Jacksonville Paper Co. v. McComb, 11999.
Citation | 167 F.2d 448 |
Decision Date | 23 March 1948 |
Docket Number | No. 11999.,11999. |
Parties | JACKSONVILLE PAPER CO. et al. v. McCOMB. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Louis Kurz, of Jacksonville, Fla., for appellants and cross-appellees.
Bessie Margolin, Asst. Sol., Dept. of Labor, and Morton Liftin, Chief, Appellate Section, Dept, of Labor, both of Washington, D. C., Geo. A. Downing, Sr. Atty., Dept. of Labor, and James H. Shelton, Sr. Atty., Dept. of Labor, both of Atlanta, Ga., for appellee and cross-appellant.
Before SIBLEY and LEE, Circuit Judges, and COX, District Judge.
The appellants are individuals who conduct a manufacturing business and Jacksonville Paper Company, a corporation owned by the individuals, which buys their products and other goods and sells them through a main office and warehouse at Jacksonville, Florida, and through thirteen branch offices and warehouses at other points in Florida, Georgia and Alabama. They at first considered that their several businesses were intrastate and that none of their hundreds of employees were under the Fair Labor Standards Act, 29 U.S.C.A. § 201, and following, and did not attempt to conform to it. The Administrator, thinking otherwise, sued for and obtained an injunctive decree on Aug. 29, 1941, which in general terms required observance of the Act by the individuals, and by the Jacksonville Paper Company as to its employees at Jacksonville and at six of the branches but not as to the seven other branches where it was thought no interstate commerce was done. On appeal to this court the injunction as granted was held to be too broad in its terms, and erroneous in excluding the seven exempted branch offices because some of the employees, who were not named or identified, were apparently engaged in interstate commerce. Fleming, Admr., v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395. On certiorari the Supreme Court amplified the transactions which would be a part of such commerce, and affirmed our remand of the cause to the District Court for further findings and decree. Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L. Ed. 460. No further evidence was taken nor findings made in the District Court, but on June 3, 1943, there was formulated an amended and modified decree which eliminated the general injunction against violating the Act in any way; and in three subdisions it enjoined the violation after the date of this decree of Sections 6, 7, 11(c) and 15 (a) (2), of the Act as to any employee, and as to certain kinds of shipments, but failed to find or forbid specifically any practice now in controversy. The Administrator on April 16, 1946, filed the present petition which, while not asserting any general failure to comply with the Act, asserted that as to several specific practices and as to thirteen named employees the above mentioned Sections of the Act, and therefore the injunctions, were being violated, and stated the grounds on which the defendants claimed that what they were doing was not in violation of the Act; and it prayed that the defendants be adjudged in contempt and be required to pay the unpaid wages due the affected employees as a vindication of the Administrator's right and a purge of the contempt.
After a full hearing the District Judge rendered an opinion in which he held that the practices attacked were not according to the Act, but the violations were not wilful, and none of them had been specifically considered and condemned by previous findings or decrees of the court, and that there was therefore no contempt of the injunctions in them; but that the practices ought to be stopped and to that end he would treat the proceeding as one to enlarge the injunction and prohibit the practices for the future. He decreed accordingly, enjoining one by one the practices he had found not in accord with the Act. The defendants have appealed, asserting error in condemning six of their practices. The Administrator has appealed, specifying as errors the refusal to adjudicate defendants in civil contempt and the refusal to require full compliance with the injunctions from their date.
We consider first the six assignments of appellants. Those relating to particular employees involve their exemption under Sect. 13(a), 29 U.S.C.A. § 213(a), as administrative and executive employees, or the question whether their work, mostly intrastate commerce, commingled to a substantial extent also interstate commerce. Their classification depends on questions of fact, and the conclusions of the District Court are not clearly erroneous. Two employees, in charge of what are contended to be separate departments, make a close case, but we do not think there is clear error as to them.
The corporation had a bonus plan used since May, 1942, whereby the directors at the end of the year had declared a bonus to some classes of employees based on a percentage of their total pay the preceding year, for which each was issued a note; but not payable at once and unconditionally, but in twelve...
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...At 189--190, 69 S.Ct. 497. The identity of the parties is apparent from the decision in the Court of Appeals. Jacksonville Paper Co. v. McComb, 167 F.2d 448 (5th Cir.), cert. granted sub nom. McComb v. Jacksonville Paper Co., 335 U.S. 809, 69 S.Ct. 38, 93 L.Ed. 365.3 See, respectively, Lust......
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