Mitchell v. Lublin, McGaughy & Associates/Dissent Whittaker

Mr. Justice WHITTAKER, dissenting.

While I am of the view that the evidence may be sufficient to show that some of respondents' employees at some times-namely, fieldmen when traveling interstate in gathering information needed for the preparation of architectural and engineering plans, and construction supervisors when actually supervising the repairing or remodeling of structures used in commerce-are 'engaged in commerce,' within the meaning of § 7(a) of the Fair Labor Standards Act, as amended, 29 U.S.C. § 207(a), 29 U.S.C.A. § 207(a), I am nevertheless persuaded that the evidence is not sufficient, and does not show conduct sufficiently continuous as to any category of employees, to justify the entry of a general injunction against respondents from, in effect, 'violating the law,' thus requiring them to live under pain of contempt citation for violation of a general injunctive decree, while others live under the law of the land. I am further persuaded to this conclusion in the knowledge that such of these employees as can show that their particular work at a particular time rendered them 'engaged in commerce' have a complete legal remedy under § 16(b) of the Act, 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b), to recover overtime compensation plus an additional equal amount, attorneys' fees and costs. As I read its opinion, these are the factors that persuaded the Court of Appeals to affirm the District Court's denial of the prayed injunction, 250 F.2d 253, 260-261, and for those reasons I would affirm its judgment.