JOHN R. BROWN, Circuit Judge.
As narrowed by the evidence, the Secretary's suit for injunction, § 17, to compel compliance by the Employer, a general contractor in Albany, Georgia, with hours of work, rates of pay and record-keeping provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., concerned itself with five isolated projects out of over 1100 separate jobs. The District Judge held three out of the five covered by the act — a decision acquiesced in by the Employer who filed no appeal. As to the remaining two held not covered, the Secretary acquiesces as to one, and brings for our decision on coverage only the status of the construction of a new radio-television building for Station WALB-TV. Independent of this coverage issue, the Secretary also challenges here the Trial Court's refusal to grant injunction in the three cases held covered (and the radio-TV contract if, by reversal, we were to hold it under the Act).
The Secretary correctly recognizes that injunction, though authorized as a specific sanction under the Act, § 17, being equitable in nature, need not issue as a routine, absolute consequence of a finding of non-compliance and the existence of coverage. For the granting or denial of an injunction — and perhaps of greater importance, the delicate drafting of its terms — must inevitably be left initially to the sound discretion of the District Judge, Walling v. Florida Hardware Co., 5 Cir., 142 F.2d 444. It is he who has seen unfolded the intimate details of the controverted activity, the approach and attitude of the parties reflecting the circumstances giving rise to the controversy, the employer's previous actions of non-compliance or litigation, the moral and business responsibility of the employer, the extent of which promises of future compliance are something more than empty, idle words unmatched by the institution of effectual corrective procedures, or are undependable contrition under pressure of legal action, whether litigious contention is the legitimate good faith quest for legal determination or the mere pretense, for past or future actions, to thwart effective compliance and many other similar and related factors from which the Judge can determine the probability of future compliance or violations.
Where these have been properly evaluated, the action of the Trial Court, whether granting
We certainly see neither disregard nor misapplication of these subtle, delicate yet profound standards by this careful District Judge.
There was, first, the acknowledged fact that, as a general contractor doing miscellaneous construction work, coverage for this Employer was a shifting thing dependent upon the nature of the jobs being performed. Despite a lengthy investigation, analysis revealed that in the two-year period and out of over 1100 contract jobs, only five were questioned.
And admittedly, the record-keeping deficiencies were almost trivial — failure to indicate residence addresses of transitory day laborers and to list the occupation of some employees, many of whom were Jack-of-all-trades. In addition, the Employer had taken tangible steps to establish a procedure under the direct supervision of a Labor Counselor, a former Wage & Hour Investigator, acknowledged by all to be a competent, reputable, professional expert
If, as the Secretary's brief states, "The controlling factor is the probability
Denial of the injunction had substantial basis and is affirmed.
But the Court was, we think, in error in denying coverage for the radio-TV building. A local newspaper owned and had long operated Radio Station WALB under a license from the Federal Communications Commission. It had applied for and received a television license. To house both the radio and television station, the Employer here had contracted to construct for WALB-TV a building at a cost of approximately $70,000.00. It was at a site exceeding a mile from the old radio station. Construction began in February 1954. While work was still under way, the TV Station commenced operations in it in April 1954 continuing them down through completion of construction in September 1954. The radio station equipment was not moved into the new building until January 1955, and its operations in the meantime continued at the old site.
Proceeding from the conviction that the intended ultimate use of this new building for the radio station was purely incidental, and that the building was therefore being constructed for an entirely new interstate communication facility (the TV Station), the District Judge held that this was "new" construction beyond the coverage of the Act initially and which, adopting the Second Circuit's rule, Scholl v. McWilliams Dredging Co., 169 F.2d 729, did not change (until final completion) merely by interim use from April to September.
This approach was too narrow. Even if (and the if is a big one) the Trial Court, with no traditional record evidence as a basis for it, could conclude that television foredoomed radio,
Independent of the proposed ultimate use for both radio and television, the Secretary insists that giving due voice to the "practical considerations" again emphasized by Mitchell v. C. W. Vollmer & Co. supra, as the gauge, construction of a new building for a new television station (unconnected with a going radio station) not yet in operation would nevertheless be commerce. This seems to rest primarily on two things. First, the specialized nature of the radio-television industry, the necessity
We think it inappropriate to anticipate this especially on a record which only in the vaguest way hints at what we as TV devotees or victims (and not as Judges) know or think we know.
While the action denying coverage as to the radio-TV building contract is erroneous and must be reversed, the matter must be remanded to the District Court for further and not inconsistent proceedings in accordance with applicable principles, since the District Judge did not, as to this, reach the question of the nature and extent of the relief to be granted, the necessity for an injunction, or the terms and provisions of any injunctive orders.
Affirmed in part.
Reversed and remanded in part.
Walling v. Mid-Continent Pipe Line Co., 10 Cir., 143 F.2d 308, 310, an employer's agreement to pay disputed wages "`until it is authoritatively determined'" that the workers were not covered following the second unsuccessful litigation of coverage question did not justify denial of injunction for, "A compliance thus burdened with conditions and uncertainties gives the appellee an advantage which equity cannot sanction nor permit to stand."
Walling v. Rutherford Food Corp., 10 Cir., 156 F.2d 513, affirmed and modified in part (other grounds), 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772; McComb v. Wyandotte Furniture Co., 8 Cir., 169 F.2d 766; Walling v. National Ice & Fuel Corp., 7 Cir., 158 F.2d 28; Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29.
Coats & Clark Thread Co. Saw Mill $ 267.18 Karagheusian Original Addition 167.65 Karagheusian North Wing 592.00 Karagheusian Dye House 99.10 Radio-TV Station 328.44 _________ Total $1,454.37