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USERY v. BOARD OF PUB. EDUC.

August 25, 1976

W.J. USERY, Jr., Secretary of Labor, United States Department of Labor, Plaintiff,
v.
BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PITTSBURGH, Defendant



The opinion of the court was delivered by: WEBER

 On February 23, 1976, the Secretary of Labor filed a complaint in this court against the Pittsburgh School District asserting a cause of action under the Fair Labor Standards Act of 1938, 29 U.S.C. § 217. The action concerns the equal pay provisions of the Act. Contemporaneously with the filing of the complaint a Consent Judgment signed by the counsel for the parties was presented to the court and approved and signed. Later all employees were notified by mail of the amount of back wages to which they were entitled under the Consent Judgment and were asked to return these forms to facilitate distribution of the funds. One of the parties to whom such notice was mailed is the proposed Intervenor.

 Some four and one-half months later a petition was filed on behalf of one of those parties asking for leave to intervene in the litigation. The ground asserted in the petition for leave to intervene was the inadequacy of the award to the Intervenor.

 Both plaintiff and defendant oppose the motion to intervene on the grounds that the statute terminates the right of any employee to bring an action upon the filing of a complaint by the Secretary of Labor.

 Section 17 of the Act (29 U.S.C. § 217) grants to the United States District Courts jurisdiction to restrain violations of the Act and restrain the withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under the Act.

 Section 16(b) and Section 16(c) provides for enforcement of the Act by civil actions. Section 16(b) provides in its pertinent parts as follows:

 
Action to recover such liability may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought . . . The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 17 in which restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be . .

 Section 16(c) provides in pertinent part:

 
The Secretary is authorized to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee . . . The Secretary may bring an action in any court of competent jurisdiction to recover the amount of the unpaid minimum wages or overtime compensation . . . . The right provided by subsection (b) to bring an action by or on behalf of any employee and of any employee to become a party plaintiff to any such action shall terminate upon the filing of a complaint by the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation . . .

 Despite the apparently clear mandate of the statute the proposed Intervenor argues that the express terms of the statute or any judicial construction thereof do not preclude intervention either as a right under Fed.R.Civ.P. 24(a) or permissive intervention under Fed.R.Civ.P. 24(b). The Intervenor argues that the proper interpretation of the Act is that once the Secretary has filed his complaint, an employee is expressly proscribed from intervening in a prior or private suit.

 We cannot accept this argument against the plain language of the statute. Both Section 16(b) and Section 16(c) recite that the right to bring an action by or on behalf of any employee and of any employee to become a party plaintiff to any such action shall terminate. The plain meaning of this language is that the employee cannot become a party in any capacity, including that of an intervenor, once the Secretary has filed suit. The Intervenor's brief cites the Conference Report accompanying the 1961 Amendments which added this provision in support of a right of intervention by quoting the following:

 It is argued that this prohibition would only apply to private actions but would not apply to intervention in the Secretary's action. However, intervention in the Secretary's action to establish a right conferred by the Act could only be accomplished by the Intervenor becoming a party plaintiff which is clearly proscribed by the language of the Act, "and the right of any employee to become a party plaintiff to any such action, shall terminate . . . ."

 The same legislative history is cited to support the Intervenor's argument that the intention of Congress was to avoid a multiplicity of suits once the ...


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