George W. Shultz, Secretary of Labor, United States Department of Labor v. Robert B. Parke, D/B/A Southwestern Guard Service
413 F.2d 1364
5th Cir.
1969
Check Treatment

*2 SIMPSON, Before COLEMAN MEHRTENS, Judges, Dis- Circuit Judge. trict Judge: COLEMAN, Circuit brought by the Secre- This action was tary under 17 of Labor Section enjoin de- Act1 Fair Labor Standards violating overtime and fendant from Act, recordkeeping requirements of the from continu- and to restrain defendant unpaid ing $4,100 in some withhold due employees. Defendant admit- Act to its noncompliance the Act’s over- ted with requirements, but claimed Act, by were not covered engaged they in com- were not since goods production or merce amended; seq. 201 et § U.S.C. 1. Act of c. Stat. June Secretary. by one-half for overtime work his em- contended commerce as ployees buildings, stipulation parties’ at Federal felt On the basis considering prior Wage-Hour investigation, facts, facts and after experi- trial, no the summer of he “had rea- the able and adduced inquire son” to judge that de- whether the Fair Labor concluded district enced *3 required pay employees the cov- him to such within Standards Act were fendant’s they compensation employees erage had not overtime to at that of the Act and buildings. on paid its the bank a conference with over- At in accordance been August 11, 1966, attorney He, however, appellee’s requirements. de- in- time Wage-Hour investigator grant relief re- formed the that the clined quested Secretary. “preliminarily he had ad- decided and so the employment vised Mr. Parke that this an to the denial of As did not come under Fair Labor the violations, done in as was future August Standards Act”. On Co., 5 v. B. B. Wirtz Saxon investigation, the the conclusion of the judg vacate we investigator require- reviewed the Act’s for fur ment belouTand remand the appellee, placing particu- ments with the (1) light of ther in the emphasis upon lar the overtime and (2) exer herein and what is said recordkeeping requirements. In view judicial discretion cise of the sound comply, his continued refusal to this ac- consistently court, with the trial November, thereafter in was filed purposes under which of the Act brought. suit was Appellee admitted at trial that he did injunction com- an As to the denial of begin pay statutory overtime com- manding re- and restitution reverse pensation June, until than 1967—more judgment directions enter mand with complaint six months after the filed was Secretary. for the —explaining pay his failure to compensation engaged providing ground Appellee on he is both guard attorney employees and for various his and service believed his watchman During buildings Houston, coverage. were not testimony Texas. within the No Act’s pertinent action, given by period these to this was either Mr. attorney Bank Parke or National his for included as to the basis Southern Building December, 1965, (from this belief. trial), Capital National Bank time of Opinion In a Memorandum dated March, Building (from July, April 1, 1968, the district court held 1966), House the United Customs States that Mr. Parke’s were within May, 1967), (from June, 1966 to and citing coverage, the Act’s numerous cas- November, Building (from new Federal es in The of that conclusion. June, May, from 1964 to and appellee court also held that while had May, 1967). stipulated was substantially complied with the Act’s buildings principally oc- each these is recordkeeping requirements, em- bank, agency cupied by government a or ployees compensated had not been in ac- working regularly engaged in business provisions. cordance with its overtime papers papers, or commercial bank However, enjoin the court declined to vi- shipped out-of- other materials to be future, provisions olation of those stating handling state, or materials received good appellee had “acted in guards and from outside state. counsel”; faith and on the advice performed pro- duties of watchmen that there was “no reason to believe that tecting premises occupants and counsel’s advice insuffi- was based on theft, trespassers fire. and coverage cient research since in this although hardly