488 F.2d 443 | 5th Cir. | 1974
Lead Opinion
We review on this appeal the decision below in a case arising under the Equal Pay provisions
I. BACKGROUND: THE FIELDS ORGANIZATION
A. The National Organization
Fields, a subsidiary of Food Fair Stores, Inc., is a chain-store enterprise operating more than sixty retail outlets in eleven states on the Eastern Seaboard of the United States. Fields’ home offices are in New York City and Philadelphia, Pa. Its territory is divided into three regions for purposes of personnel administration. Each' region is headed by a director who oversees the personnel files of employees in his area. The Fields’ Industrial Relations Department in New York maintains all personnel files. Initial hiring of personnel and setting of salary rates for each of the individual Fields’ stores is conducted either by the regional personnel director or by a representative of the New York office. In addition, the New York office issues periodic directives detailing salary ranges appropriate for different geographical areas and classes of employees. Finally, all wage increases are subject to approval either by the regional personnel director or by the New York office.
The individual Fields stores are each headed by a Store Manager and two Assistant Store Managers. Each of the departments within the store is headed by an Area Supervisor (also referred to as a Department Manager). Fields follows what is apparently an industry-wide practice of dividing its departments into two categories — softline goods and hardline goods. In softlines are included clothing and infant accessories (cribs, furniture, mattresses). The hardline departments contain all the other goods sold by Fields (housewares, cosmetics, automobile accessories and numerous other lines).
The function of the Area Supervisors in the hardline and softline departments is roughly similar, save in the matter of ordering replenishment stocks. The basic re-ordering of most softline goods is handled by a computer which is fed pre-punched portions of sales tickets removed by cashiers when the items are purchased. Re-ordering of hardline goods is based, for the most part, upon physical counts of merchandise on hand. The Area Supervisors in the hardline departments are responsible for these counts. Managers in both hardline and softline departments must be cognizant of fast-moving items and reorder accordingly.
II. THE COMPLAINT
On June 14, 1968, the Secretary filed a complaint alleging that Fields had violated and was continuing in violation of Sections 6(d) and 15(a)(2) of the Fair Labor Standards Act
Fields’ answer asserted that it had not wilfully violated the Act in that it had not intended to discriminate among its Area Supervisors according to sex. Fields alleged that it had hired its Supervisors at the going market rate and that compensation had been based solely on the going market rate and not upon sex. Fields further answered that there was a basis for differentiation between the hardline and softline managers based
III. THE OPINION BELOW
This district court entered findings of fact and conclusions of law supporting in the main the Secretary’s position. The court found the existence of discrimination based upon sex in some particulars in each of the three Fields stores involved.
The district court judgment required Fields to refrain from withholding minimum wages and overtime compensation from the employees found to have been the object of violations of'the Act, and further enjoined Fields from committing violations of the Act “. . . in any of its stores now in operation and hereafter operated by it.” Both parties appeal from the findings, conclusions and judgment. We now consider the issues raised on appeal.
IV. THE HARDLINE/SOFTLINE DISTINCTION
The district court found that there existed a distinction between the jobs of hardline Area Supervisor and softline Area Supervisor such that the two could not be compared for purposes of the Equal Pay Act.
8. The method of ordering in the hardline departments imposes on those Area Supervisors an added responsibility which required a substantial portion of their working time.2 [Footnote 2 read: “Witness Peggy Smith, a Tallahassee hardlines supervisor testified that she spent four hours a day working on the preprint books.”]
9. The skill and responsibility required of hardline managers is substantially greater than that required of softline managers. * * * [Emphasis added.]
Fields urges on appeal that we not only adopt the district court’s findings of the existence of a distinction between hardline and softline managers, but also that we expand the scope of the softlines category to include “curtains and domestics.” On cross appeal, the Secretary urges that the distinctions between hardline and softline managers’ jobs are so minimal as to require their being considered equal for the purposes of the Equal Pay Act.
We begin by noting that the Findings of Fact numbered 8 and 9, and 22 are so conclusory in nature as to preclude the necessity of our applying the “clearly erroneous” standard of Rule 52 (a), F.R.Civ.P., on review. Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Shultz v. Wheaton Glass Co., 3 Cir. 1970, 421 F.2d 259, 267. In this situation we are required to consider only whether the findings are correct in the light of the provisions of the Equal Pay Act, the regulations thereunder, and prior decisions.
We noted in Hodgson v. Brookhaven General Hospital, 5 Cir. 1970, 436 F.2d 719, 722, that the Secretary of Labor has the burden of proving “equality of work and inequality of pay.” In meeting this burden, the Secretary is, however, required only to show that the jobs under consideration are “substantially equal,” Hodgson v. Fairmont Supply Co., 4 Cir. 1972, 454 F.2d 490, 493. We think the Secretary met his burden in the instant case. He showed that the Area Supervisors in both hardline and soft-line departments were responsible for ordering merchandise, for assisting customers with their purchases, and for maintaining orderly and properly displayed racks of merchandise in their respective departments. This showed that the jobs were “substantially equal.”
