

February 3, 1995

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1032

                  ROBERT B. REICH, SECRETARY OF
                 LABOR, U.S. DEPARTMENT OF LABOR,
                      Plaintiff - Appellant,

                                v.

                 NEWSPAPERS OF NEW ENGLAND, INC.
          D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,
                     Defendants - Appellees.

                                           

No. 94-1033

           SECRETARY UNITED STATES DEPARTMENT OF LABOR,
                      Plaintiff - Appellee,

                                v.

                 NEWSPAPERS OF NEW ENGLAND, INC.
          D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,
                     Defendants - Appellants.

                                           

                           ERRATA SHEET

     The opinion of  this Court  issued on January  24, 1995,  is
amended as follows:

     Footnote  21  on  page   48,  line  3  should   read  "post-
investigation violations.   Though  the magistrate judge  hearing
the  motion  ultimately  denied  it,  the Secretary's  supporting
arguments are enlightening: . . ."  The last two sentences of the
same  footnote  should read:   "The Secretary  should have either
filed a  second  lawsuit or  objected to  the magistrate  judge's
denial of the motion pursuant to Fed. R. Civ. P. 72(a).  The fact
that it did neither may not be rectified through this appeal."

January 31, 1995  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 94-1032

                  ROBERT B. REICH, SECRETARY OF
                 LABOR, U.S. DEPARTMENT OF LABOR,
                      Plaintiff - Appellant,

                                v.

                 NEWSPAPERS OF NEW ENGLAND, INC.
          D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,
                     Defendants - Appellees.

                                           

No. 94-1033

           SECRETARY UNITED STATES DEPARTMENT OF LABOR,
                      Plaintiff - Appellee,

                                v.

                 NEWSPAPERS OF NEW ENGLAND, INC.
          D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,
                     Defendants - Appellants.

                                           

                           ERRATA SHEET

     The opinion of  this Court  issued on January  24, 1995,  is
amended as follows:

     On page 35, first  full paragraph, line 11, delete  "(2)" so
that it reads:  ". . . creative in character"  and "which depends
primarily on the . . ."

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1032

                  ROBERT B. REICH, SECRETARY OF
                 LABOR, U.S. DEPARTMENT OF LABOR,
                      Plaintiff - Appellant,

                                v.

                 NEWSPAPERS OF NEW ENGLAND, INC.
          D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,
                     Defendants - Appellees.

                                           

No. 94-1033

           SECRETARY UNITED STATES DEPARTMENT OF LABOR,
                      Plaintiff - Appellee,

                                v.

                 NEWSPAPERS OF NEW ENGLAND, INC.
          D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,
                     Defendants - Appellants.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

             [Hon. Shane Devine, U.S. District Judge]                                                              

                                           

                              Before

                     Torruella, Chief Judge,                                                     
                  Coffin, Senior Circuit Judge,                                                        
                   and Keeton,* District Judge.                                                        

                                           

                                                  

*  Of the District of Massachusetts, sitting by designation.

     Edward  E.  Shumaker  III,  with  whom  Robert  J.  Finn and                                                                       
Gallagher,  Callahan   &amp;  Gartrell,  P.A.,  were   on  brief  for                                                   
Newspapers of New England, Inc. d/b/a The Concord Monitor, et al.
     John G. Kester, Thomas G. Hentoff and Williams &amp; Connolly on                                                                        
brief for Newspaper  Association of  America, National  Newspaper
Association, American  Society of Newspaper Editors, and National
Association of Broadcasters, amici curiae.
     Anne Payne Fugett, Attorney,  U.S. Department of Labor, with                                
whom  Thomas  S.  Williamson,  Jr., Solicitor  of  Labor,  Monica                                                                           
Gallagher, Associate  Solicitor, William J. Stone,  Acting Deputy                                                           
Associate  Solicitor, and  Albert Ross, Regional  Solicitor, U.S.                                                
Department of Labor, were on brief for the Secretary of Labor.
     David  S. Barr,  Michael J. Gan  and Barr, Peer  &amp; Camens on                                                                        
brief for The Newspaper Guild, AFL-CIO, CLC, amicus curiae.

                                           

                         January 24, 1995
                                           

                               -2-

          TORRUELLA, Chief Judge.  These cross appeals require us                    TORRUELLA, Chief Judge.                                          

to  decide  whether  the reporters,  editors,  and  photographers

employed  by a  small  community newspaper  are  exempt from  the

overtime and recordkeeping provisions of the Fair Labor Standards

Act of 1938,  29 U.S.C.   201 et seq. ("FLSA" or the "Act").  The

case revolves  around whether the  employees at issue  are exempt

under the "professional employee" exemption of    13(a)(1) of the

Act.

          This  case arose  when the  United States  Secretary of

Labor ("the Secretary") brought this action against Newspapers of

New England, Inc. d/b/a The  Concord Monitor ("The Monitor"), and                                                                    

George  Wilson,  the  newspaper's  publisher,  claiming  that The                                                                           

Monitor   had  willfully   violated  the  overtime   and  records                 

requirements  of the FLSA  with respect to the  wages it had paid

its reporters, editors, and photographers.  The Monitor's primary                                                                 

defense was that  the FLSA did not cover its  actions because the

employees at issue  were exempt professionals.  The  Monitor also                                                                      

maintained that  any FLSA violations  it may have  committed were

not willful.

          The case was tried to the bench.  In an  opinion issued

seven years after the  trial concluded, the court found  that The                                                                           

Monitor's   newsroom  employees   were   not   entitled  to   the                 

professional exemption  from the Act's overtime  requirements and

awarded back  wages and  liquidated damages to  twelve employees.

The court also found,  however, that the violations had  not been

committed willfully  and consequently limited the  damages to the

                               -3-

two-year period before  the filing  of the suit  rather than  the

three-year period  applicable to  willful violations.   The court

refused to award damages for violations occurring after the close

of  the  DOL's  compliance   investigation,  and  it  denied  the

Secretary's  request for  a  permanent injunction  against future

violations.  These cross appeals followed.

          Although the  district court  was inexplicably slow  in

issuing  its  less-than-meticulous  opinion, we  affirm  for  the

reasons that follow.

