McComb v. Frank Scerbo & Sons, No. 235

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, , and CLARK and FRANK, Circuit
Citation177 F.2d 137
PartiesMcCOMB v. FRANK SCERBO & SONS, Inc. et al.
Docket NumberNo. 235,Docket 21295.
Decision Date18 August 1949

177 F.2d 137 (1949)

McCOMB
v.
FRANK SCERBO & SONS, Inc. et al.

No. 235, Docket 21295.

United States Court of Appeals Second Circuit.

Argued June 7, 1949.

Decided August 18, 1949.


Leo Guzik, of New York City (Martin N. Whyman, of New York City, on the brief), for defendants-appellants.

Bessie Margolin, Asst. Sol., of Washington, D. C., U. S. Dept. of Labor (William S. Tyson, Sol., William A. Lowe and E. Gerald Lamboley, Attys., of Washington, D. C., and John A. Hughes, Regional Atty., of New York City, U. S. Dept. of Labor, on the brief), for plaintiff-appellee.

Before L. HAND, Chief Judge, and CLARK and FRANK, Circuit Judges.

CLARK, Circuit Judge.

Defendants' appeal from the judgment granted the Wage and Hour Administrator in his action under the Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq., raises the single issue whether the Administrator can obtain not only injunctive relief, but also an order compelling the payment of unpaid overtime wages to employees thereto entitled under the Act. In the court below, defendants, manufacturers of office furniture in New York City, consented to the issuance of a permanent injunction restraining them from further violations of the Act, and specifically from failure to pay overtime compensation for work in excess of forty hours per week, 29 U.S.C.A. § 215(a) (2), and from failure to keep proper records, 29 U.S.C.A. § 215(a) (5). They contested, and now appeal from, only that portion of the decree which provides "that the defendants pay to their employees

177 F.2d 138
the amounts set forth in the appendices to the stipulation of June 30, 1948 i.e., the schedules of "Back Wages Due Employees", representing the difference between the amounts of wages actually paid to each such employee respectively and the amounts each such employee should have been paid respectively had he been compensated in accordance with the provisions of Section 7 of the Act 29 U.S.C.A. § 207."

Defendants argue that the jurisdiction of the district court, under § 17 of the Act, 29 U.S.C.A. § 217, "to restrain violations of section 215 of this title," is impliedly limited by § 16(b), 29 U.S.C.A. § 216(b), which provides for employee actions to recover unpaid overtime and "an additional equal amount as liquidated damages." The remedy under § 15 is, in their view, an exclusive one. Thus of necessity it would abridge the traditional power of an equity court, once it has acquired jurisdiction in the premises, to grant full relief, including restitution or reparation where appropriate. Alexander v. Hillman, 296 U.S. 222, 56 S. Ct. 204, 80 L.Ed. 192; Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332.

But our court has already held, in Walling v. O'Grady, 2 Cir., 146 F.2d 422, 423, that a decree enjoining violations of § 15(a) (3) of the Act, 29 U.S.C.A. § 215(a) (3), which forbids discriminatory discharges of employees who sue for unpaid compensation, might include a provision reimbursing employees for loss of pay resulting from the discharges. Defendants attempt to distinguish the O'Grady case because the individual employee's right to sue for back pay lost by a discriminatory discharge is not explicit in the Act. We do not agree that the case is distinguishable, however, since our brethren said there: "The possession by the employee of a right to sue for back pay does not preclude a right of the Administrator. The latter represents not merely the employee but asserts a public interest which is promoted by requiring back pay as well as reinstatement." Walling v. O'Grady, supra, 146 F.2d at page 423. And they cited the concurring opinion of Judge Woodrough in Walling v. Miller, 8 Cir., 138 F.2d 629, 633, certiorari denied Miller v. Walling, 321 U.S. 784, 64 S.Ct. 781, 88 L.Ed. 1076, dealing with back pay for which the employee can sue. The burden of Judge Woodrough's argument is that "As to such individual employees on whom the Act confers a right of action for deficiency in wages, there can be no doubt that the remedies provided for them by the Act are exclusive and controlling in any suits they bring. It creates their private right and defines and limits it. But the Administrator properly and exclusively represents the public interest. In that interest he invokes the power vested in the courts to compel obedience to the law by injunctional process. I see no good reason why the courts should not award him their mandatory injunctional order on proof of present unlawful withholding of minimum wages from those to whom the law says they must be paid, as well as an injunction against violations threatened to be committed in the future." Ibid. They also cited Fleming v. Alderman, D.C.Conn., 51 F.Supp. 800, a case where Judge Hincks suggested that failure to pay compensation due under the Act is a continuing offense, and payment of back wages can therefore be decreed as directive injunctive relief.