The principal factor involved in the district court’s decision that the hardline and softline managers’ jobs were unequal was the different method of ordering replacement merchandise prevailing in the two types of departments. Considered in the light of the tripartite test of substantial job equality, it cannot be said that the two methods differed in terms of skill involved. The record is • unsatisfactory as to the existence of a possible ground for sustaining a blanket distinction between hardlines and soft-lines based on either effort or responsibility.
The regulations promulgated by the Department of Labor under the E.P.A. state that “skill includes consideration of such factors as experience, training, education, and ability . . .”29 C.F.R. § 800.125. The evidence indicates no additional requirements for the position of hardline manager based on any of these factors. Indeed, the evidence as to training was precisely to the contrary: the softline managers received more extensive training in terms of time spent in the training program. Thus, we overturn the finding by the district court that the job of hardline manager required more skill than that of softline manager. Such a finding is without support in this record.
Because the findings of fact permit no conclusion on oúr part as to the elements of responsibility and effort involved in the different managerial positions, we remand for further findings on these two points. Our concern in this area of job equality between the two kinds of Area Supervisors is primarily with the sweeping nature of the district court's finding of job inequality and the meager support in the findings of fact for such a pronouncement. The district court found for example that the method of ordering in the hardline departments consumed a substantial portion of the working hours of the hardline managers. In support of this finding the court cited the fact that the manager of one of the hardline departments in one of the Fields’ stores spent four hours a day reordering for her department.
V. WILFUL OR NON-WILFUL VIOLATION?
The district court decided as a matter of law that Fields’ violations of the Equal Pay Act were not wilful for the purpose of the Portal-to-Portal Act’s three-year statute of limitations on claims for minimum wages and overtime due. 29 U.S.C., § 255(a). The determination was rather that the discrimination found was merely the unintended result of Fields’ practice of hiring persons at whatever wage it could. The Secretary urges on cross-appeal that the district court’s finding on the question of wilfulness is contrary to our holding in Coleman v. Jiffy June Farms, Inc., 5 Cir. 1970, 458 F.2d 1139, rendered some five months after the findings and conclusions were entered in the instant case.
In Jiffy June Farms, we considered a violation of the Fair Labor Standards Act occurring within the context of a collective bargaining agreement in which the employees had agreed to exempt themselves from FLSA provisions in exchange for a raise in pay. The record there disclosed in addition that the employer had sought and secured advice of counsel that this arrangement would in fact exempt the employees from the FLSA. Judge Wisdom, speaking for the court, proposed the following as the test of wilfulness to be applied in cases concerned with civil liability for violations of the FLSA: “Stated most simply, we think the test should be: Did the employer know the FLSA was in the picture?” Id. at 1142. Judge Wisdom stated: “The entire legislative history of the 1966 amendments of the FLSA indicates a liberalizing intention on the part of Congress. Requiring employers to have more than awareness of the possible applicability of the FLSA would be inconsistent with that intent.” Id.
In the instant case, the record discloses that Fields’ central office sent memoranda to its district managers and store managers advising them of the implementation of the E.P.A., and of the requirements of the Act. In addition, Fields’ regional personnel managers were under instructions to make periodic examinations of the personnel files of the Fields stores and to report any possible violations of the E.P.A. to the New York office. This was sufficient to establish that Fields knew “that the FLSA was in the picture.” In defense of the district court finding Fields argues that the random pattern of wage discrimination together with the cessation of per se violations of the Act prior to trial indicates that the violations were negligent and not wilful. We apply the test as enunciated in Jiffy June Farms, supra, as the correct test. To allow exceptions for “random” discrimination or in situations where an employer, once charged with violating the Act, corrects the unlawful practice, would sap much of the E.P.A.’s vitality. Such a construction would create unnecessary problems for future courts attempting to construe the Act. We determine that the district court erred in finding that Fields’ violations were not wilful for the purposes of the Portal-to-Portal Act’s three-year statute
VI. THE CHAIN-WIDE INJUNCTION
The district court by its decree enjoined Fields from violating the provisions of the Equal Pay Act “in any of its stores now in operation and hereafter operated by it . . . ” Fields here challenges the issuance of a chain-wide injunction on the facts of the instant case, and urges that the injunction be modified. In support of the district court’s injunction the Secretary points out that the violations in the instant case occurred in the context of close centralized supervision over wage scales and pay policies in the individual stores, and urges that a chain-wide injunction was appropriate to restrain what had apparently been a company policy regarding hiring and setting of wage scales.
We start with the rubric that the granting of injunctive relief in FLSA suits is a matter within the sound discretion of the district judge. We will not overturn or modify an injunction in such suits without a showing of clear abuse of that discretion. In determining the existence vel non of an abuse of discretion it is necessary to examine policies underlying the FLSA and the purposes served by injunctions in suits under the FLSA. Wirtz v. Ocala Gas Co., 5 Cir. 1964, 336 F.2d 236, 240.