                        FACTUAL BACKGROUND                                  FACTUAL BACKGROUND

          The  Monitor is  an award-winning  small-city newspaper                                

with a  daily  circulation in  excess  of 4,000  copies.   It  is

published in  Concord, New  Hampshire, by the  defendants, George

Wilson  and Newspapers  of  New  England,  Inc.    In  1974,  the

Department of Labor ("DOL")  investigated the newspaper under the

FLSA  and  warned  it  of  possible  overtime  and  recordkeeping

violations.  Although the DOL did not press charges at that time,

it informed the paper of the relevant FLSA requirements.

          In late 1979 and early 1980, the DOL again investigated

the pay practices in The  Monitor's newsroom.  This investigation                                           

convinced the DOL that certain newsroom employees were  not being

paid  for  all their  overtime  hours.    Consequently,  the  DOL

commenced  this litigation.   The newsroom employees  at issue in

the  Secretary's  action were  reporters, low-level  editors, and

photographers.

          The  evidence  at  trial  consisted  of  the testimony,

                               -4-

either live or through deposition, of fourteen newsroom employees

and several experts in the field of journalism.

          1.  Newsroom Employees:                    1.  Newsroom Employees:

          The  Monitor's  editor-in-chief, Mike  Pride, testified                                

that he requires a college degree  with an emphasis in writing to

work as a staff writer or editor.  Nevertheless, he conceded that

a  journalism degree was not a prerequisite for employment at The                                                                           

Monitor.  In  fact, Pride and at least one-half  of the reporters                 

who  testified had  degrees in  subjects other  than journalism.2

For most of The Monitor's reportorial staff, this employment  was                                 

their first in the field of journalism.

            a.  Staff Writers                      a.  Staff Writers                                       

          When  hired, The  Monitor's reporters were  assigned to                                             

tasks  ranging  from  writing features  to  covering legislative,

municipal, and town governments and agencies.  Some of their work

was of  a routine nature, such  as compiling lists of  the titles

and  times of local showings  of motion pictures.   The reporters

testified   that  they   worked  essentially   unsupervised,  had

authority  and discretion  over  what  they  did and  wrote,  and

decided how  their assignments would be  executed.  Nevertheless,

most  of them  testified that  their time  was spent  on "general

assignment" work and  their writing was  mainly focused on  "hard

news."
                                                  

2  Of the 32  employees for whom back wages were sought, six held
Masters  degrees, four of which were in journalism; 16 had earned
Bachelor's degrees;  one employee  held an Associate  degree; one
had taken some college  courses; and one had taken  courses at an
institute of photography.

                               -5-

          For  example,  staff writer  Margaret  Burton testified

that during her first  year, as an education reporter,  she wrote

about  education  issues  and  covered the  State  Department  of

Education as well  as the  meetings of the  local school  boards.

When she  was  later assigned  to  cover court  proceedings,  she

reported  "who was  charged, what  the charges  were and  who the

witnesses were and what they said."

          Sharon Goss testified that  she wrote "feature stories"

when she first started at the paper.  She described these stories

as having "more of a  fill the page kind of mentality .  . . than

go out and  do something  really creative."   Ms. Goss  testified

that  when she  later  became a  regional  reporter, she  covered

government   and  town  planning  meetings,  visited  offices  of

selectmen, called people on the phone about pertinent issues, and

read  through  courthouse  documents  concerning  lawsuits  filed

against towns.

          Randall Keith  testified that during his  first year at

The  Monitor  he  spent  approximately 90  percent  of  his  time                      

covering city hall  and the remainder  covering police and  other

general assignment  stories.   Later, he  split his  time between

business writing and covering the police beat.  He testified that

none of his  writing was highly  complex and  that it could  have

been done by anyone with general training and ability.

            b.  Editors                      b.  Editors                                 

          Lila  Locksley  testified  that  her  main duties  were

reading wire stories for  grammatical and factual errors, writing

                               -6-

headlines,  and  making improvements  so  that  the stories  were

shorter  or more readable.  She also  performed layout work.  She

testified that the layout work consisted of editing  the stories,

writing  headlines, sizing photographs,  and writing the captions

that appeared beneath the photographs.

          Nancy  Druelinger  offered  similar testimony,  stating

that most of her  time was spent writing headlines,  reading over

and rewriting wire  stories, and laying out the pages.   She also

stated that  it was  her responsibility  to decide  which stories

would appear in  the paper.  She  testified that she  thought her

duties as an editor required imagination, creativity, and talent.

She  stated that decisions with  regard to legal  issues (such as

whether   a   story  was   potentially   libelous),  taste,   and

newsworthiness were all within her discretion.

            c.  Photographers                      c.  Photographers                                       

          Photographer Tom  Sobolik testified that 70  percent of

his work was assigned and that he had no input as to which photos

would be used in  the newspaper.  While Mr.  Sobolik acknowledged

that  there are  creative aspects  to photojournalism,  he stated

that  "a large  proportion of  it is  pretty run-of-the-mill  and

pretty standardized."

          Throughout the relevant period, Ken Williams spent most

of  his   time  shooting  sports,  exteriors   and  interiors  of

buildings,  and politicians.   Mr.  Williams testified  that more

than 50 percent of his time was spent in the developing of photos

in  the darkroom.  In Mr. William's opinion, "there's very little

                               -7-

news photography which is art" because "a news photographer tries

to  photograph reality,  as  it  happens, without  embellishment,

without taking sides."

          2.   The Experts' Testimony                    2.   The Experts' Testimony

          The  Secretary   offered  the  testimony   of  Ben   H.

Bagdikian,  Dean of  the  Graduate School  of  Journalism at  the

University of California at Berkeley ("Dean Bagdikian").  In Dean

Bagdikian's  opinion, the majority of journalists do not meet the

qualifications  for  professional  exemption  from  the  overtime

provisions  of the  FLSA.  He  distinguished journalism  from the

traditional professions, such as law and medicine, in which there

is  an  accumulated body  of knowledge  and  a canon  which every

practitioner is required  to know.   He stated  that there is  no

body of scholarly  work which  a journalist is  required to  know

before he may practice.   Rather, a journalist must  be a skilled

and accurate observer, have  good judgment, and be able  to write

clearly.