The basic ground for the O'Grady decision is to be found in the assertion, 146 F.2d at page 423, that "We can see little difference between giving reparation to an employee for loss of wages as ancillary to injunctive relief against withholding employment and giving back pay where an injunction for reinstatement has been violated as the court did in Texas & N. O. R. Co. v. Brotherhood of Ry. & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034." We are in accord with this ruling and with the grounds upon which it was placed, and indeed believe that it has received further confirmation in the recent decision in McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, authorizing a contempt order to require payment of unpaid compensation under the Act. True, the Supreme Court formally disavowed any intention of deciding the instant issue when it said: "We can lay to one side the question whether the Administrator, when suing to restrain violations of the...

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  • Reich v. Tiller Helicopter Services, Inc., No. 92,7368
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 1993
    ...requiring payment of back wages in actions brought by the Secretary under § 217. See, e.g., McComb v. Frank Scerbo & Sons, Inc., 177 F.2d 137 (2d In response to such cases, Congress amended § 217 to expressly prohibit courts from awarding back wages, unpaid overtime compensation, and liquid......
  • State v. First Nat. Bank of Anchorage, Nos. 5006
    • United States
    • Supreme Court of Alaska (US)
    • December 3, 1982
    ...(1946); Securities and Exchange Comm'n v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1307-08 (2d Cir.1971); McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-39 (2d Cir.1949). See also Interstate Commerce Comm'n v. B & T Transportation Co., 613 F.2d 1182, 1184-85 (1st Cir.1980). But see United S......
  • E.E.O.C. v. Gilbarco, Inc. ., No. 78-1661
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 9, 1980
    ...others held that it did." Wirtz v. Robert E. Bob Adair, Inc., 224 F.Supp. 750, 754 (W.D.Ark.1963). In McComb v. Frank Scerbo & Sons, Inc., 177 F.2d 137 (2d Cir. 1949), it was held that a district court, under § 17, when granting injunctive relief against further violations of the FLSA could......
  • Donovan v. Brown Equipment and Service Tools, Inc., No. 80-1708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 21, 1982
    ...jurisdiction, conferring power to afford full relief, including restitution or reparation if appropriate. McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-39 (2d Cir. 1949) (reimbursement of unpaid overtime wages); Walling v. O'Grady, 146 F.2d 422, 423 (2d Cir. 1944) (reparations for wages ......
  • Request a trial to view additional results
30 cases
  • Reich v. Tiller Helicopter Services, Inc., No. 92,7368
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 1993
    ...requiring payment of back wages in actions brought by the Secretary under § 217. See, e.g., McComb v. Frank Scerbo & Sons, Inc., 177 F.2d 137 (2d In response to such cases, Congress amended § 217 to expressly prohibit courts from awarding back wages, unpaid overtime compensation, and liquid......
  • State v. First Nat. Bank of Anchorage, Nos. 5006
    • United States
    • Supreme Court of Alaska (US)
    • December 3, 1982
    ...(1946); Securities and Exchange Comm'n v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1307-08 (2d Cir.1971); McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-39 (2d Cir.1949). See also Interstate Commerce Comm'n v. B & T Transportation Co., 613 F.2d 1182, 1184-85 (1st Cir.1980). But see United S......
  • E.E.O.C. v. Gilbarco, Inc. ., No. 78-1661
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 9, 1980
    ...others held that it did." Wirtz v. Robert E. Bob Adair, Inc., 224 F.Supp. 750, 754 (W.D.Ark.1963). In McComb v. Frank Scerbo & Sons, Inc., 177 F.2d 137 (2d Cir. 1949), it was held that a district court, under § 17, when granting injunctive relief against further violations of the FLSA could......
  • Donovan v. Brown Equipment and Service Tools, Inc., No. 80-1708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 21, 1982
    ...jurisdiction, conferring power to afford full relief, including restitution or reparation if appropriate. McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-39 (2d Cir. 1949) (reimbursement of unpaid overtime wages); Walling v. O'Grady, 146 F.2d 422, 423 (2d Cir. 1944) (reparations for wages ......
  • Request a trial to view additional results

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