ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Seitz, Chief Judge, Aldisert and Hunter, Circuit Judges. Hunter, Circuit Judge, concurring.
This case raises the question of whether employees normally exempt from the maximum hours provisions of the Fair Labor Standards Act because they function in executive, administrative or professional capacities are subject to these provisions during a strike period in which they take over the functions normally performed by rank and file employees. The district court held that the executive employees are exempt, but concluded that the administrative and professional employees who work more than 40 hours per week must be paid one and one-half times their regular rates of pay. The defendant, Western Union Telegraph Company, appeals the provision of the district court's judgment which directs it to pay overtime to the administrative and professional employees. The Secretary of Labor, who is the plaintiff, cross-appeals the court's conclusion that the executive employees are subject to exemption from the maximum hours provisions of the FLSA.
The case arises on a stipulated set of facts, the relevant provisions of which are as follows. Western Union, the only domestic telegraph company serving the continental United States, engages in the business of providing telegraphic and related written communications services to the general public, private industry, and various agencies of federal, state, and local governments. From June 1, 1971 through July 27, 1971, 14,715 of the company's employees represented by the United Telegraph Workers were on strike against the company. From June 1, 1971 through September 12, 1971, 2,947 employees represented by the Communications Workers of America also went out on strike. These two groups of "striking employees constituted the entire rank and file work force of Western Union personnel engaged in operational, technical and clerical functions and in the maintenance of systems and equipment."
Western Union, however, continued to provide some of its communications services during the strike -chiefly those "which were essential to the domestic defense communication services and to national defense." The Stipulation states that "the only manner in which Western Union was able to provide the foregoing services during the strike was by assigning [approximately 2,100] managerial employees to perform the clerical, technical, operational, and maintenance functions necessary thereto, as replacements for the striking employees who normally performed such tasks," and that Western Union could not have provided the services in question by obtaining replacements for the striking employees from other sources because of "the technical skill and familiarity with the operations required," and in the case of one service provided to the Department of Defense, because "of the requirement for high level national security clearance." The parties have also stipulated that "[a] substantial number [of the managerial employees on strike duty], but not all, devoted more than 50% of their time during the period of the strike to the clerical, technical, maintenance and operational tasks normally performed by the striking employees."
The "judgment" appealed from states that the district court has:
Ordered, ADJUDGED AND DECREED that Defendant Western Union Telegraph Company, its officers, agents, servants, employees and those persons in active concert or participation with them who received actual notice of this order by actual service or otherwise be and they hereby are enjoined and restrained from violating the provisions of sections 15(a)(2)*fn1 of the Fair Labor Standards Act of 1938, as amended (52 Stat. 1060, 29 U.S.C. 201-219), hereinafter called the Act.
This prohibition does not include employees classified as "Executive" employees within the meaning of the Act and Regulations, for the reasons stated in the Court's Memorandum Opinion.
The court also ordered that:
(a) Defendant and Plaintiff shall proceed promptly to stipulate to the amounts owed to Defendant's "Administrative" and "Professional" employees who served as replacements for the striking employees during the period from June 1, 1971 through September 12, 1971 which have been withheld from them in violation of section 7(a)*fn2 of the Act, with interest at six per cent per annum from the dates the amounts were earned.
(b) If a stipulation conforming to (a) above has not been executed on or before June 30, 1976, either party may apply to the Court for an order directing the manner in which the foregoing amounts are to be determined under the Court's supervision.
(c) No later than 30 days after the aforesaid stipulation or other determination of amounts so withheld by Defendant shall have been filed, all such amounts, less deductions required by law, shall be remitted by Defendant to Plaintiff, and Plaintiff shall distribute to the persons named in the supplemental order or to their surviving heir or heirs if that is necessary, all such amounts, and any money not so distributed by the Plaintiff within three years because of Plaintiff's inability to locate the proper person, or because of such person's refusal to accept such money, such money shall be ...