open Appellee he case is testified that and shut matter”. obliga- Nothing under contractual a there was “some evidence knew was pay [appellee] presently paying time and that tion to the Government failing pay overtime”, the court sel in time a half half compliance is no reason overtime. There is concluded probable remedy of based believe counsel’s advice drastic and that “the tive, motion grounds least case, employees out, holding of tered ment with ly June sought by table in a that the adding that “the retary’s motion, complain faith and that future is cannot have his cake lowed. opinion tion and The court concluded: On On found that defendant mandatory in Act is inter *4 order the restraint April 8, relief Supplemental Memorandum May denying for a new In that refusal restraint of for this when is not Act, alia, supplemental those decisions which when probable, I to which Secretary. vernacular, sums. equitable all the the Court called have motion, trial Secretary stating cases he instituted court denied not now further judgment where, for”. “Having previous- or, in not received they and eat Secretary injunctive compliance with grant of further of this defenses are persist findings. As it was acted should at Subsequently, sought withholding be Secretary disagree- heard was the Sec- alterna- this it entitled pointed nature, filed relief with- dated equi- too”. good hold en- my ac- al- on insufficient research since shut matter. Mitchell v. Strickland CA Transportation age addition, uct of sham delusion.’ presently paying any sumed an ‘ostrichlike attitude CA comply home. show that persisted some F.2d junction should not issue. er man, sion to 811 CA This compliance ance Atlas “The Blanchard, knowledge 1959); 1959). (5 indication that is a decisive leads 261 F.2d 778 Roofing Manufacturing Co., evidence this case is with Goldberg grant probability as 1962). (5 is But but cf. Mitchell v. me to the defendant his the Act was or of required by probable Secretary CA (5 Co., nor pretense, refusal to cf. Mitchell v. coverage defendant’s injunction. v. CA time and 1967). hardly believe that factor in Cockrell, (5 of the defendant as the defendant 1962); and that CA future has failed not the F.2d 821 was comply There 1958). stubbornly Section a failure open [574] the deci- v.Wirtz Pidcock, half Mitchell brought of self- compli- cover an in- Haus prod there was aft In (5 (5 to is 7. proper “Having evidence, ex- relief the instant is a I considered judicial opinion On of discretion”. June ercise am of the the drastic denying 27, 1968, remedy injunction entered an order was not called for Secretary’s public motion. and that interest would necessarily thereby. be served Mitch- Secretary appeals from the refus- Bland, (5 ell v. CA enjoin the overtime al violation of 1957). However, that fu- in the event future, provisions and also provi- ture violations of the overtime with- the refusal holding continued restrain by Secretary, he sions found are unpaid overtime may reopen proceeding move to due under the Act. prompt hearing before the have may Court and whatever seek relief I Blanchard, appropriate. Mitchell v. Injunctive Relief The Denial of F.Supp. (N.D.Fla.1958), Violations Future (5 1959).” rev’d. CA 272 F.2d 574 as found and held District Court only Our function is one of review follows: opinion and the of the District Court is great respect. all cases entitled acted defendant “[T]hat empowered We are to reverse his factual good of coun- on the advice faith and here, only clearly Saxon, ques- findings they In erro- there no if was requirements neous, Act applying announced the standard Chaney City Galveston, by were not met but the district court example, For found the Act and no intention violate voluntarily compliance a con- made the evidence would was where filing way, prior the trial suit. thus clusion choice either judge permissible felt views there no need for an between two clearly weight compliance is not secure further with the the evidence course, we are of the Of if law. erroneous. opinion error there considered supra, Jones, In we noted Wirtz responsibili- then that is our law sole designed Section “was and en-