          Dean Bagdikian also testified  that journalism is not a

field in  which the employee's work product  depends primarily on

invention,  imagination,  or  talent.   In  his  view,  the  vast

majority of newspaper reporting centers around clear, disciplined

observation of public  events and people.   He further  testified

that although there have been significant and substantial changes

in the field of journalism, these changes do not warrant changing

the  definition  of  professional  or  changing  the  Secretary's

position regarding employees in the field of journalism.

                               -8-

          The  Monitor  offered  the testimony  of  Robert  Neale                                

Copple,  Dean of the College  of Journalism at  the University of

Nebraska at Lincoln ("Dean Copple").  Dean Copple  testified that

the current field of  journalism is vastly different than  it was

in the 1940's.  He  pointed out that nearly 90 percent  of modern

journalists have  college degrees.   In comparison,  he estimated

that only 30  percent of  newsroom employees in  the 1940's  were

college  graduates.  He further testified that, on the whole, the

journalism  done by  the staff  at The  Monitor was  creative and                                                         

thought-provoking, requiring both imagination and talent.

          3.  The Monitor's Overtime Policy                    3.  The Monitor's Overtime Policy                                   

          Coverage of  legislative sessions and  meetings of  the

city council often  caused the reporters assigned to these events

to  work more than forty hours weekly.  Although weekly timecards

were   collected  for   each  newsroom   employee,  The   Monitor                                                                           

discouraged overtime,  and suggested  that those who  worked more

than  40 hours should seek compensatory time in lieu of overtime.

That is, they were supposed to work fewer hours on the other days

of  the week  to reduce their  total weekly  hours to  forty.  At

least three of the witnesses who testified had been told by their

superiors  to alter the time cards submitted to reduce the amount

of  overtime hours  originally listed  therein.   Those employees

also testified that they  were occasionally reprimanded when they

did report overtime and  told to alter their weekly  timecards so

that no overtime hours would be included.

          On  other occasions,  time cards  for a  given employee

                               -9-

were  completed by  a co-employee, who  necessarily did  not have

accurate  information  as to  the  actual  hours worked  by  that

employee.   In light of these circumstances, many of the newsroom

employees did not bother  to prepare and file an  accurate record

of all hours, including overtime, worked weekly.

          Employees  did receive the compensation required by the

FLSA  for the overtime hours that they actually recorded on their

weekly time  cards.   Mike Pride, The  Monitor's editor-in-chief,                                                        

testified that  it was The Monitor's policy  to pay overtime.  He                                            

stated that overtime  was to be  authorized in advance,  whenever

possible,  but  that  the   overtime  was  always  paid,  whether

authorized or unauthorized.  Mr. Pride testified that this policy

existed to control the cost of overtime.

                      PROCEDURAL BACKGROUND                                PROCEDURAL BACKGROUND

          On  June 22,  1981, the  Secretary brought  this action

against  The   Monitor,  and   George  Wilson,   the  newspaper's                                

publisher.  The  complaint alleged that, since February  4, 1978,

the newspaper  had committed  willful violations of  the overtime

and  recordkeeping  provisions  of   the  FLSA,  and  that  these

violations  were continuing.   The  Secretary sought  a permanent

injunction against  the violations, and  an award of  back wages,

along with  interest and  liquidated damages.   Additionally, the

Secretary claimed that three years of back  pay were appropriate,

rather than the normal two, because The Monitor's FLSA violations                                                         

had been willful under 29 U.S.C.   255(a).

          In  its  answer,  The  Monitor  denied  the Secretary's                                                  

                               -10-

allegations  and  asserted as  an  affirmative  defense that  the

employees were exempt from the applicable regulations of the Act,

that any violation was the  result of good faith reliance on  the

Department's "interpretations and/or past rulings," and  that the

claims were time barred.

          The case  was tried to  the bench.  With  regard to the

alleged FLSA  violations at The Monitor,  the Secretary presented                                                 

the testimony  of Department of Labor  ("DOL") Compliance Officer

Scott  Wilkinson,  and  thirteen  reporters,  photographers,  and

editors  employed  by The  Monitor.   Throughout  the  trial, the                                            

Secretary  denied The  Monitor's  claim that  its employees  were                                        

exempt  professionals.   For  over  forty  years the  Secretary's

position,  set forth in non-binding departmental interpretations,

had  been  that  the  majority  of  journalists  are  not  exempt

professionals under  the FLSA.   The Secretary stood  behind this

position  and  presented expert  testimony  in support  of  it at

trial.    The  Secretary   also  attempted  to  present  employee

testimony concerning  alleged  FLSA violations  occurring at  The                                                                           

Monitor after January 26, 1980, the last day covered by the DOL's                 

investigation.   The Monitor objected to  this testimony, arguing                                      

that the Secretary could not enlarge its claims  without amending

its  complaint.    The   district  court  allowed  the  proffered

testimony  but  reserved a  final ruling  on  the matter  for its

opinion.

          In its  defense, The Monitor primarily  argued that the                                                

Secretary's   forty-year-old   journalism  interpretations   were

                               -11-

obsolete  and  did not  reflect  the rigors  and  complexities of

modern  journalism.  The Monitor  moved the court  to declare the                                          

interpretations  null and  void  and hold  that  the majority  of

modern journalists  qualify  as exempt  professionals  under  the

FLSA.  As a fallback position, The Monitor contended, albeit less                                                    

vigorously,   that  its   employees  were   exempt  professionals

regardless  of  whether  the  court  overturned  the  Secretary's

interpretations.    The Monitor  also  maintained  that any  FLSA                                         

violations it may have committed were not willful.

