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MARSHALL v. BURGER KING CORP.

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK


March 12, 1981

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
BURGER KING CORPORATION, Defendant

The opinion of the court was delivered by: SIFTON

On Motion to Amend

Defendant has moved to amend the judgment filed herein on February 25, 1981. The motion is denied.

 The first amendment sought borders on the frivolous. Defendant failed at trial to sustain its burden of establishing that its Assistant Managers subject to the long form test are exempt executives. Accordingly, these employees are appropriately compensated for overtime work on the same basis as other hourly employees. If at some later date defendant can establish, through demonstrated changes in its internal procedures and consequent alteration of the work patterns of its Assistant Managers, that its Assistant Managers have become executive employees in fact, as well as in name, it can apply on appropriate notice to the Secretary to be relieved of the terms of the judgment. Until such time as the judgment is modified, the Assistant Managers are entitled to compensation for the work they do on the same basis as other employees in their category of employment.

 With respect to the second amendment sought, the reference to the New York regional office is appropriate. The reference is, as explained in this Court's opinion, to the first office in the corporate hierarchy exercising supervision over both of the districts involved in this litigation. It is this office with responsibility for both districts that was found to be the source of the violations in each district. Whether this office is called by defendant its Area Office or, as now seems more likely, its Regional Office is beside the point. What matters is the function of the office with regard to both of the districts involved in this litigation. Having itself offered little evidence even at this stage with regard to its own internal organization above the district level as bearing on the issue of the appropriate remedy in the event violations were found, defendant can hardly complain now if the language of the decree does not conform to its own internal usage.

 The reference to defendant's concession that the evidence at trial is sufficient to support a finding of violation at the district level will stand. The reference in the opinion was not intended to suggest that defendant has conceded a violation, but only to state what defendant's papers show, namely, a concession that the evidence at the trial was sufficient to support a finding of violation at the district level.

 The Clerk is directed to mail a copy of the within to all parties.

 SO ORDERED.

19810312

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