Before MAJOR, Chief Judge, DUFFY and LINDLEY, Circuit Judges.
MAJOR, Ch. J.: This is an appeal from a judgment, entered May 10, 1950, adjudging respondents guilty of criminal contempt for wilful violations of an injunction restraining them from violating the overtime, record-keeping and shipment provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. Sec. 201 et seq. The judgment was predicated upon the court's findings of fact and conclusions of law. By the judgment each of the respondents was sentenced to pay a fine in the amount of $5,000.00, and the costs of prosecution. In addition, the respondents were directed to pay to certain employees wage reparations in the amounts as shown in petitioner's Exhibit No. 26, for the period between October, 1946, and May, 1949, inclusive. The judgment further provided that respondents pay such fines, costs and reparations within ten days, otherwise to stand committed.
The two main questions raised on this appeal are (1) that the proof was not sufficient to justify the judgment of criminal contempt and that the court was without authority to assess cost against respondents in such a proceeding, and (2) that the court was without authority to order the payment of reparations by respondents, this being a remedy available in civil contempt.
Respondent's first contention may be disposed of in brief fashion. We have examined the record, including the many exhibits, and read the oral testimony, and have no doubt but that it supports the court's findings and judgment that respondents were guilty of the criminal contempt alleged. This is so notwithstanding the record reveals some rather serious inconsistencies which might be profitably enumerated if we were the triers of the facts, which we are not. That was peculiarly the function of the district judge, and the only question here is whether his findings and conclusions are substantially supported. We think that they are.
Notwithstanding our conclusion in this respect, we shall briefly refer to the proof offered by the petitioner because it has a bearing not only upon the issue to which we have just referred but also upon the issue which we shall subsequently discuss. Respondents had twice previously been before the district court in similar proceedings. On March 15, 1941, the Administrator of the Wage and Hour Division (afterward the Secretary of Labor was substituted as the party-plaintiff) sought an injunction to restrain violations of the minimum wage, overtime, shipment and record-keeping requirements of the Act. The court found against respondents and enjoined each type of violation. No appeal was taken from this order. On May 24, 1944, a criminal prosecution was instituted for violation of the injunction. A judgment was entered against respondents on the ground, among other things, that they had failed to pay certain employees at the rate of time and one-half of their regular pay for hours worked in excess of forty per week, and respondents therein were directed to pay such overtime wages in compliance with the Court's injunction. Again no appeal was taken, and presumably this judgment was satisfied.
The instant action, instituted on October 31, 1949, is the second prosecution for criminal contempt of the injunction. Respondents were engaged in the demolition of buildings and the handling of scrap iron and other similar junk material. At different times they employed several hundred men, part of whom worked in respondents' yard, but it appears that the majority were on jobs away from the yard demolishing buildings. Respondents' books were offered in evidence by petitioner, which discosed that the employees were paid on an hourly basis, with time and one-half for hours worked over forty per week. However, twenty-three employees testified in the proceeding that they were employed on a daily rather than hourly basis. Respondents admit that twenty-one of such witnesses so testified. The court expressed the opinion that these witnesses testified truthfully, and found accordingly. It follows that respondents' records were inaccurate in that they did not properly reflect the hourly rate and, consequently, the amount of overtime to which the testifying employees were entitled.
There were also mumerous instances shown where the number of hours worked by employees was not recorded on the books, and particularly is this so as to the hours worked on Sundays. There were other instances where the number of hours recorded was fewer than those actually worked, and other facts and circumstances were shown which seriously reflect upon the accuracy of the records and for which respondents offer no adequate explanation. In fact, the errors shown are far too numerous to be ascribed to innocent mistakes or oversights. Especially is this so when it is taken, into consideration, as the district judge had a right to do, that respondents by reason of the previous proceedings had been warned as to their duty to keep accurate records in compliance with the Act. The judgment as it relates to criminal contempt is affirmed.
Respondents argue that in criminal contempt, the court was without authority to award costs. While we find no case where this question has been decided, it has been held that the court may properly award costs in a proceeding for civil contempt. Gompers v. Bucks Stove & Range Company, 221 U.S. 418, 447; McComb v. Norris et al., 177 F.2d 357, 360. That the charging of costs to a defendant found guilty in a criminal case is proper is not open to doubt. And we perceive no reason why it may not be properly done in a proceeding for criminal contempt. The judgment against the respondents for costs is also affirmed.
Respondents' contention that the court was without authority to include in its judgment a direction that they pay to certain employees wage reparations presents a more serious problem. That this was a judgment proper only in civil contempt is hardly open to question. In fact, the two forms of contempt depend upon the character of the judgment. As the court stated in Gompers v. Bucks Stove & Range Company, supra, page 448, "The classification then depends upon the question as to whether the punishment is punitive, in vindication of the court's authority, or whether it is remedial by way of a coercive imprisonment, or a compensatory fine payable to the complainant. Bearing these distinctions in mind, the prayer of the petition is significant and determinative." As the award of reparations was a "compensatory fine" payable to the employees, it was a judgment for civil contempt.
That the proceeding was one solely for criminal contempt is certain. Civil contempt was neither alleged, found nor even mentioned in the proceedings prior to the entry of the judgment. The petition instituting the proceeding was entitled, "Petition for Prosecuion of Robert A. Pielet and David Pielet for Criminal Contempt of Court." The prayer of the petition was as follows:
"Wherefore, petitioner respectfully requests this Court to
(1) Prosecute Robert A. Pielet and David Pielet for criminal contempt of the Court and to issue an order to Robert A. Pielet and David Pielet, requiring them to show cause why they should not be adjudged in criminal contempt of the Court for failure and refusal to comply with said judgment of the Court; and
(2) Appoint Herman Grant and Ruth Provus, attorneys employed by the United States Department of Labor, and representing the said Administrator, as counsel to represent the Court, and to prosecute on behalf of the Court, Robert A. Pielet and David Pielet, for criminal contempt of the Court; and
(3) Adjudge Robert A. Pielet and David Pielet in criminal contempt of this Court for their failure and refusal to comply with the said judgment of the Court and to punish them for such contempt in ...