          Although the trial was  completed in 1986, the district

court  did  not  issue  its  opinion  and  final  judgment  until

November 3,  1993.3  The court found  that The Monitor's newsroom                                                                
                                                  

3   The Monitor contends  that the  seven year delay  between the                         
two-week  trial and  the decision  constitutes  reversible error.
This type of delay,  particularly in light of the  sparse factual
findings,  concerns us.   Not  only does  it affect  the parties'
rights to a speedy adjudication of their claims, it detracts from
the public perception of the judicial  system.  Nevertheless, The                                                                           
Monitor has failed  to enlighten us as  to how the delay  damaged                 
the  credibility of  the district  court's findings  or otherwise
prejudiced  The Monitor.  We are in agreement with the sentiments                                 
expressed  by the  Ninth  Circuit while  contemplating a  similar
delay:

            We are appalled by  the delay, but we are
            aware  of no case holding that a district
            court commits reversible error  by taking
            too long  to decide  a case.   Indeed, we
            doubt that appellate review could ever be
            an effective means of  enforcing district
            court  timeliness. .  .  . To  vacate and
            remand  a  decision  which  the  district
            court  has  spent several  years crafting
            hardly seems  a sensible means  to reduce
            delay.   To reverse  the decision on  the
            ground  of  delay  would  require  us  to
            presume    that   lengthy    deliberation
            inevitably  leads  to  mistake.  .   .  .
            Although  we  do  not  condone  the  long

                               -12-

employees were not entitled to the professional exemption of  the

Act's overtime requirements and awarded back wages and liquidated

damages to twelve employees.   However, the court found  that the

violations had  not  been committed  willfully  and  consequently

limited the damages to  the two-year period before the  filing of

the suit  rather than the three-year period applicable to willful

violations.  The  court refused to  award damages for  violations

occurring after the close  of the DOL's compliance investigation,

and it denied the Secretary's  request for a permanent injunction

against future violations.

          In   finding  that  the   employees  were   not  exempt

professionals,  the court  relied  on the  Secretary's journalism

interpretations as persuasive  authority.  These  interpretations

state in pertinent part:

            Newspaper  writing  of  the  exempt  type
            must,   therefore,    be   'predominantly
            original  and   creative  in  character.'
            Only   writing   which   is   analytical,
            interpretative  or highly  individualized
            is considered to be creative in nature. .
            .   .      Newspaper   writers   commonly
            performing  work  which  is original  and
            creative  within the  meaning of    541.3
            are   editorial    writers,   columnists,
            critics,  and   'top-flight'  writers  of
            analytical and interpretative articles.

            (2) The reporting of news,  the rewriting
                                                  

            delay,  we  are  not  willing  to  assume
            without  strong independent  support that
            the  district  court  departed  from  its
            proper  role  and  considered   only  the
            evidence that was easiest to recall.

Phonetele,  Inc. v. American Tel.  &amp; Tel. Co.,  889 F.2d 224, 232                                                       
(9th Cir.), cert. denied, 112 S. Ct. 1283 (1992).                                  

                               -13-

            of stories received from various sources,
            or  the  routine   editorial  work  of  a
            newspaper  is not  predominantly original
            and  creative  in  character  within  the
            meaning of   541.3 and must be considered
            as nonexempt work.

29 C.F.R.   541.303(f) (1975).4

          The  district court  rejected The  Monitor's contention                                                              

that the  interpretations should  be declared invalid  because of

their age.   Rather, the  court accepted  the interpretations  as

persuasive authority  of how to apply  the professional exemption

in  the  field  of  journalism.    Once  credited  as  persuasive

authority, the  Secretary's interpretations  all but decided  the

exemption issues.   The Monitor presented  little or no  evidence                                         

suggesting    that    its   employees    performed   "analytical,

interpretative  or  highly individualized"  work.    Nor did  The                                                                           

Monitor   aver  that  its   reporters  were  "editorial  writers,                 

columnists, critics,  and 'top-flight' writers  of analytical and

interpretative  articles."    The  Monitor  made  no  significant                                                    

attempt   to   differentiate   the   work   of   its   reporters,

photographers, and editors from the work done  at every newspaper

throughout the country.   The Monitor's trial strategy hinged  on                                               

its dogmatic attempt  to debunk the Secretary's  interpretations,

and  when this failed, its chances of prevailing on the exemption

issues dwindled.
                                                  

4   On October 9,  1992, the interpretive  regulations, 29 C.F.R.
  541.301,  541.302  and  541.303,  were   redesignated,  without
change,   as  29   C.F.R.      541.300,   541.301  and   541.302,
respectively.    57 Fed.  Reg.  46744 (1992).    We refer  to the
earlier codification  because it is used  throughout the parties'
briefs and the district court opinion.

                               -14-

          Following  the  entry  of   final  judgment,  both  the

Secretary  and The Monitor filed  timely notices of  appeal.  The                                    

Secretary  appealed  the   district  court's  finding  concerning

willfulness, its refusal  to issue an injunction, and its refusal

to  award damages for violations occurring after the close of the

DOL's   compliance  investigation.    The  Monitor  appealed  the                                                            

district  court's decision  that  its employees  were not  exempt

professionals.    The  Monitor's   appeal  reiterates  its  trial                                        

strategy  and   rests  primarily  on  the   contention  that  the

Secretary's   journalism   interpretations  have   been  rendered

obsolete by  the technological and  societal changes of  the last

forty years.  The  Newspaper Guild AFL-CIO filed an  amicus brief

in support of  the Secretary while  the Newspaper Association  of

America filed a brief supporting The Monitor.                                                      

                        STANDARD OF REVIEW                                  STANDARD OF REVIEW

          Appeals involving  pure questions of law  are generally

reviewed de  novo.  In  re extradition of Howard,  996 F.2d 1320,                                                          

1327 (1st  Cir. 1993) (citation  omitted).  In  contrast, appeals

involving straight  factual determinations require  us to  accept

the trier's resolution unless shown to be clearly erroneous.  Id.                                                                           

(citation omitted).

