Wirtz v. Atlas Roofing Manufacturing Company, No. 23184.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGEWIN, THORNBERRY and DYER, Circuit
Citation377 F.2d 112
Docket NumberNo. 23184.
Decision Date12 May 1967
PartiesW. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. ATLAS ROOFING MANUFACTURING COMPANY, Inc., Appellee.

377 F.2d 112 (1967)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant,
v.
ATLAS ROOFING MANUFACTURING COMPANY, Inc., Appellee.

No. 23184.

United States Court of Appeals Fifth Circuit.

May 12, 1967.


377 F.2d 113

Bessie Margolin, Assoc. Sol., Dept. of Labor, Edward D. Friedman, Atty., Dept. of Labor, Charles Donahue, Sol. of Labor, Robert E. Nagle, William Fauver, Attys., Washington, D. C., Beverley R. Worrell, Regional Atty., for appellant.

J. Stuart Robinson, Jackson, Miss., for appellee.

Before GEWIN, THORNBERRY and DYER, Circuit Judges.

GEWIN, Circuit Judge:

W. Willard Wirtz, Secretary of Labor, brought an action in the United States District Court for the Southern District of Mississippi under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 217, to permanently enjoin Atlas Roofing Manufacturing Company, Inc. (Atlas) from violating § 15(a) (2), (3) and (5) of the Act, 29 U.S.C. § 215(a) (2), (3) and (5), and to restrain Atlas from withholding payment of unpaid minimum wages and overtime compensation due certain of its employees. The district court granted an injunction limited to one year rather than the permanent relief

377 F.2d 114
prayed for in the complaint and ordered Atlas to demonstrate to the court within the year its compliance with the Act and show cause why the injunction should not be extended for another year. The Secretary appeals from the denial of a permanent injunction

Atlas, a Mississippi corporation, having its place of business in Meridian, Mississippi, is engaged in the production, sale and distribution of roofing materials. Substantial quantities of roofing materials are being regularly sold, shipped and delivered by Atlas employees to points outside the State of Mississippi. Other Atlas employees guard and protect its property and production facility and control the movement of vehicles and persons into and out of Atlas' premises. Atlas' employees by reason of their activities just mentioned are engaged in commerce or in the production of goods for commerce within the meaning of the Fair Labor Standards Act.1

Atlas has been the subject of several investigations by a Department of Labor wage and hour investigator whose job was to determine compliance under the Fair Labor Standards Act. The first investigation covered the period January 1961 to 1963 and disclosed violations of the Act's overtime provisions and record keeping provisions as to the asphalt truck drivers and Atlas was so informed.

In July 1963, after a § 16(c)2 request was filed by Atlas employees, the asphalt drivers, for the Secretary of Labor to file suit for collection of back wages, the investigator made his second trip to Atlas. The investigator discovered that the violations which existed in January 1963 had not been corrected. Consequently, on October 31, 1963, the Secretary filed suit in the United States District Court for the Southern District of Mississippi alleging that Atlas had violated the overtime provisions and record keeping provisions of the Act3 and withheld payment of overtime compensation due four asphalt truck drivers for the period November 1, 1961, to July 8, 1963. The Secretary prayed that Atlas be permanently enjoined from violating the provisions of the Act. A stipulation for dismissal was filed by the parties on February 27, 1964, in which Atlas (1) acknowledged its prior violations; (2) agreed to pay the back wages due its employees; (3) represented that it had come into compliance with the Act; and (4) gave full assurance that it would comply in the future. Thereupon the court dismissed the Secretary's complaint with prejudice.

However, on the third investigation, April 1964, it was discovered that accurate records were still not being maintained on the asphalt drivers and that Atlas had not paid two of its asphalt truckers overtime for the period from July 1963 to October 1963. Atlas had paid the back wages due for overtime work to July 1963 as claimed by the asphalt drivers in the initial suit. Nevertheless, this third investigation revealed that while Atlas paid back wages for overtime due its truckers to July 1963 as it had stipulated it would, Atlas had continued to work its asphalt drivers in the same manner until October 1, 1963, and had thereby worked two of them overtime during the period July to October, 1963, for which no additional compensation

377 F.2d 115
had been paid.4 Also it was discovered that Atlas had violated the minimum wage, overtime and record keeping provisions as to its plant guards. Consequently, the Secretary brought suit in the United States District Court for the Southern District of Mississippi alleging that Atlas had violated the minimum wage, overtime and record keeping provisions and that these violations had resulted in the unlawful withholding of unpaid back wages totaling $616.88 due the plant guards and the two asphalt drivers.5 The Secretary prayed that Atlas be enjoined from withholding compensation due its employees and that it be permanently enjoined from violating the aforementioned provisions

Before trial Atlas stipulated that during the periods of time covered by this suit it violated the minimum wage and overtime provisions of the Act. It also stipulated that it had violated the record keeping requirement of the Act as to the plant guards. The Secretary stipulated that Atlas had paid the back wages and overtime compensation due its employees as specified in the complaint.

