MEMORANDUM OF DECISION
BLUMENFELD, District Judge.
This is an action brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 217, hereinafter called the Act, seeking an injunction against the continued withholding by defendants of overtime wages allegedly due to their employees and against any future violations of the overtime and record-keeping provisions of said Act, 29 U.S.C. §§ 215(a) (2) and (a) (5). Jurisdiction is conferred by § 17, 29 U.S.C. § 217. The case is here upon a stipulation of facts agreed to between the parties and incorporated into these findings of fact.
The defendant The Harper Buffing Machine Company is a corporation organized under and existing by virtue of the laws of the State of Connecticut and has its principal office and place of business at 316 Ellington Road, East Hartford, Connecticut, within the jurisdiction of this court and is engaged at that place of business in the design, assembly, sale and servicing of automatic finishing and buffing equipment, said equipment being regularly received and shipped in interstate commerce.
The defendant John F. Harper resides in Portland, Connecticut, within the jurisdiction of this court and is president and treasurer of the corporate defendant The Harper Buffing Machine Company and as such actively manages, supervises
The defendant John B. Willard resides in West Hartford, Connecticut, within the jurisdiction of this court and is secretary of the corporate defendant The Harper Buffing Machine Company and as such actively manages, supervises and directs the business affairs and operations of said corporation.
At all times pertinent to this action, the defendants, employers within the meaning of the Act, regularly engaged their employees (more specifically the employees as set forth in the Appendix to this opinion), in ordering, purchasing, receiving, handling, designing, producing, shipping and otherwise working on parts and equipment which are produced for interstate commerce and shipped and received in interstate commerce.
During the period February 25, 1964, through October 7, 1965, the above-mentioned employees were compensated on the basis of a weekly salary, said salary remaining constant regardless of the number of hours worked by the employees in the workweek.
The employees at times worked both more than and less than their scheduled 44 or 47½ hour weeks and were paid the same weekly salary.
During the period February 25, 1964, through October 7, 1965, the defendants employed the above-mentioned employees for workweeks longer than 40 hours without compensating them for their employment in excess of 40 hours per week at rates not less than one and one-half times the properly determined regular rate of pay.
During the period February 25, 1964, through October 7, 1965, the defendants failed to make, keep, and preserve records, in that the defendants failed to show and record the actual hours worked each day and each workweek, the regular rate of pay, the basis upon which wages are paid, the total straight time earnings for each workweek, and the total weekly overtime earnings for each workweek.
The defendants were apprised of the unpaid overtime compensation due to the employees on November 2, 1965, and since that date the defendants have continued to refuse to make payment of the unpaid overtime compensation to said employees.
It has been agreed between the parties that if overtime violations requiring relief are found, then the summary contained in the Appendix represents an acceptable computation of the amounts due and owing to each employee.
Conclusions of Law and Opinion
Two major issues are presented for resolution:
1. Did the defendants' practices prior to October 1965 constitute a violation of the overtime and record-keeping provisions of the Act?
2. Should an injunction issue (a) with regard to the wages due, and (b) with regard to future conduct by the defendants?
Before reaching these issues, a preliminary question of the propriety of this action under § 17 has been raised by the defendants. Defendants' counsel argues strenuously in his brief first that a § 17 action is essentially an equitable one and that the present case involving primarily a claim for back overtime wages is not an appropriate one for equity. Rather, that the proper course under the circumstances is an action under § 16. Second, it is his contention that even if otherwise appropriate there is no basis on the facts for a § 17 action seeking an injunction directed to future conduct since defendants' practices have been brought into conformity with the Act.
These arguments, however, are premised on a misunderstanding of the function and operation of § 17. A statutory authorization for an injunction under a given set of circumstances is not necessarily limited to the reach of common law equity to the defined subject matter. Arguments taken whole cloth from prior equity practice in a private controversy may not suit the statutory remedy that Congress has made available
Given that view of the section's function, it is clear that there is no reason why such an injunction against withholding back wages could not be sought by the Secretary independent of or in the absence of any move for a continuing injunction against future conduct. Nothing in the wording of the section forbids such a reading and in fact several cases where that was the only relief given have been reported. Wirtz v. First State Abstract & Ins. Co., 362 F.2d 83 (8th Cir. 1966); Wirtz v. Hines Realty Co., 361 F.2d 321 (5th Cir. 1966) (per curiam); Burk Builders, Inc. v. Wirtz, 355 F.2d 451 (5th Cir. 1966) (per curiam); Wirtz v. Hartley's, Inc., 245 F.Supp. 101 (S.D.Fla.1965); Wirtz v. Miller, 226 F.Supp. 15 (E.D.N.Car.1964).