See Goldberg v. Cockrell, 5 Cir. 1962, 303 F.2d 811, 814, where we considered the role of the injunction in the context of the FLSA:
“Issuance of an injunction in cases such as- these does not subject an employer to any penalty for his past violations of the law. It merely says: in the future do what the law requires you to do. The injunction shifts the responsibility for compliance onto the employer’s shoulders. * * * The Wage and Hour Division cannot reasonably be charged with the responsibility of checking back on past violators to make sure that they are obeying the laws. Fairness and economy of administrative effort both dictate that after an employer has once violated the Act he should bear his own responsibility for the future.”10
In Wirtz v. Ocala Gas Co., supra, 336 F.2d at 240, we noted further:
“Inasmuch as [the injunctions] are a means of effecting general compliance with national policy expressed by Congress, they are to be utilized in the light of the purposes of the Act, in aid of the administrative efforts at enforcement, and not grudgingly.”
See further our statement in Hodgson v. First Federal Savings and Loan Ass’n, 5 Cir. 1972, 455 F.2d 818, 826, that “courts should not be loath to issue injunctions of general applicability.” We review the context in which the injunction in the instant case issued in the light of these principles.
Fields, as stated, has more than sixty stores in its chain. Evidence introduced at trial indicated that Fields’ hiring and wage policies were subject to centralized control of a significant degree. It was hardly an abuse of discretion in these circumstances for the district court to enjoin Fields as a corporate defendant rather than to enter a limited injunction against the individual stores found to be in violation of the Equal Pay Act. It would frustrate the
“These FLSA injunctions are not excessively burdensome as this Court has pointed out heretofore. They subject the defendants to no penalty or hardship. They require no more than that the defendants comply with the law. [Citation omitted] Their aim is remedial and not punitive. * * * ”
We find that the issuance of a chain-wide injunction in this ease was not an abuse of discretion, and affirm the district court on this point.
The language of the injunction was overly broad in this one respect: the district court framed its injunction in terms that apply not merely to the class of employees involved in the instant litigation, the Area Supervisors, but as well to all Fields’ employees. There was no proof of discrimination in classes of employees other than Area Supervisors, and accordingly we direct that the terms of the injunction be modified to limit its applicability to this class of employees. The language contained in the injunction against further violations of the Equal Pay Act should be modified by substituting the term “Area Supervisor” for the term “employee(s)”. Cf. Hodgson v. Corning Glass Works, 2 Cir. 1973, 474 F.2d 226, cert. granted, — U.S. -, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973).
Affirmed in part, reversed in part, modified in part, and remanded for further consideration.
. 29 U.S.O., § 206(d).
. Under the provisions of 29 U.S.C., § 206(d) (3) amounts owing to employees as a result of violations of the Equal Pay Act are denominated “unpaid minimum wages or unpaid overtime compensation.”
. Section 6(d) of the FLSA, Title 29, U.S.C., § 206(d), provides, in pertinent part:
(d) (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, * * *.
Section 15(a)(2) of the FLSA, Title 29, U.S.C., § 215(a)(2), provides in pertinent part:
(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person—
(2) to violate any of the provisions of section 206 or section 207 of this title, or any of the provisions of any regulation or order of the Administrator issued under section 214 of this title; * * *.
. Hodgson v. J. M. Fields, M.D.Fla.1971, 335 F.Supp. 731, 732-733, Findings of Fact Nos. 10-20.
. Id. Findings of Fact Nos. 8, 9, and 22.
. Id. at 733, Conclusion of Law No. 2.
. Id. Conclusion of Law No. 4.
. Id. Finding of Fact No. 22.
. Finding of Fact No. 8 and Note 2 thereto, text, supra.
. This approach was justified by this state-meat in the opinion:
“ * * * Unlike most statutes regulating conduct, the Fair Labor Standards Act does not carry any immediate sanetion. In effect it gives each employer one free offense: on proof of violation he is liable at most for repayment of the wages that he originally should have paid his employees, to the extent that the unpaid wages can be proven. This rule may be justified on the basis of avoiding punishment of those who are ignorant of the law or do not believe that it applies to them; but no law can be effectively enforced if individuals are allowed to make repeated violations of it with impunity. One unexplained offense is enough.” 303 F.2d at 814.
Rehearing
ON PETITIONS FOR REHEARING AND PETITION FOR REHEARING EN BANC
The motion of the Secretary of Labor to strike the last paragraph of the Court's opinion of November 16, 1973, is not passed upon.
The Secretary of Labor’s alternative petition for rehearing is granted to the extent that the last paragraph of the body of the printed slip opinion, page 16, commencing with the words “The language of the injunction * * * ” and ending with the words “ * * * Cf. Hodgson v. Corning Glass Works, 2 Cir. 1973, 474 F.2d 226.” is withdrawn in its entirety, and said petition is otherwise denied.
The petition for rehearing of J. M. Fields, Inc. is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition for rehearing en banc is denied.