According to the testimony given at the trial, Atlas had, by the time of trial, May 1965, rectified its errors and was in full compliance with the Act. It had paid the back wages and overtime compensation due as stipulated above. Around November 1, 1964, Atlas had begun maintaining records of the hours worked by the plant guards by implementation of a time card procedure. The plant guards' working hours were reduced to 40 hours a week in order to comply with the minimum wage provisions and for any hours worked over 40 Atlas had paid overtime. Records were also being kept on the truck drivers which reflected the number of hours worked.6 Much of the testimony at trial dealt with whether Atlas had paid its truckers the minimum wage.7

The Secretary contends that in view of Atlas' persistent violations continuing after repeated administrative efforts to effect voluntary compliance, it was an abuse of discretion to deny a permanent injunction against further violations of the Act. Atlas insists that its violations were unintentional, that it has not acted

377 F.2d 116
in bad faith and that since by the time of trial it had fully complied with the Act, a permanent injunction is not warranted

Whether an employer should be enjoined from violating the Fair Labor Standards Act lies within the sound judicial discretion of the trial court. Two factors which should be considered in determining whether an injunction should issue are the employer's previous actions of non-compliance and the dependability of its promises for future compliance. Goldberg v. Cockrell, et al., 303 F.2d 811 (5 Cir. 1962);...

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24 practice notes
  • Loeb v. Textron, Inc., Nos. 78-1340
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 21 Junio 1979
    ...in lieu of reinstatement thereunder. A voluntary payment of $100 was made by the defendant in Wirtz v. Atlas Roofing Manufacturing Co., 377 F.2d 112, 115 n.5 (5th Cir. 1967), and the question of payments in lieu of reinstatement was addressed directly in Goldberg v. Bama Manufacturing Corp.......
  • Marshall v. Coach House Restaurant, Inc., No. 77 Civ. 3297-CSH.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 2 Octubre 1978
    ...within the discretion of this Court, e. g., Travelers Ins. Co. v. Lawrence, 509 F.2d 83 (6th Cir. 1974); Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th Cir. 1967), that discretion cannot be exercised until the facts are fully developed. The Court is therefore precluded from granting sum......
  • Perez v. Gulf Coast Mgmt. Co., CIVIL ACTION NO. 14-00426-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • 3 Marzo 2015
    ...discretion of the trial court, the exercise of that discretion is not unbridled. Wirtz v. Atlas Roofing Manufacturing Co., 5 Cir. 1967, 377 F.2d 112; Goldberg v. Cockrell, 5 Cir. 1962, 303 F.2d 811. Since the FLSA itself provides for no administrative sanctions, the only remedy of the Secre......
  • Morelock v. NCR Corp., Nos. 75-2220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 20 Diciembre 1976
    ...with and adherence to the public policy relating to wage standards set forth in the FLSA. See e.g. Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th Cir. 1967); Wirtz v. Jones, supra; Wirtz v. Ocala Gas Co., 336 F.2d 236 (5th Cir. 1964). The enforcement of a monetary award as an incident t......
  • Request a trial to view additional results
24 cases
  • Loeb v. Textron, Inc., Nos. 78-1340
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 21 Junio 1979
    ...in lieu of reinstatement thereunder. A voluntary payment of $100 was made by the defendant in Wirtz v. Atlas Roofing Manufacturing Co., 377 F.2d 112, 115 n.5 (5th Cir. 1967), and the question of payments in lieu of reinstatement was addressed directly in Goldberg v. Bama Manufacturing Corp.......
  • Marshall v. Coach House Restaurant, Inc., No. 77 Civ. 3297-CSH.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 2 Octubre 1978
    ...within the discretion of this Court, e. g., Travelers Ins. Co. v. Lawrence, 509 F.2d 83 (6th Cir. 1974); Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th Cir. 1967), that discretion cannot be exercised until the facts are fully developed. The Court is therefore precluded from granting sum......
  • Perez v. Gulf Coast Mgmt. Co., CIVIL ACTION NO. 14-00426-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • 3 Marzo 2015
    ...discretion of the trial court, the exercise of that discretion is not unbridled. Wirtz v. Atlas Roofing Manufacturing Co., 5 Cir. 1967, 377 F.2d 112; Goldberg v. Cockrell, 5 Cir. 1962, 303 F.2d 811. Since the FLSA itself provides for no administrative sanctions, the only remedy of the Secre......
  • Morelock v. NCR Corp., Nos. 75-2220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 20 Diciembre 1976
    ...with and adherence to the public policy relating to wage standards set forth in the FLSA. See e.g. Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th Cir. 1967); Wirtz v. Jones, supra; Wirtz v. Ocala Gas Co., 336 F.2d 236 (5th Cir. 1964). The enforcement of a monetary award as an incident t......
  • Request a trial to view additional results

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