AH Belo Corporation v. Street

• Decision Date: 19 October 1940
• Docket Number: No. 301-Civ.,301-Civ.
• Citation: 35 F. Supp. 430
• Parties: A. H. BELO CORPORATION v. STREET, Regional Director of Wage and Hour Law, et al.
• Court: U.S. District Court — Northern District of Texas

35 F. Supp. 430

A. H. BELO CORPORATION v. STREET, Regional Director of Wage and Hour Law, et al.

No. 301-Civ.

District Court, N. D. Texas, Dallas Division.

October 19, 1940.

Gerard D. Reilly and Irving J. Levy, both of Washington, D. C., and Llewellyn B. Duke, Robert W. Richards, and George B. Searls, all of Dallas, Tex., for the motion.

Eugene P. Locke, Adair Dyer, and Maurice Purnell, all of Dallas, Tex., opposed.

ATWELL, District Judge.

The plaintiff seeks a declaratory judgment and alleges:

That it is an employer of more than two hundred persons in the publication of the Dallas Morning News, and other periodicals; that at, and for a long time prior to the effective date of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., it had been paying each of its employees, except a few office boys, as much, or more than the minimum wage prescribed by that Act; that it wished to continue such weekly payment basis as nearly as it might, and be in full conformity with the Act; that it established a basic rate for each employee at a stated amount per hour for regular time; that such basic rate was at least equal in every case to the minimum rate provided by the Act; that for overtime work, each employee was to be paid not less than time and one-half of said basic rate, and such additional amount, if any, as would be necessary to make his aggregate compensation for the work not less than a certain definite amount; that while it is not engaged in interstate commerce, and while it believes that it comes within the exceptions of the Act, Regional Director Street, defendant, claims that its arrangement is in violation of the Act, and that the basic rate of pay of each employee must be computed by dividing the guaranteed weekly sum by the hours worked, and the overtime rate of pay must be computed on such supposed basic rate, and that since plaintiff has paid the guaranteed weekly minimum sum since October 22, 1938, it has increased the basis of compensation to employees to such an extent that it is liable to pay a larger sum than it has paid, and is liable to pay a larger sum in the future.

That the said Street, in his official capacity as Regional Director, made such claims and threats of suit against it in his official capacity to compel it to alter its employment agreements and to cease its present method of compensating employees.

That the said Street also claims that he had been designated by one of the plaintiff's employees (but withheld the identity of such employee from the plaintiff) to bring a suit against the plaintiff as his representative, and as the representative of all other employees similarly situated.

The plaintiff also made parties defendant three of its employees as class representatives. Rule 23, Civil Procedure, 28 U.S.C.A. following section 723c. These have answered announcing their complete satisfaction with the plaintiff's method and their pay. The suit was filed on July 26, 1940.

On August 12, 1940, defendant Street filed this motion to dismiss. It presents two grounds: (a) The absence of an actual controversy; (b) that the highest enforcement officers, Phillip B. Fleming, Administrator of the Wage and Hour Division, and Robert H. Jackson, Attorney General of the United States, both of Washington, D. C., are not made parties.

Looking briefly at (b) first, it may be quickly conceded that the Act does not authorize Street as a Regional Director to enforce its provisions. That authority and power is given to the Administrator and to the Attorney General.

If the plaintiff's attempt struck exclusively at the provisions of the Act which rests in their hands for enforcement, it would be necessary to sustain the motion to dismiss. The Act, however, contains Section 216 (b), 29 U.S.C.A., which makes an employer liable to the employee or employees. A recovery for such liability may be maintained in any court of competent jurisdiction by one or more employees in his own behalf, or in behalf of themselves and other employees similarly situated, or an employee or employees may designate an agent or representative to maintain such action.

The plaintiff alleges that Street claims to act under the authority of and for the securing of the penalties under this section.

Such cases as Janes v. Lake Wales Citrus Growers Association, 5 Cir., 110 F. 2d 653; F. W. Maurer & Sons Company v. Andrews, D.C., 30 F Supp. 637; Redlands Foothill Groves v. Jacobs, D.C., 30 F.Supp. 995; support the reason of the motion to dismiss insofar as the administrator and the Attorney General are absent for such remedies and powers as are exclusively vested in them. But they are not authority for that portion of the action which is directed at Street as an alleged representative of an unnamed employee, and of such employees similarly situated. Suits under that section of the Act are independent of any supervision or control by the Washington authorities. The employee may conduct his own litigation. He may choose a representative to do so. His action is one at law for damages, to which actual damage is added an equal amount as liquidated damages and an...