Goldberg v. Cockrell

• Citation: 303 F.2d 811
• Decision Date: 22 June 1962
• Docket Number: No. 18983.,18983.
• Parties: Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. Earl R. COCKRELL and Carra Bell Cockrell, doing business as Cockrell Banana Company, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

303 F.2d 811 (1962)

Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. Earl R. COCKRELL and Carra Bell Cockrell, doing business as Cockrell Banana Company, Appellees.

No. 18983.

United States Court of Appeals Fifth Circuit.

June 22, 1962.

Bessie Margolin, Morton Liftin, Asst. Solicitor, Dept. of Labor, Isabelle R. Cappello, Atty., Dept. of Labor, Washington, D. C., Charles Donahue, Solicitor of Labor, Jacob I. Karro, Attorneys, United States Department of Labor, Washington, D. C., Beverley R. Worrell, Regional Attorney, for appellant.

W. P. Mitchell, R. N. McNutt, Mitchell, McNutt & Bush, Tupelo, Miss., for appellees.

Before BROWN and WISDOM, Circuit Judges, and DE VANE, District Judge.

WISDOM, Circuit Judge.

The Secretary of Labor brought this suit to enjoin Earl R. Cockrell and Carra Bell Cockrell, doing business as the Cockrell Banana Company, from further violations of the Fair Labor Standards Act. The Secretary alleged that the defendants-appellees had violated the Act's minimum-wage, overtime, and record-keeping regulations, 29 U.S.C.A. §§ 206, 207 and 211. The district court found that the Cockrells had violated the Act but declined to issue an injunction as prayed for by the Secretary. We vacate the order below and remand the case with instructions that the injunction be issued.

The Wage and Hour Division of the Department of Labor first investigated the Cockrell Banana Company in 1953. It conducted a second investigation in February 1958 and a third in September 1958. Each time it informed the defendants that it had found violations of the minimum-wage, overtime, and record-keeping requirements of the Fair Labor Standards Act. Each time the defendants indicated that they would comply in the future. At no time have they denied that they are subject to the regulations imposed by this Act. In this proceeding the Cockrells acknowledge that their practices prior to 1958 were unlawful, but they assert that since the third investigation there have been no further violations. At that time the defendants instituted a system under which time sheets were distributed to their employees and each employee was directed to record his hours worked each day.¹ The employees signed their time sheets and turned them in each week. On the time sheet immediately preceding the space for the worker's signature was printed the statement: "I hereby certify that I have entered above the correct time worked and have received full payment as shown. I am due no back pay." Various employees testified that they filled out these sheets according to what they were being paid without any attempt to reflect the hours actually worked. Two employees stated that the reason for this practice was that they could not get paid for the hours actually worked. One employee explained that once when he had turned in a record stating his true number of hours it was "kicked back" on him. He said also that when he had been given a pay raise the number of hours which he recorded was increased, although there was no change in the number of hours he worked. One of the time sheets introduced showed daily hours adding up to 56 hours for the week, but the weekly total written in, on which the employee's pay was based, was only 52. Several employees testified that often they had worked a greater number of hours than the hours recorded without receiving any additional pay. The appellees did not dispute the accuracy of this testimony.²

On the basis of this evidence the district court concluded:

"I am convinced and find as a fact that defendants have violated the minimum wage, record keeping, and overtime provisions of the Act. And, as a matter of law, the defendants cannot escape their ownership and managerial responsibility for compliance with these provisions of the Act. However, I am not sufficiently satisfied, on the record now before the Court, that these violations have been of an intentional or wilful character such as would justify, at this time, the issuance of an injunction as prayed for in the complaint."

The court ordered the case continued for six months for the limited purpose of permitting reconsideration "solely" upon evidence of new violations which might be discovered within the six months period.

The decision whether an injunction should issue to restrain an employer from future violations of the Fair Labor Standards Act lies initially in the discretion of the district court. That discretion, however, is subject to certain firm limitations. Some of the factors to be considered are "the employer's previous actions of non-compliance or litigation, the moral and business responsibility of the employer, the extent to which promises of future compliance are something more than empty, idle words unmatched by the institution of effectual corrective procedures, or are undependable contritions under pressure of legal action, whether litigious contention is the legitimate good faith quest for legal determination or the mere pretense, for past or future actions, to thwart effective compliance." When the factors that "determine the probability of future compliance" have not been properly evaluated by the trial court, this Court will not be "slow to act by ordering the issuance of an injunction." Mitchell v. Hodges Contracting Company, 5 Cir., 1956, 238 F.2d 380, 381. In a growing line of cases in this Circuit, when an employer has committed a clear...