on the overall store performance that's indicative of management that's indicative of an executive he co whether any other salespeople got bonuses no it shows what their total store or what their total compensation was but do we know whether they worked overtime or not that's not in the record it what we have in the record for those sales people are what they ar ultimately even in thomas what this court looked at it here and sales commissions to which would seem to be more indicative of not managerial sales well he did but they were not disputing sales was part of mr little's job it was here in a salary he did or in sales commissions and he also earned bonuses based on the entire performance of the store but the forty six thousand than that he got could have been because he was a really good sales person as opposed to because he was a manager slash executive this court grappled with the exact same question thomas and you looked at you looked at three things there you looked at the steep base salary you looked at the fact that the employee in that case also got a bonus based on the total store performance and then you looked at the entire grossed earnings and said look under any of those there's a reason to to your hypothetical originally that you're paying someone to have that much more money and i think if you look at the gross amount between salespeople and mr little it's clear that they were paying him a very significant and it was for those that that management work so what percent of his time does the record show was devoted to management type of activities he testified that that he spent eighty to ninety percent of his time selling and the rest of the time manag g so that leads me to the question we take all the evidence in the light most favorable to him right because that's you doing to that's the standard and you have the burden anyway of showing that he is exempt employee pro so if if he were doing management one hour a week would that be enough to make him a manager under this exemption if it depends on what you define sales as hit the testimony is very clear that there's not this clear dissection between when you're selling and when you're managing he didn't take off one hadn't put on another that would apply to all the sales persons that if there's what those other salespeople didn't have management duties there's no there's no argument or suggestion to understand why you only answer my because this is the second time i asked you and you didn't answer the first time in your not the answering i'll try hell i'll infer then that you don't that there is some division point between one hour of management and the ten to twenty percent that he admits he was managing our contention is and i'm not trying to avoid your question i just don't think it's a yes or no answer and what we're saying is and we what we believe the evidence shows very clearly is that during that eighty to ninety percent he was managing he testified my duties did not stop when i was selling they were concurrent de regulation speak specifically to this they say first assistant managers can stock shelves and direct employees at the same time and we think that's precisely what happened here that's burger king one that's burger king two that's exactly what this court held in thomas the court said you can do these things you can physically do something else why you manage and if you look at what it what it was that mr little was doing when he was there a bet monitoring the shop he's got a lot of the duties that take him back into into the shop to to watch what the employees are manager of the store manager the store manager is testified yes they're there when they're there they have responsibilities but they also said we delegated and the testimony was at dell tire the store manager in the first assistant really act as a team and together they were there are possibly for operating the store they're scheduled on opposite ends of the shifts one will open one will close there is a period of overlap during that overlap and the testimony is clear on this our manager say we delegated we assigned mr little to take care of the shop we didn't keep it all to ourselves and that gets to the is there any dispute about your claim that he was the sole manager for twenty two percent of the time no  your honor that is undisputed so it we do have an interesting dichotomy here where he says he's just a sales guy for eighty to ninety percent of the time but the records show he's the only management employee there for boss if you're the boss you're the boss whether you have to boss anybody around during that time or not it seems to me precisely in we would cite you too for that principle to mehlis versus city to pile up in the ninth circuit case but this quote we think goes exactly to that point there the plaintiff argued that he did not provide actual day to day supervision because his subordinates were competent motivated employees to function well with minimal oversight your hypothetical however the duties test does not require constant supervision it requires customary  regular supervision which this record establishes without contradiction plaintiff's position would create the odd result that a manager with authority over a veteran crew of responsible employees who follow the rules and work independently would not be exempt while a manager with identical forty over a two six two four four pages seventy eight and one thousand nine hundred nine case finish up if you would please sure by telling us when you've got him claiming he's not really a manager nothing for him to do he's selling eighty to ninety percent of the time even though that's refuted by the twenty two percent of the time why is this not a case where there is a sufficient factual dispute about what he really did to go  the there is no jury question here because the plaintiff admits and we think this is the absolute key that during that eighty ninety percent choc where he says i'm selling his management duties are occurring concurrently during that time period there's no dispute so you have a twenty two percent undisputed during the seventy eight percent you have the store manager saying we delegated he performed most of these during that time and he did not testify that i only directed in the absence of the store manager his only condition at page thirty six or thirty seven of his deposition is that i managed only if the need arose and that gets to our point which we just made which is you can't blame your employees for being competent  less or any other questions so thank you here standing in front of the microwave ovens we find that one minute is a very long time standing in front of this bench twelve minutes is a very short time i think the important points that need to be stressed again is that this is some are judgment that we're that you reviewing and not a trial but it doesn't seem to me that there's a huge factual dispute here it seems like the dispute is the legal conclusions that are drawn from the these facts so why am i wrong in that well for instance there is a factual dispute about how much time mr little spent doing management he spent eighty to ninety percent of his time doing sales there's no testimony as to how much time he spent doing the nonexempt clerical functions that have been  identified but is it true that you admit he was the manager because there was no other manager at the store for twenty two percent of the time he was the person that was the highest person in charge in the absence of the manager well you're absolutely is is he denying that during that time that he was managing whether you needed to do anything or not or are you some extent are you saying there were really was no manager there because your guy's just a sales guy he's still he  testified that he didn't believe he had the authority to impose a discipline that was something that he had to he had to check with the assistant manager with the manager if there was a refund that needed be done some adjustment on the daily or computer system which was only during the end of the period at issue here he didn't make a decision if the manager wasn't there and he couldn't reach them he'd leave him a note and tell the customer the manager will have to do it so in many respects no your honor he was not either either he was in charge when the manager was gone or nobody was in charge when the manager was gone it's got to be one or the other so what do you claim well and your honor what i'm doing is disagreeing with your characterization i mean yes he was the only person there but if it came to any real decision that had to be made he didn't make it he wouldn't make it so you're claiming that during the time there was no manager that that you're claiming that when the manager was gone he wasn't the manager there was no manager that's your quote in a sense yes your honor he was a manager in some pos he was the person is shot that's why you qualify because the manager has some authority right that's that's the notion of the executive exemption is where the people that make the decisions and the nonexempt people are the people that the don't we were running this show was he the the only person  there and the person that would have to handle in some way every situation that came up during the manager's absence yes i agree with that but did he have the authority to make any real decisions could he hire somebody in the absence of the management manager no evidence that he could fire somebody give them a raise and i think anything like that he he in fact didn't have any authority and that's why i'm saying that even though managing in the only in the absence of a manager is not enough and he had no real authority even when he was the only and he wasn't the only management personnel he was just the highest they had second and third assistant managers and it's well