ty. necessary acted as a measure assure compliance effective uniform agree completely with the We public policy, with and adherence to a question District relating wage labor, standards restraining pur issuance of adopted in the National interest”. suant to Section 17 of the Fair Labor equitable Standards Act is an matter think, therefore, We that while coming general equity juris within the in cases of this nature the trial court powers diction Court. We so *5 sits and decides in the of exercise that Jones, 1965, held in v. 340 F.2d Wirtz ordinarily sound discretion attributed to again and v. B. B. Wirtz Saxon equity courts of the is function never Company, 1966, In 365 F.2d 462. by requirement theless restricted the held, Saxon, specifically “there can we eye that it must done be “with to the an question be no of that issuance the purposes Act”, Saxon, Wirtz v. matter, injunction [in cases] a supra. within the sound discretion of the trial- Purely findings as factual rendered judge”. limitation, the absence this of we would say, Saxon, however, In to went on say find to ourselves unable the District fell into clear error when decision the of lower court “[T]he good comply he found a faith refusal to review, subject and where its necessity with the Act lack of for a discretion has not been exercised with injunction against Be- action. eye purposes Act, the of however, cause of these limitations (emphasis added) it will be reversed. findings great encompassed by un- especially Such decisions have been certanity. have concluded that we We involving application common in cases attempt should not resolve uncer- of the Fair Labor Act. Saxon, Standards that, tainties but here * * * original pointed We have out trier of the fact first that an should injunction perform function, require does no more than hence remand * * * purpose. for the law be followed employ minimal inconvenience to the concisely Stated this is beclouds what er, against balanced of the difficulties findings below. enforcing public the Act to the bene fit, argues strongly upon issuance for of an Reliance advice injunction. Pidcock, provides Mitchell 5th v. counsel the chief for Cir., 1962, finding good That, 299 F.2d 287. faith. remanded, must course, (or open case be and on re is not irrebuttable shut) good mand further should be evidence of faith. See given, Blanchard, the test laid out Cir., Gold Mitchell v. 5 272 berg us, v. Cockrell F.2d 811] F.2d In [303 the case before if now question really of whether or not counsel for Mr. Parke had consult precedents relief should be ordered.” ed the he found would have doing holding coverage, of clear many cases “Continuance of 3456*8 by the Act.2 violations type covered face of official work were warn- this ings seriously impeach continuing and conduct item of evidence such viola- One tions good year Mr. Parke for faith: more than claim a after es the voluntary complaint con was filed virtue case removes knew pay category obligated overtime tract where an buildings guards is unnecessary”, federal F.2d at 607. paid it. he had but Upon good remand, shown, cause sponte, is, course, or sua the Court comply after com A failure reopen free ease, if considered brought de plaint must is made or suit necessary, proof for further reso- particu significance pend for its problem. lution of this coverage If is a facts of case. lar legal upon advised which well matter II might reasonably then the differ minds Injunction The Denial of an penalized wage payer not be Restitution judicial exercising right deter reasonably Secretary val If no insisted in the District there is mination. Court, defense, is and should and before this then the rule Court that if id cov- erage Blanchard, e.g. different, is found an Mitchell v. Roofing withholding past wages supra; Manufac Atlas due Wirtz v. Goldberg citing must turing Company, supra; course, v. issue as a matter of 811; Malthor, Cir., 1968, Cir., 1962, Inc., Wirtz Cockrell, Hausman, Cir., Buffing Harper Wirtz v. Mitchell v. Mississippi See, also, Company, Wirtz 1968. The F.2d 778. Machine Cir., 1966, Court, response Corporation, District con- Publishers these held, tentions, opinion in a “that it was remained wherein *6 Cir., Joyce Agency, 1958, Beckworth, Cir., v. 7 261 F.2d 889. Mitchell 5 2. 1. reversed, 241; 1954, U.S. listed F.2d 348 of the oases above 211 In some Jaffe (1955) night 436, 945, L.Ed. 740 99 in a footnote. The 75 S.Ct. were recited Inc., Joyce Agency, affirming Durkin not covered v. in held watchman Jaffe guard- guards scrap F.Supp. 918; and watchmen the metal little of 110 because warehouse Sams office and commerce. at central ed in interstate furnished moved owning company presented stores in dif- retail a similar situation. of case, states; Court District In instant the ferent the Walton, the be v. Southern “There can no doubt 2. Administratrix stated: agencies Package Corporation, 540, government banks, businesses 64 and 320 U.S. buildings (1944) reversing question are in L.Ed. 298 in the 88 housed S.Ct. night goods production engaged for watch- of 11 So.2d Miss. 194 night meaning guarded Fair the mill at at within the of who veneer commerce man * ** operation; I find Act. when it Labor a time was not Standards employees Authority City Building of the that the