Shultz v. Hinojosa
| Citation | 432 F.2d 259 |
| Decision Date | 29 July 1970 |
| Docket Number | No. 28475.,28475. |
| Parties | George P. SHULTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Salvador M. HINOJOSA, Individually and d/b/a H & H Meat Products Company, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, Atlanta, Ga., Truett E. Bean, Trial Atty., U. S. Dept. of Labor, Dallas, Tex., Laurence H. Silberman, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Carin Ann Clauss, Sylvia S. Ellison, Helen W. Judd, Attys., U. S. Dept. of Labor, Washington, D. C., Major J. Parmenter, Regional Solicitor, for plaintiff-appellant.
Moises Vicente Vela, Harlingen, Tex., for defendant-appellee.
Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.
The Secretary of Labor appeals from a judgment, based on violations of the Fair Labor Standards Act, 29 U.S.C.A. 201, et seq., because of the trial court's failure to find additional violations of child labor, minimum wage and record keeping provisions of the Act, and because the trial court, although finding 23 violations, declined to enter the injunction sought by the Secretary.
We have carefully read the read the record and find that without exception the relief sued for by the Secretary is demanded by the undisputed evidence in the record, and conclude that the experienced trial court failed to note the strong thrust of the decisions of this court that, when repeated violations have occurred before the current suit was commenced, and the present violations are plain, and deal with easily understandable matters (such as minimum wages and record keeping requirements), an injunction is also legally demanded.
We, therefore, affirm that part of the judgment awarding overtime pay to the twenty-three persons, but reverse for further proceedings as to the wage entitlements for the remaining eleven persons on whose behalf the Secretary sued and for the entry of an injunction as prayed.
This is the third time this employer has been proceeded against by the Secretary. He was first convicted on a plea of nolo contendere under the Act's criminal provisions for violating its overtime and record keeping requirements.1
The second action was a civil complaint under Section 216(c) (). This resulted in a consent decree awarding overtime and back wages.
The present action was brought alleging violations as to 34 workers — 22 students at substandard pay, four janitors or cleanup men, four butchers and the wife and young daughters of one of the cleanup men.
The trial court found that although Hinojosa hired the students at least partially from altruistic motives, saying that they did not supplant other labor by their being employed,2 there was a violation of the wage requirements as to all of the students (some worked for as little as fifty cents an hour) and awarded back pay for them.
The trial court also found that although no records were kept for the janitor Hernandez, "I find that this employee did work at least 40 hours per week * * *" (Emphasis added.) As to another employee whom the court characterized as "a moronic type of employee, whose testimony, even under the painstaking questioning of this court, could not render much assistance towards any findings of the hours worked or duties performed," the court stated that as a favor to him, defendant hired him at $25 a week to clean the corrals. Nevertheless, the appendix submitted to this court, which is all we have to proceed on, contained the following questions and answers of this employee, Manuel Rodriguez Guerrera:
Then on cross examination, the court asked:
Guerrera later testified that he cut the grass and cleaned around the corrals and picked up and stacked pieces of lumber.
It is conceded that Hinojosa kept no records for this man's work. The failure to keep records cast the burden on the defendant to disprove the testimony just quoted that he worked all day and received the sum of $25 per week. The fact that the employee was of slight intelligence did not justify the failure to keep records as to the time he spent performing his duties. No witness on the part of management supplied any information as to the number of hours worked by Guerrera. Thus there was no evidence or other factual basis for the court's determination that "this work could not possibly have taken more than three hours per day at the most." The court thus denied any relief as to Guerrera.
The court denied all other relief with respect to the other alleged infractions.
Principally, the other items of concern were the work done by two cleanup men who washed down the killing room each evening, Monday through Friday. Rodriguez Jiminez was regularly employed in the killing room, and then at the end of the workday he undertook for a period from November 3, 1967, to December 15, 1967, to clean the killing room at $10 per day. Jiminez told of the arrangement in the following language:
He has already said at least one time all he did was wash, then he started killing and washing. He already said that.
Did you get paid extra for that?
And how long did it take you to wash down the place?
On an average?
* * * * * *
Cross Examination.
* * * * * *
The court dealt with the Jiminez case in the following manner:
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