Mitchell v. Helena Wholesale, Inc., Civ. A. No. 512.

• Decision Date: 13 May 1958
• Docket Number: Civ. A. No. 512.
• Citation: 163 F. Supp. 101
• Parties: James P. MITCHELL, Secretary of Labor, Plaintiff, v. HELENA WHOLESALE, INC., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

163 F. Supp. 101

James P. MITCHELL, Secretary of Labor, Plaintiff, v. HELENA WHOLESALE, INC., Defendant.

Civ. A. No. 512.

United States District Court E. D. Arkansas, E. D.

May 13, 1958.

Stuart Rothman, Solicitor, U. S. Dept. of Labor, Washington, D. C., Earl Street, Regional Atty., U. S. Dept. of Labor, Dallas, Tex., and Truett E. Bean, Trial Atty., U. S. Dept. of Labor, Dallas, Tex., for plaintiff-respondent.

Talley & Owen, Wayne W. Owen, Little Rock, Ark., for defendant-petitioner.

LEMLEY, District Judge.

This cause having been tried to the Court on the motion of the defendant, Helena Wholesale, Inc., to dissolve the injunction entered by this Court on October 2, 1954 under the terms of which the defendant was enjoined and restrained from violating the overtime compensation and record keeping provisions of the Fair Labor Standards Act of 1938, as amended (29 U.S.C.A. §§ 207 and 211(c), which motion is resisted by the plaintiff, and the Court having considered the pleadings in the case, the briefs of the parties, a stipulation entered into by counsel on both sides and filed in open court, the testimony produced by the defendant, and oral argument, and being well and fully advised, doth file this memorandum opinion incorporating herein its findings of fact and conclusions of law with respect to said motion.

In entering the injunction the Court found as a fact that the defendant was subject to the Act, and had been in violation thereof and should be enjoined, but further found: "* * * that while an injunction should be issued as prayed for in the complaint * * *, said injunctive decree should provide that after said injunction has remained in full force and effect for a period of one year, the defendant may apply for relief therefrom if it is convinced that it is in full compliance with the Act and believes that it is entitled to be so relieved, and upon the filing of such application the Court will, with full and ample notice to the plaintiff herein, hold a hearing thereon." And the Court concluded that an injunction should be issued in accordance with the prayer of the complaint, subject to the proviso above quoted, which proviso was incorporated into the decree.

The motion now under consideration was not filed until more than two years after the rendition of the decree, and it alleges that the defendant has been in full compliance with the Act since the injunction was issued, and prays that said injunction be dissolved; and the stipulation above referred to recites that an investigation of the defendant's business by a representative of the plaintiff, conducted in February, 1957, subsequent to the filing of the instant motion, revealed that the defendant had been substantially complying with the Act since the entry of the injunction, except that as of February, 1957 it had failed to keep any record of the number of hours worked each day and each workweek by its shop foreman, and that as of the same time many of its employees were keeping their own time records and were customarily compiling those records at the end of the workweek, rather than concurrently with the days worked. In the course of the hearing on the motion counsel for the plaintiff candidly stated that the violations that were found to exist in February, 1957 were not sufficiently serious to have prompted the Secretary to commence an independent action in the first instance.

The only witness who testified at said hearing was Mr. David Stroud, the Secretary-Treasurer of the defendant company. He testified that since the injunction was issued the defendant has in good faith attempted to comply with the Act, and will continue to comply with it in the future. He further testified that up until the time of the investigation above mentioned he had believed that his company was in complete compliance with the Act, and that since said investigation time records have been kept with respect to the work of the shop foreman, and that its other employees are now required to turn in their time daily instead of weekly. Mr. Stroud impressed us with his candor while testifying, and on this phase of his testimony he was not even cross-examined. In view of this testimony, which is undisputed, we find that since the entry of the injunction the defendant has substantially complied with the Act, that the violations found by the investigator to exist in February 1957 were minor and inadvertent, and have now been corrected, and that there is no reasonable ground to believe that the defendant will not remain in compliance with the Act in the future.

In resisting the motion the plaintiff contends that notwithstanding the proviso in the Court's findings and decree, and notwithstanding the defendant's subsequent substantial compliance with the Act, said decree was a "permanent injunction," and that the Court has no power to dissolve it in the absence of a showing that to continue it in force would subject the defendant to grievous hardship and would amount to a positive wrong; and he argues that no such showing has been made, and that the motion should be denied.¹ We cannot agree.

In the first place, it is not disputed that under certain circumstances and upon a proper showing being made a court of equity has inherent power to vacate or dissolve an injunction previously entered by it; and if the plaintiff is correct in his argument that the instant motion can be granted only upon such a showing as would authorize the Court to vacate the decree in the exercise of its inherent power to do so, then the proviso which we were careful to insert both in our findings and conclusions and in our decree is simply surplusage. In inserting that proviso the Court certainly did not believe that it was doing a vain thing, but, on the other hand, considered that said proviso was in the nature of a condition to the relief granted. And, while counsel for the plaintiff may not have so understood at the time, it was the Court's idea that if the defendant remained in faithful compliance with the Act for a year, and then came into court and showed such a compliance, and if it appeared that there was no reasonable likelihood of future violations, the injunction would be dissolved. As stated, the present petition was not filed until more than two years had elapsed, during which time the defendant had fully complied with the Act, except for the minor and inadvertent violations that have been mentioned, which were promptly discontinued upon being brought to the defendant's attention, and has, in our estimation, manifested a sincere disposition to comply in the future.

We have examined the decisions relied upon by the plaintiff, and heretofore cited, and we note that in none of them did the decree in question contain a proviso such as was incorporated into our decree herein,² and we likewise feel that those cases are distinguishable on other grounds. For example, in the Swift case, it appears that between 1920 when the decree was rendered and 1930 when the application for modification was made, the defendants had vigorously sought to attack the decree or to avoid its impact, and, still further, that there had been...