          The case  before us presents several  issues containing

mixed questions of fact  and law.   As we have previously  noted,

these  issues require a somewhat nuanced standard of review.  See                                                                           

id.  "[A]ppeals in  the federal court system are  usually arrayed             

along  a degree-of-deference  continuum, stretching  from plenary

                               -15-

review at one pole  to highly deferential modes of  review (e.g.,                                                                          

clear error, abuse  of discretion)  at the opposite  pole."   Id.                                                                           

The standard  of  review  we  apply to  mixed  questions  usually

depends  on  "where  they  fall  along   the  degree-of-deference

continuum: the more fact dominated the question,  the more likely

it  is that the trier's resolution  of it will be accepted unless

shown to be clearly erroneous."  Id. at 1328.                                              

                               -16-

                            DISCUSSION                                      DISCUSSION

          I.  The FLSA Exemptions                    I.  The FLSA Exemptions

            A.  The Statutory Framework                      A.  The Statutory Framework                                                 

          The  overtime  provisions  of  the  FLSA establish  the

general rule that  employees must  be compensated at  a rate  not

less  than  one and  one-half times  their  regular rate  for all

overtime hours.  29 U.S.C.    207(a)(1).  Overtime is  defined as

any employment in excess of  40 hours in a single workweek.   Id.                                                                           

However, these  overtime compensation provisions do  not apply to

"any employees employed in a bona fide executive, administrative,

or professional capacity  . . .  (as such  terms are defined  and

delimited from time to  time by regulations of the  Secretary [of

Labor] . . .)."  29 U.S.C.   213(a)(1).  The  employer in an FLSA

case bears  the  burden of  establishing that  its employees  are

exempt,  and   because  of  the  remedial  nature  of  the  FLSA,

exemptions are  to be  "narrowly construed against  the employers

seeking to  assert them  and their application  limited to  those

establishments  plainly and unmistakably  within their  terms and

spirit."  Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960);                                                

Secretary of Labor v. DeSisto, 929 F.2d 789, 797 (1st  Cir. 1991)                                       

(citations omitted).

          The specific requirements of the professional exemption

are not set  forth in the statute.   Rather, they are articulated

in  the regulations  and interpretations  of the Secretary.   The

Secretary's  regulations are promulgated  pursuant to  an express

delegation of legislative authority and must be given controlling

                               -17-

weight unless  they are  found  to be  arbitrary, capricious,  or

contrary to the statute.  See Chevron U.S.A. v. Natural Resources                                                                           

Defense Council, Inc., 467  U.S. 837, 843-44 (1984).   Unlike the                               

regulations,  however,  the Secretary's  interpretations  are not

conclusive, even  in  the cases  with which  they directly  deal.

Skidmore v.  Swift &amp; Co.,  323 U.S. 134, 139-40  (1944).  Rather,                                  

they merely set forth the official position of the DOL on how the

regulations    should   be   applied    in   specific   contexts.

Nevertheless,  the courts  may refer  to the  interpretations for

guidance.  See id.                            

          The  relevant legal guidelines  for determining whether

an employee  is  an  exempt  professional are  described  in  the

Secretary's  regulation   29  C.F.R.     541.3.     The  relevant

interpretations are set forth at 29 C.F.R.   541.301, 541.302 and

541.303.  The regulation enumerates several types of professional

exemptions,  two  of  which  are  relevant  here:  the  so-called

"learned professional" and "artistic professional" exemptions.

            1.  The Learned Professional Exemption                      1.  The Learned Professional Exemption

          The   learned   professional   exemption   deals   with

occupations   which   have  specific   educational  requirements,

including  law,  accounting, engineering,  architecture, nursing,

and medicine.   Reich v. Gateway  Press, Inc.,  13 F.3d 685,  698                                                       

n.15 (3d Cir. 1994).   The regulation states that  this exemption

applies  to employees  whose "primary  duty" consists  of "[w]ork

requiring  knowledge of  an  advance [sic]  type  in a  field  of

science or learning customarily acquired by a prolonged course of

                               -18-

specialized  intellectual instruction and study, as distinguished

froma general academic education. . . ." 29 C.F.R.   541.3(a)(1).

          The    interpretations    state   that    "[t]he   word

'customarily'  implies that  in the  vast majority  of  cases the

specific academic  training is  a prerequisite for  entrance into

the  profession."   29  C.F.R.    541.302(d).   Moreover,  "[t]he

typical symbol of  the professional training  and the best  prima

facie evidence of  its possession is, of course,  the appropriate

academic degree,  and in  these professions an  advanced academic

degree is a standard (if not universal) prerequisite."  29 C.F.R.

   541.302(e)(1).  The  interpretations specifically declare that

the  exemption  does  not  encompass  "such  quasi-professions as

journalism in which the bulk of the employees have acquired their

skill  by  experience  rather  than  by  any  formal  specialized

training."    29  C.F.R.    541.302(d).    Further,  "[n]ewspaper

writers,  with   possible  rare  exceptions  in   certain  highly

technical fields,  do not meet the  requirements of   541.3(a)(1)

for exemption  as professional employees of  the 'learned' type."

29 C.F.R.   541.303(f)(1).

            2.  The Artistic Professional Exemption                      2.  The Artistic Professional Exemption

          The artistic exemption applies to professionals working

in a "recognized field of artistic endeavor."  29 C.F.R.   541.3.

Exempt  artistic  professionals  may  be found  in  many  fields,

including  music,  writing,  the  theater, and  the  plastic  and

graphic arts.

          The  regulation outlines both a short and long test for

                               -19-

determining  whether   an  employee  qualifies  as   an  artistic

professional.  The  long test  is applied to  employees who  earn

weekly salaries of  at least $170 but less than  $250.  The short

test is used for  employees whose weekly salary is  not less than

$250.5   Both  tests demand  that the  employee's "primary  duty"

consist  of  work requiring  "invention,  imagination, or  talent

. . . ."   29 C.F.R.   541.3.   The long test  also requires that

the employee's primary  duty consist of "[w]ork that  is original

and creative in character . . . ."  29 C.F.R.   541.3(a)(2).

          The interpretations state that "[o]nly writing which is

analytical,  interpretive or highly  individualized is considered

to  be creative  in nature.  .  . .   Newspaper  writers commonly

performing work which is original and creative within the meaning

of   541.3 are editorial writers, columnists,  critics, and 'top-

flight'  writers of  analytical and  interpretive articles."   29

C.F.R.    541.303(f)(1).     With   regard  to   the  "invention,

imagination,    or    talent"   requirement,    the   Secretary's

interpretation says:

            In the case  of newspaper employees,  the
            distinction  here  is   similar  to   the
            distinction observed . . .  in connection
            with  the  requirement that  the  work be
            "original  and  creative  in  character."
            Obviously  the  majority of  reporters do
            work    which   depends    primarily   on
            intelligence,  diligence,  and  accuracy.
                                                  

5  As the Third Circuit noted, "[t]he short test was added to the
FLSA in 1949 in large part because the DOL felt that salary level
turned out to be  a good proxy for determination  of professional
status."   Gateway Press, Inc., 13 F.3d at 698 n.16.  That is, in                                        
the  DOL's judgment, higher salaried employees are more likely to
meet all the requirements of the exemption.  Id.                                                          

                               -20-

            It  is  the minority  whose  work depends
            primarily on  "invention, imagination, or
            talent."