of defendant’s 3. Public work Cir., 1962, Birmingham Goldberg, connection and immediate v. 5 had such a close of goods 367, night production of for commerce watchmen and others with F.2d the 298 part employees building housing supplied it and as to an essential of for a be were, Security therefore, the within U.S. Administra Social scope ; the Act.” appeal Cowley Bro., employer as- does not these v. R. & 4. Mitchell John pects Indeed, 105, night have Cir., 1961, Inc., case. it would F.2d of the 292 5 junkyard; have done so. been frivolous to at a watchman eases, McComb, Company to counsel available 5 cited Russell v. 5. findings watchman-guard employer 524, night and the decisive and F.2d 187 grocery business; with trial leave us of the court conclusions a wholesale at Realty, Inc., advice the firm conviction counsel’s Mitchell Famous remedy Cir., 1954, factor as to material fire not a F.2d 198 watchmen presently City pres- applied buildings on the record as it in New York whose fire rates. stands. reduced insurance ence Jaffe, relied Mitchell v. Parke Cir., 1958, 261 F.2d and Sams Cir., 1966, against Company, injunction F.2d re- of an the issuance affirming supra. Burk, withholding past due overtime automatic, mechanistic wages not an agree the court below an with We coverage”. finding of consequence of a remedy. injunction harsh We is a legitimate objections well aware recog- by injunction. government We of this we facts Under existing generally reluctance nize the necessary de to reach or it do find' require operate in- businesses Applying point. rationale cide the junctions they look the shoulder over prior in this Circuit decisions contempt proceed- approach of opinion facts us we are before Nevertheless, ings. held in this Court the District Court have or Manufacturing Roofing Atlas Wirtz v. dered restitution. Company, 1967, 112, “in order Congress policy Jones, swpra, In held that effectuate the Wirtz v. we enforce- injunction requiring employer effort aid the administrative an injunction policy, is a pay previously ment of this overtime necessary tool”. is not to collect a debt but withheld against continuing offense correct stated has The Fifth Circuit public interest. so, again, correctly equity the dis- District Court sits Wirtz, Cir., Builders, In Burk Inc. v. position Wages cas- and Hours these employer had a say, unnecessary it here to es. We find post contract to construct a office build- case, con- decision of this that no ing Hollywood, District Florida. The ceivably possible could circumstances enjoined it to make restitution of upon district court ever arise which a wages previously withheld. res- in the denial of would be warranted per affirmed We curiam. is true that pass upon sit- shall such a titution. We Court, in Burk the District in the exer- if does arise. uation and when it discretion, granted injunc- cise of its the denial We vacate tion, denying happened rather than it as and remand violations case, disposition here. In our of that aspect further of the case for the however, spoke as follows: of the District Court. reject the contention that “We also reverse the denial of We equities’ permit ‘the of the case the resti- commanded which would have wages appellant ques- retain the *7 compensa- tution of withheld overtime payment tion and their into the forbid to the District tion and remand Treasury as ordered the trial court. appropriate that an with the direction public policy In addition to considera- granted. injunction be application tions involved in the part, part and in reversed Vacated enforcement of the Fair Labor Stand- with directions. and remanded Act, equitable principles ards would suggest appellant is entitled Judge (concurring SIMPSON, to the funds. Circuit Such considerations court; specially): the action of the trial equities appel- are not with the opin- fully II in Part I concur [Emphasis lant. Wirtz v. added]. reversing refusal district ion Jones, (5 1965).” mandatory court to enter past language requiring due over- beyond restitution ques- This indicates wages. provide this refusal that had the District Court denied injunctive clear abuse relief was a it would have been re- any— slight categorically discretion —if whatever versed. held that district equities appel- the decided cases leave “the not with the content See, Realty judge I also, in this am lant”. situation. Wirtz v. Hines case panel in another to another leave by the clearly holding, foreshadowed relief eases, decided matter as a issue situation course. opinion, rather I of the to Part

As the district back

than send of in- judge for further violations, junctive relief that, circum- hold

I would presented, the refusal here stances discre- clear abuse relief was

tion, that future violations and direct

enjoined. specially in

Accordingly, I concur opinion.

Court’s America,

UNITED STATES Plaintiff-Appellee, DEAS, Defendant- Cecil

Herman Appellant.

No. 26476

Summary Calendar. Appeals

United States Court Circuit.

Fifth 13, 1969.

June *8 Hendricks, Pigford Jr.,

Thomas M. & Hendricks, Pigford, R. Meridi- Howard defendant-appellant. an, Miss., for Hauberg, Atty., E. Robert E. U. S. Atty., Strange, Asst. U. S. Jack- Donald son, Miss., plaintiff-appellee. BELL, Before AINSWORTH GODBOLD, Judges. Circuit