United States v. P. & W. COAT CO.

• Decision Date: 10 December 1943
• Docket Number: Cr. No. 39377.
• Citation: 52 F. Supp. 792
• Parties: UNITED STATES v. P. & W. COAT CO., Inc., et al.
• Court: U.S. District Court — Eastern District of New York

52 F. Supp. 792

UNITED STATES v. P. & W. COAT CO., Inc., et al.

Cr. No. 39377.

District Court, E. D. New York.

December 10, 1943.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N.Y., (John K. Carroll, James V. Altieri, and John P. Cawley, all of New York City, of counsel), for the United States.

Sol. I. Smithline, of Brooklyn, N.Y., (Max Ehrlich, of New York City, of counsel), for respondents.

GALSTON, District Judge.

L. Metcalfe Walling, Administrator of the Wage and Hour Division, filed a petition to have a prosecution for criminal contempt instituted against the above named respondents. It appears from the petition that the Administrator had instituted a civil action in this court to restrain the P. & W. Coat Company, Inc., its officers and agents, from violating certain provisions of the Fair Labor Standards Act of 1938, Title 29 U.S.C.A. § 201 et seq. Thereafter on April 15, 1942, a final judgment by consent was entered in the action, restraining the company, its officers and agents from violating any provisions of the Act, or paying its employees wages at less than 40¢ an hour; or employing any of its employees for work weeks longer than 40 hours without compensating such employees for their employment in excess of 40 hours at rates less than one and a half times their regular rates of pay; from failing to keep records of persons employed by it and of the wages, hours and other conditions of employment as prescribed by the regulations as amended by the Administrator of the Wage and Hour Division; and from making false or inaccurate entries in records or reports.

The petition then alleges that subsequent to the date of the entry of the judgment, the respondents failed to comply with the judgment and have violated its terms; that such acts constitute a contempt of this court. The petition prays that the respondents be prosecuted for such criminal contempt and that an order issue requiring them to show cause why they should not be adjudged in criminal contempt. The petition requested the appointment of the United States Attorney for the Eastern District of New York to represent the court and to prosecute the aforesaid respondents.

Accordingly, an order to show cause conformable to the prayer of the petition was signed on July 15, 1943. On August 19, 1943, the defendants appeared and by answer denied material allegations of the petition, alleged that "the court or the criminal part of the court lacks jurisdiction of the subject matter"; that the alleged violations were not committed in the presence or the close proximity of the court, and could not constitute a criminal contempt, and accordingly moved for the dismissal of the petition. At the same time they demanded a jury trial. Subsequently the request for a jury trial was withdrawn and the defendants, by stipulation filed September 1, 1943, agreed to waive any rights to a trial by jury.

On November 4, 1943 the matter came on for trial before this court. At the outset the respondents again waived a trial by jury, though the right to such trial was offered them by the court.

The defendants stand on an issue of law rather than on any controversy of the facts. The Government's proof establishes that the respondents paid a number of the company's employees less than the minimum rate of 40¢ an hour and that they employed a number of employees for work weeks in excess of 40 hours without compensating them at time and a half their regular rate of pay. The proof also supports the allegation of the petition that the records were falsified in violation of the terms of the decree. All of this evidences a wilful violation as testified to by the Government's witnesses Rosen and Sacks, piece workers, and by Lempert, an hourly rate employee. Other testimony of Mary Montenino and Adele Broncino discloses that they were paid at rates substantially less than 40¢ an hour and that they worked in excess of 40 hours weekly without receiving time and a half for overtime.

Peter Badolucco, one of the respondents, was ill and the matter as to him was severed. Joseph Wank, the other individual defendant, managed, supervised and controlled the business activities of the corporate respondent; and though he was not named as a defendant in the civil suit, it was conceded at the trial that Wank was apprised that a restraining order had been entered against the corporation and the other individual respondent. I believe that it is a fair inference supported by the proof in this case that Wank knew not only that the corporate defendant but also its officers and agents were obligated by the terms of the consent judgment. In passing, though, it should be observed that the provisions of the decree (designated a judgment in the papers) are so general as to be a mere re-statement of the statute itself. Indeed, if that decree had not been entered, the respondents would have been as effectively bound by law as they now are by the decree. It contains no specific provisions, for there is no schedule annexed to the stipulation which by the decree is made part of the judgment.

Accordingly I find both the corporate defendant and Wank guilty of contempt for violating the terms of that consent judgment.

The respondents argue that criminal contempts are crimes, as, of course, they are, and that accordingly the accused are entitled to the benefits of all constitutional safeguards, citing Ex...