29 C.F.R.   541.303(d).

                               -21-

            B.  The Authority of the Journalism Interpretations                      B.  The Authority of the Journalism Interpretations                                                                         

          The  Secretary's  journalism  interpretations have  not

changed  in any  material  respect since  1949,  long before  the

newspaper industry evolved  into its current  form.  The  parties

vigorously dispute what weight, if any, courts  should give these

interpretations when they apply the regulation.  The Monitor asks                                                                      

us to declare that  the interpretations are obsolete  and invalid

because they do not reflect the complexities and rigors of modern

journalism.  The Secretary  contends that the interpretations are

still  highly  relevant because  the  technological  and societal

changes of the last  forty years have not altered  the day-to-day

duties of the majority of reporters.

          This is the central issue on appeal.  Once the district

court  accepted  them  as persuasive  authority,  the Secretary's

interpretations were  nearly conclusive on the  exemption issues.

The  Monitor made  a  less extensive  effort  to prove  that  its                      

employees   performed   "analytical,  interpretative   or  highly

individualized" work.  The Monitor made no significant attempt to                                            

differentiate  the  work  of  its  reporters,  photographers, and

editors  from the  work done  at every  newspaper throughout  the

country.  Therefore, in light of The Monitor's trial strategy, if                                                      

we  decline to  invalidate  the  journalism interpretations,  the

record  will almost certainly  compel us  to affirm  the district

court's decision on the exemption issues.

          As   we   noted   above,   although   the   Secretary's

interpretations are not controlling, courts may refer to them for

                               -22-

guidance.   Skidmore  v. Swift  &amp; Co.,  323 U.S.  at 139-40.   In                                               

making a similar determination,6 the Supreme Court noted:

            [w]e    consider   that    the   rulings,
            interpretations   and  opinions   of  the
            Administrator under this  Act, while  not
            controlling upon the  courts by reason of
            their authority, do constitute a  body of
            experience and informed judgment to which
            courts and litigants may  properly resort
            for  guidance.    The  weight of  such  a
            judgment in a particular case will depend
            upon  the  thoroughness  evident  in  its
            consideration,   the   validity  of   its
            reasoning,  its consistency  with earlier
            and later pronouncements,  and all  those
            factors which give it power  to persuade,
            if lacking power to control.

Skidmore,  323  U.S.  at 140.    The  Monitor  contends that  the                                                       

district court  misapplied Skidmore.   Specifically, The  Monitor                                                                           

asserts that any reliance  on the Secretary's interpretations was

erroneous  because they  are "outdated,  inconsistent  with other

agency pronouncements, and contain vague and undefined terms."7
                                                  

6  In Skidmore,  the Supreme Court was evaluating  the persuasive                        
weight  of the opinions, interpretations, and rulings of the Wage
and Hour Administrator under the FLSA.

7   We  are  unpersuaded by  The  Monitor's contention  that  the                                                   
Secretary's  interpretations should have been disregarded because
they  are  inconsistent  with  other  agency  pronouncements  and
internally inconsistent.

   There  is no rule of law requiring an administrative agency to
give  a  term  the  same  definition  in  all  contexts.    "When
construing  the  FLSA  and  its exemptions,  courts  should  look
primarily  to  the  purpose   of  the  act  itself  --   and  not
interpretations  of  the same  or a  similar  term made  in other
contexts."  Reich v. Gateway Press, Inc., 13 F.3d at 699 n.17.                                                    
With  regard  to  the  assertion  that  the  interpretations  are
internally  inconsistent, we  follow the  reasoning of  the Third
Circuit:

            "We     also    reject     the    amicus'
            characterization  of  the interpretations

                               -23-

          As  a preliminary  matter, we  discuss the  standard of

review appropriate  for appellate scrutiny of  a district court's

Skidmore analysis.8   Although  we have not  previously addressed                  

this  issue, the Fifth Circuit  provides meaningful guidance.  In

Dalheim v.  KDFW-TV, a television station  charged with violating                             

the FLSA's overtime provisions made essentially the same argument

asserted  by  The  Monitor: that  "the  district  court gave  the                                    

interpretations  undue  weight,  thus   blinding  itself  to  the

realities of modern  broadcast journalism."  918  F.2d 1220, 1228

(5th  Cir. 1990).   The  Fifth Circuit  reasoned that  a district

court's Skidmore  analysis is  merely a fact-specific  inquiry to                          

                                                  

            as  being  'self-contradictory'   because
            they  state  that  'many'  reporters  are
            exempt   while  'many'  are   not.    The
            interpretations merely recognize that the
            determination of whether  a reporter is a
            professional does not depend on the title
            that a  paper gives a reporter.   Rather,
            it  instead  depends  upon  the  specific
            characteristics  of  a  given  reporter's
            job."

Id.             

8   There are, in  fact, two inquiries that  must be made  when a
court  is  determining   what  weight  should  be   given  to  an
administrative interpretation.   First,  a court will  declare an
interpretation  invalid   if  it   is  found  to   be  arbitrary,
capricious,  or  contrary   to  the  statute.    See   Martin  v.                                                                       
Occupational  Safety and Health Review  Comm'n, 499 U.S. 144, 158                                                        
(1991)  (holding  that  the  "Secretary's  interpretation  of  an
ambiguous  regulation   is  subject  to  the   same  standard  of
substantive review  as any other exercise  of delegated lawmaking
power."); Chevron U.S.A.  v. Natural  Resources Defense  Council,                                                                           
Inc., 467 U.S. 837, 843-44 (1984).  Second, the court applies the              
Skidmore analysis to determine  the level of deference  it should                  
accord a valid administrative interpretation.  Here, we  are only
concerned with the second  inquiry because neither party contends
that the Secretary's interpretations are invalid under the first.

