them receive a salary of more than $ 100 per week, and in such cases their primary duty consisted of the performance of office or non-manual field work directly related to general business operations of their employer or their employer's customers, which includes work requiring the exercise of discretion and independent judgment. These employees, Messrs. Dodds, Steiner and Lowen, are justifiably regarded by the defendant as exempt under § 13(a)(1) of the Fair Labor Standards Act.'
Cases such as Rothman v. Publicker Industries, 3 Cir., 1953, 201 F.2d 618,
relied on by plaintiff are quite distinguishable from the facts of this case.
II. Clerical Workers
As of April 1, 1958, defendant conceded that two of its clerical employees at its Reading terminal were covered by § 7 of the Act (29 U.S.C.A. 207) and were entitled to overtime pay. One employee was paid $ 304.87 for overtime work during the period from September 15, 1955, to April 1, 1958,
and the other was paid $ 26.67 for overtime work during the period from August 1953 to September 1954.
The current investigation of defendant's Reading terminal, on the basis of which this action was investigated, began August 1953 and this suit was started January 31, 1957, but these payments were not made to these employees until April 1958. Furthermore, a national investigation of defendant's business had been made in 1942 and resulted in the payment of overtime violations of $ 1,323.72 due to 47 employees, some of whom were clerks. Plaintiff's Request for Finding of Fact 3(1) (adopted above) also states:
'There was a bona fide dispute as to coverage. Violations were not considered to be of a wilful character. The investigation was closed administratively after payment of back wages and agreement to future compliance.'
Similarly, a 1944 investigation of the Baltimore terminal of defendant resulted in the payment of $ 1,103.71 of overtime wages to four employees, after settlement of a bona fide claim of noncoverage and there was an 'agreement to future compliance' (N.T. 213).
There is no evidence that the failure to pay overtime to the above two clerks resulted from a bona fide dispute and at least one of the clerks was required to wait over four years for some of the overtime pay to which Congress had stated she is entitled. As stated in Tobin v. Anthony-Williams Mfg. Co., 8 Cir., 1952, 196 F.2d 547, 551, '* * * it may be noted again that no testimony was adduced * * * as to any steps taken, or to be taken, to insure future compliance.'
The record makes clear that there has been a violation of § 15 of the Act (29 U.S.C.A. § 215) and that plaintiff is entitled under § 17 (29 U.S.C.A. § 217) to an injunction to restrain violations of that section. The good faith of an employer does not prevent the issuance of an injunction under the abovementioned § 17. See Chambers Construction Company v. Mitchell, 8 Cir., 1956, 233 F.2d 717, 725; McComb v. Homeworkers Handicraft Cooperative, 4 Cir., 1949, 176 F.2d 633, 640-641, certiorari denied 1949, 338 U.S. 900, 70 S. Ct. 250, 94 L. Ed. 553; cf. McComb v. Dobson, D.C.W.D.Pa.1948, 77 F.Supp. 1, 4.
Conclusions of Law
1. This court has jurisdiction over the subject matter and over the parties.
2. The following requests for Conclusions of Law of the plaintiff are adopted, with the modifications indicated, as Conclusions of Law of the trial judge: 1; 2; 3, with 'Requests for' inserted at the beginning of the last line; 4; 6; 8-12; 30; 31; and 33, with the words 'within two months' substituted for the words 'on the second day' in that paragraph.
3. Paragraphs 1 to 5 of the request for Conclusions of Law of the defendant are adopted as Conclusions of Law of the trial judge.
4. The dispatchers (Bausher and Frederick) are exempt from the overtime provisions of the Act under 13 (29 U.S.C.A. § 213) and the regulations issued under that section.
5. Under § 17 of the Act (29 U.S.C.A. § 217), the plaintiff is entitled to an injunction restraining defendant from violations of § 15(a)(2) and (5) of the Act (29 U.S.C.A. § 215) as to the employees at the defendant's Reading, Pennsylvania, terminal.