Goldberg v. Kickapoo Prairie Broadcasting Co.
| Decision Date | 05 April 1961 |
| Docket Number | No. 16540,16541.,16540 |
| Citation | 288 F.2d 778 |
| Parties | Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. KICKAPOO PRAIRIE BROADCASTING CO., Inc., a Corporation, and KLRS Broadcasting Co., a Corporation, Appellees. Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. KICKAPOO PRAIRIE BROADCASTING CO., Inc., a Corporation, and Roger H. Taylor, Neosho Broadcasting Company, Inc., a Corporation, and KLRS Broadcasting Co., a Corporation, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jacob I. Karro, Deputy Asst. Sol., U. S. Dept. of Labor, and John Weiss, Atty., U. S. Dept. of Labor, Washington, D. C., for appellant; Harold C. Nystrom, Acting Sol. of Labor, Judah Best, Atty., U. S. Dept. of Labor, and B. Harper Barnes, Regional Atty., U. S. Dept. of Labor, Washington, D. C., on the brief.
B. H. Clampett, Springfield, Mo., for appellees.
Before JOHNSEN, Chief Judge, and VOGEL and BLACKMUN, Circuit Judges.
The Secretary of Labor commenced these two actions under the Fair Labor Standards Act of 1938, as amended, §§ 201-219 of Title 29 U.S.C.A.
No. 16,540 was brought to recover from the defendants Kickapoo Prairie Broadcasting Company and KLRS Broadcasting Company unpaid minimum wages and overtime compensation claimed to be due employee Hazel O. Waltman.
By No. 16,541 the Secretary sought to enjoin Kickapoo, Neosho Broadcasting Company, KLRS Broadcasting Company and Robert H. Taylor from violating the Act's compensation and record-keeping requirements, §§ 15(a) (2) and 15(a) (5). The cases were consolidated for purposes of trial.
It was conceded that the Act was applicable and that the defendants' employees were covered. The defendants denied the violations. The trial court in No. 16,541, while finding "daily irregularities and minor inaccuracies" which constitute "a technical violation of the Act", and that "violations existed, but the overall impression is that they were innocent violations" denied the injunction. In No. 16,540 the trial court found the testimony sharply disputed, that plaintiff "failed to sustain the burden of persuasion" and denied recovery. 182 F. Supp. 578, 584.
In appealing the Secretary contends (1) that the trial court's denial of the injunction exceeded its discretion since defendants failed to make corrections after they had been warned about their fictitious time records, and (2) that the court erred in not approximating the compensation due employee Waltman under the principles of Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, rehearing denied, 329 U.S. 822, 67 S.Ct. 25, 91 L.Ed. 699, claiming the evidence established that she performed work not reported and for which she was not paid.
During the period of alleged violations, March 3, 1956, to March 7, 1958, Kickapoo owned and operated two radio stations, KICK at Springfield, Missouri, and KLRS at Mountain Grove, Missouri. Kickapoo's principal office was located at Springfield. Neosho was engaged in radio broadcasting at Neosho, Missouri, under the call letters KBTN. In November or December, 1958, subsequent to the filing of these actions, Kickapoo sold radio station KLRS at Mountain Grove to the newly-formed KLRS Broadcasting Company, a corporation. All three corporations, Kickapoo, Neosho and KLRS, were owned by defendant Taylor and two other individuals. During a pre-trial conference held on March 17, 1959, it was disclosed that Neosho had been sold to a third party and that the sale was with the F.C.C.'s approval. Taylor was the owner of one-third of the stock of Kickapoo and KLRS. He also owned stock of Neosho and was secretary-treasurer of the three corporations.
In the latter part of 1956 Taylor assumed general control of the payroll practices at Neosho, Mountain Grove (KLRS) and Springfield (KICK), a position maintained by him thereafter.