                               -24-

determine whether  the interpretation reflects an  analogy useful

in  deciding the  case before  it.   Id.   Thus, any  "attempt to                                                  

debunk  the  analogy between  the  interpretation's  portrayal of

broadcasting and  journalism as  they existed  in the 1940's  and

broadcast journalism as it exists today is a veiled attack on the

district court's findings of fact."  Id.  Consequently, because a                                                  

district court's  Skidmore analysis  is fact-based, we  review it                                    

subject  to the  clearly erroneous  standard  of Federal  Rule of

Civil Procedure 52(a).

          Both the Secretary and The  Monitor presented extensive                                                       

expert  testimony as  to whether  the technological  and societal

changes of  the past forty  years have  rendered the  Secretary's

journalism interpretations obsolete.  The Secretary presented the

testimony  of  Ben  Bagdikian,  Dean of  the  Graduate  School of

Journalism  at   the  University   of  California   at  Berkeley.

Mr. Bagdikian testified that although the field of journalism has

changed  radically, these  changes do  not warrant  modifying the

Secretary's view that  most journalists do not  qualify as exempt

professionals under  the FLSA.   In  his view,  the focus  of the

majority of  journalists is the same today  as it was forty years

ago:   to report disciplined  observations of  public people  and

public events.  This  testimony essentially ends appellate review

of  the matter.  It was neither severely impeached nor inherently

implausible,  and  "[o]nce credited,  it  supported  the district

court's rationale  almost  singlehandedly."   Rivera-G mez v.  de                                                                           

Castro,  900 F.2d  1, 4  (1st Cir. 1990).   Although  The Monitor                                                                           

                               -25-

presented conflicting testimony, the district court's decision to

accept the interpretations as persuasive authority cannot be said

to be clearly erroneous.9

            C.  The Professional Exemptions                      C.  The Professional Exemptions                                                     

          Whether The Monitor's employees are within the scope of                                       

the FLSA professional exemption  is a mixed question of  fact and

law.  Gateway  Press, Inc., 13  F.3d at 691.   In reviewing  this                                    

issue,  we elect to follow the Fifth Circuit's approach, in which

the  appellate court separates out the questions of fact from the

ultimate  legal  conclusion  and  applies   a  clearly  erroneous

standard to the  former while exercising plenary  review over the

latter.  Dalheim, 918 F.2d at 1226.                          

          As the  Fifth Circuit  noted, there are  three distinct

types of findings involved in determining whether  an employee is
                                                  

9  The Monitor  also contends that the district  court mistakenly                        
confused  a  Wage  and Hour  Administrator's  interpretation,  29
C.F.R.    541.303, with the  Secretary of Labor's  regulation, 29
C.F.R.    541.3, and  thus applied  incorrect legal  standards in
determining that The Monitor's employees were not exempt from the                                      
overtime provisions of the FLSA.  We    find   this    contention
completely  without  merit.    As we  noted  above,  the district
court's  Skidmore   analysis  and  subsequent   reliance  on  the                           
Secretary's interpretations were not in error.  Our review of the
record and  the district  court's opinion  indicates that  it was
well  aware  of  the  distinction  between  the  regulations  and
interpretations.   Indeed,  the district  court's  opinion quotes
from Skidmore immediately  prior to its refusal to  disregard the                       
Secretary's interpretations.  Reich v. Newspapers of New England,                                                                           
Inc., 834 F. Supp. 530, 535 (1993).  The only evidence supporting              
The  Monitor's contention is  the fact that  the district court's                      
opinion incorrectly refers to the interpretations as regulations.
See,  e.g., id.  at 534-35.   These misstatements,  considered in                         
light of the  record and the district  court's Skidmore analysis,                                                                 
do   not  indicate   that   the  district   court  confused   the
interpretations  and regulations.  Rather, this  is more likely a
matter   of   miscitation  than   an   indication   of  a   basic
misunderstanding.

                               -26-

exempt.    Id.   First,  the  district  court  makes findings  of                        

historical fact, regarding, for example, the day-to-day duties of

the  employees.   Id.   These  are  reviewed under  the  "clearly                               

erroneous"  standard of  Federal Rule  of Civil  Procedure 52(a).

Id.; see also Icicle  Seafoods v. Worthington, 475 U.S.  709, 714                                                       

(1986); Donovan v. Burger King Corp., 672 F.2d 221, 227 (1st Cir.                                              

1982).    Second,  to  apply  the  Secretary's  regulations,  the

district court  must draw conclusions from  the historical facts.

Dalheim,  918 F.2d at 1226.   For example,  whether an employee's                 

work  requires  "invention, imagination,  or talent"  and whether

such  work   constitutes   an  employee's   "primary  duty"   are

conclusions drawn from historical  facts.   Id.   Such inferences                                                         

are also  subject to  the clearly  erroneous standard of  review.

Id.    Lastly,  the  district  court  makes  the  ultimate  legal             

conclusion  of whether an employee  is exempt.   Although this is

based  on both historical facts  and factual inferences,  it is a

conclusion of law, over  which we exercise plenary review.   Id.;                                                                          

see also Icicle Seafoods,  475 U.S. at 714; Gateway  Press, Inc.,                                                                          

13 F.3d at 691.

          Although  the determination  of whether an  employee is

exempt is  clearly tied to  the district court's  factfinding, we

are  acutely aware of our  duty to canvas  the record thoroughly.

Further, we review the district  court's decision to ensure  that

its  factfinding was guided by the proper legal standards.  "[T]o

the extent  that  findings of  fact  can be  shown to  have  been

predicated  upon,  or induced  by, errors  of  law, they  will be

                               -27-

accorded diminished  respect on  appeal."   Dedham  Water Co.  v.                                                                       

Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).                                      

            1.  Artistic Professional Exemption                      1.  Artistic Professional Exemption

          As we discussed above, 29 C.F.R.    541.3 outlines both

a  short and  long  test  for  determining  whether  an  employee

qualifies  as an artistic professional.  The long test is applied

to employees who  earn weekly salaries of at least  $170 but less

than $250.   The short test  is used for  employees whose  weekly

salary is not less than $250.