It is equally clear that the fact that defendants' practices have been brought into conformity with the Act would not necessarily bar the Secretary from obtaining an injunction ordering future compliance under § 17. Rather, such conformity at the time of trial would be one factor among many to be considered.
Turning then to the merits, it is clear from the facts as reported in the stipulation that defendants were in violation of the overtime provisions of the Act prior to 1965.
The second major question for decision is the appropriateness of injunctive relief. As far as the question is one of ordering that the overtime due to the employees no longer be withheld, there is no question but that such an order should enter. As has already been explained above, it cannot be said that once a violation is shown remedial relief to this extent is still discretionary. In any case, defendants offer no sound reason for refraining from the issuance of such an injunction. Merely labelling its violation as a "technical" one does not forward the discussion. What is implied by that contention is that the violation was not calculated. However, intent is not an element here. While lack of malicious motives may provide a reason for not imposing additional penalties beyond the compensation due, it does not excuse the defendant's failure to pay money determined to be due and owing to its employees or justify its own enrichment at their expense. See Wirtz v. Hartley's, Inc., 245 F.Supp. at 107.
Moreover, an order barring further withholding of overtime wages due issues primarily "to correct a continuing offense against the public interest" and not simply "to collect a debt owed by an employer to his employee." It "is simply a part of a reasonable and effective means which Congress, after trial and error, found it necessary to adopt to bring about a general compliance with § 15(a) (2)." Wirtz v. Jones, 340 F.2d at 904.
Whether the injunction should issue to bar future violations by defendant is much more a matter within the discretion of the court. Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th Cir. 1967). Among the factors to be considered in the exercise of that discretion are:
Finally, in determining whether to issue such an injunction, the light burden it would impose on the employer must be weighed against the heavy administrative and investigative responsibilities which non-issuance would place on the Department of Labor. As the Fifth Circuit Court of Appeals noted in Mitchell v. Pidcock, 299 F.2d at 287:
An injunction should issue.
This constitutes the court's finding of facts and conclusions of law. An order is issued separately and contemporaneously herewith.
APPENDIX
SUMMARY OF WAGES DUE AND OWING
TO EACH EMPLOYEE
Amounts
Name & Address Period Covered Due
John Anstett
Wells Ave.
East Hampton, Conn. 2/25/64 3/26/65 $ 300.38
William M. Braren
Crescent St.
East Hampton, Conn. 2/25/64 10/ 7/65 $ 78.21
Raymond Brouillette
376 Thompsonville Rd.
Suffield, Conn. 8/14/64 10/30/64 $ 95.59
Stuart Coleman
East Hampton, Conn. 5/20/64 7/30/64 $ 106.65
Otis Dickinson
RFD #4 - Box 196
East Hampton, Conn. 3/20/64 10/ 7/65 $ 789.61
Frank Dunham Staeth Rd. East Hampton, Conn. 10/7/65 $ 9.48 John M. Fiori 302 Ellington Rd. East Hartford, Conn. 2/25/64 10/ 7/65 $ 423.72 Frederick Hotchkiss 6 West Point Terrace West Hartford, Conn. 4/17/64 10/ 7/65 $ 420.94 John Krasnitski, Jr. Abbey Rd. East Hampton, Conn. 4/ 2/65 8/13/65 $ 107.44 Charles E. Lavigne 149 Shunpike Rd. Cromwell, Conn. 9/10/65 10/ 7/65 $ 30.04 Benjamin T. Lord 45 Shetucket Ave. Taftville, Conn. 4/ 2/65 10/ 7/65 $ 197.50 Robert L. Lyman RFD #2 Marlborough, Conn. 2/25/64 10/ 7/65 $ 895.67 Charles Lee Mifflin 7 Bank St. Ext. Portland, Conn. 5/29/64 3/19/65 $ 318.15 Alphonso Ozimek 355 Town Rd. Colchester, Conn. 2/25/64 10/ 7/65 $ 883.82 Peter P. Perun Mack Rd. Middlefield, Conn. 2/25/64 10/ 7/65 $ 220.50 John A. Race RFD #2 - Box R-1 Durham, Conn. 2/25/64 10/ 7/65 $ 671.40 Paul V. Roberts Burrows Hill Rd. Hebron, Conn. 3/13/64 9/30/65 $ 663.98 Robert Shelton 8 Wells Ave. East Hampton, Conn. 2/25/64 4/23/64 $ 66.40 Robert Zwitzer North St. Hebron, Conn. 5/22/64 10/ 7/65 $ 599.70 Shirley E. Tourtillotte Roberts Rd. Marlborough, Conn. 11/ 6/64 10/ 7/65 $ 375.56 ________ $7244.65 ========
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