The payroll record-keeping practices for the three stations were essentially the same. For a short time during the period involved time clocks were used but after protests and objections on the part of various employees, the time clocks were removed. Thereafter a system was instituted by which each employee was supposed to keep track of and make out his own time records. Such records consisted of time sheets which were mimeographed so as to show the days of the week and the time worked each day. Each employee was supposed to fill in the on and off time, total the number of hours for each day and show total hours worked at the end of each week. There was a place for computation of wages and certification as to the correctness of times worked to be signed by the employee. After each weekly time sheet was filled out and signed by the employee, it was delivered to the local station manager, who himself certified as to the accuracy of times worked. The time sheets were then forwarded to the Springfield office where checks were prepared. Finally, the checks with the time information were sent to Mr. Taylor's office for his approval and signature.
There was testimony that hours were typed out on cards for the employees to see when they made out their weekly time sheets. They either copied them off the card or a typist typed them in for them.
It was the contention of the Secretary, and substantial testimony by many employees sustained his contention, that the violations followed a regular pattern; that employees were required to report a scheduled number of hours each week, when in fact their hours exceeded the hours reported so that many times they were not paid time and a half for the periods exceeding 40 hours weekly.
It was the contention of the defendants, supported by the testimony of the defendant Taylor and some of the local managers, that the stations were organized so that they could be operated on a basis of 40 hours weekly for the employees; that except in an emergency they wanted overtime kept to a minimum; that no employee worked overtime for which he was not compensated; that the employees made out the weekly time sheets themselves, certifying as to correctness; that they were accurate and that payment was made in accordance with the information contained thereon.
While, as indicated, there was much disputed testimony, by far the greater weight thereof, as well as substantial uncontradicted testimony, showed violations of the Act. At Neosho the weekly time records for employee Tertzakian show almost without variation that he worked exactly 6 hours and 57 minutes each day Monday through Friday and 5 hours and 15 minutes on Saturday and that these figures add up to exactly 40 hours per week. When a variation did exist, the hours and minutes would, in most instances, still total exactly 40 hours per week. Tertzakian testified without specific contradiction that he was instructed to show only 40 hours on the time sheets, although in actual fact his work week was variable and averaged between 53 and 55 hours; that instructions came from the owners of the station to put only 40 hours on the weekly time sheets. Tertzakian claimed the local manager threatened him with immediate discharge if he did not comply with his wishes regarding the reporting of only 40 hours weekly. On occasions he signed time sheets in blank. Mrs. Betty Johnson, the secretary-bookkeeper, testified that she sometimes filled these in on instructions from the local manager, Morrison, in accordance with a schedule that Morrison had fixed up for them "to go by". Mrs. Johnson further testified that as to herself she was instructed by the local manager to record no more than 45 hours of work per week on her own time sheets, although she regularly worked 3 to 5 hours additional each week; that she did this to hold her job; that she was told not to turn in any overtime over and above what they were allowed; that if she did put down the additional overtime the local manager would make her re-do the time sheet; that she at first did not report this to the Wage and Hour investigator because she was afraid of losing her job. Evidence regarding the operation of KLRS at Mountain Grove was similar.
The weekly time sheets with reference to employee John Prickett at Neosho establish obvious violations. For each week, excepting one, there were two time sheets, the first covering Sunday through Friday, inclusive, with a total of 40 hours. The second, covering Saturday, showed 8 hours worked. For the first 40 hours he was paid at the rate of $1.00 per hour. For the 8 hours overtime on Saturday he was paid but $1.25 per hour, whereas, of course, the overtime pay should have been at the rate of $1.50 per hour. For the week ending July 27, 1957, the same thing occurred, with an underpayment for overtime. In signing and certifying as to the correctness of such particular time records, the local manager, Morrison, added on one time sheet the following note for the Springfield office:
(Emphasis supplied.)
Thereafter, with one exception, the weekly time sheets continue to show 40 hours worked Sunday through Friday and 8 hours on Saturday with payment at the rate of $1.00 per hour for the first 40 hours and $1.25 for the overtime. Accordingly, these time sheets show continuous underpayment for overtime worked and also establish that if Prickett was putting in close to 60 hours weekly as stated by the local manager, he was working 20 hours overtime instead of 8, that he should have received time and a half for the overtime or a weekly wage of $70.00 instead of the $50.00 indicated by the local manager and as paid according to the records.
On cross-examination Morrison, the local manager, was asked:
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