          Although the  long  test has  many requirements,10  the
                                                  

10    The  long test  exempts  as  an  artistic professional  any
employee:

            (a)  Whose primary  duty consists  of the
            performance of:
                              . . .
            Work that  is  original and  creative  in
            character  in  a   recognized  field   of
            artistic  endeavor  (as  opposed to  work
            which can be produced by a person endowed
            with   general  manual   or  intellectual
            ability and training),  and the result of
            which depends primarily on the invention,
            imagination, or talent  of the  employee;
            and

            (b)  Whose  work requires  the consistent
            exercise  of  discretion and  judgment in
            its performance;  and

            (c)    Whose   work    is   predominantly
            intellectual and varied in  character (as
            opposed   to   routine  mental,   manual,
            mechanical, or  physical work) and  is of
            such character that  the output  produced
            or  the  result  accomplished  cannot  be
            standardized  in  relation  to   a  given
            period of time; and

                               -28-

most  significant for  our analysis are  that (1)  the employee's

primary  duty consist of "[w]ork that is original and creative in

character in  a recognized field  of artistic  endeavor" and  (2)

"the  result  of  which   depends  primarily  on  the  invention,

imagination, or  talent of the  employee . .  . ."   29 C.F.R.   

541.3(a)(2); see Gateway Press, Inc., 13 F.3d at 698.                                              

          The short  test for determining whether  an employee is

exempt as an artistic  professional is more simple.   It requires

only that the employee's primary  duty consist of "work requiring

invention,  imagination,  or  talent  in a  recognized  field  of

artistic  endeavor . .  . ."   29 C.F.R.    541.3(e); see Gateway                                                                           

Press, Inc., 13 F.3d at 698.  The short test does not include the                     

requirements of 29 C.F.R.    541.3(b), (c) and  (d) and does  not

require  that the work  be "original and  creative in character."

As the Third Circuit  noted, "[w]hile the tests are  not all that

different,  it seems  clear  that  any  employee  who  is  not  a

professional under the short test will not be one  under the long

test."  Gateway Press, Inc., 13 F.3d at 698.                                     

            a.  Short Test Employees                      a.  Short Test Employees

          The  Monitor   maintains   that  the   district   court                                

erroneously applied  the long test for  artistic professionals to
                                                  

            (d)  Who does  not  devote more  than  20
            percent  of  his  hours  worked   in  the
            workweek to activities  which are not  an
            essential   part   of   and   necessarily
            incident   to   the  work   described  in
            paragraphs  (a)  through   (c)  of   this
            section . . . .

29 C.F.R.   541.3 (1975).

                               -29-

three reporters -- David Olinger, Charles Stein, and Paul Carrier

--  whose weekly  salary qualified  them for  analysis under  the

short  test.    The  Monitor  contends  that  the district  court                                      

incorrectly   required  that  the   newspaper  writing  of  these

employees be "'predominantly original and creative in character'"

when  the correct  standard merely  required that  the employee's

"primary duty" consist of "work requiring invention, imagination,

or talent in a recognized field  of artistic endeavor."  Reich v.                                                                        

Newspapers  of New England, Inc.,  834 F. Supp.  530, 537 (D.N.H.                                          

1993).  The Monitor claims that this was reversible error because                             

the district court erroneously required these employees to meet a

much more difficult standard.

          The district  court's opinion suggests that  it did not

specifically apply  the  short test  to  those employees  of  The                                                                           

Monitor  with weekly salaries above $250.  However, as we discuss                 

below,  our  review of  the record  against  the backdrop  of the

Secretary's interpretations leads us to conclude that these three

employees do  not qualify as exempt  artistic professionals, even

under  the short  test.   Therefore, even  if the  district court

erroneously  applied  the "original  and  creative in  character"

requirement of the long test, this error was harmless.

          The  relevant portion of the  short test requires us to

determine (1) the employee's "primary duty," and  (2) whether the

performance  of  that duty  requires "invention,  imagination, or

talent."  Because the  Secretary stipulated that writing  was the

primary  duty of  these employees,  the  only issue  remaining is

                               -30-

whether   their  writing  required  "invention,  imagination,  or

talent."    With  regard  to  the  "invention,   imagination,  or

talent" requirement, the Secretary's interpretation says:

            In the case  of newspaper employees,  the
            distinction  here  is   similar  to   the
            distinction observed . . .  in connection
            with  the  requirement that  the  work be
            "original  and  creative  in  character."
            Obviously  the  majority of  reporters do
            work    which   depends    primarily   on
            intelligence,  diligence,  and  accuracy.
            It is  the  minority whose  work  depends
            primarily on  "invention, imagination, or
            talent."

29 C.F.R.   541.303.11  The  district court found, and we  agree,

that The Monitor employees did not fulfill this requirement.                          

          The record  demonstrates that the  day-to-day duties of

these three reporters consisted primarily of "general assignment"

work.  Among other things,  their stories covered public  utility

commission hearings; criminal and police activity; city and state
                                                  

11  We follow the reasoning of the Third Circuit's Gateway Press,                                                                           
Inc.  opinion and  reject the  argument that  the interpretations              
only apply to the long test:

            "Although  this   interpretation  of  the
            phrase   'invention,   imagination,    or
            talent' seems  to refer to the  phrase as
            it is used in [the long test] rather than
            as it is used  in [the short test], there
            is nothing  to suggest that such a phrase
            has  a  different  meaning  in   the  two
            different   parts  of   the  regulations.
            Indeed,   as   a   matter  of   statutory
            construction,  where one word  is used in
            one   place,  it  should  have  the  same
            meaning  in  another  place in  the  same
            statute . . . There is no reason to think
            that  this  principle should  not equally
            apply to regulations."   Reich v. Gateway                                                               
            Press,   Inc.,  13   F.3d  at   700  n.18                                   
            (citations omitted).

                               -31-

legislative proceedings; business  events, including compiling  a

list  of  people who  had been  promoted;  and local  art events.

Rarely were  they asked to  editorialize about  or interpret  the

events  they covered.  Rather, the focus of their writing was, as

David Olinger phrased  it, "to  tell someone who  wanted to  know

what happened . . . in a quick and informative and understandable

way."   Thus,  we  believe that  these  reporters were  like  the

majority  of reporters in  that their work  "depends primarily on

intelligence,  diligence, and  accuracy."   29 C.F.R.    541.303.

They  were not performing duties  which would place  them in that

minority  of   reporters   "whose  work   depends  primarily   on

'invention,  imaging [sic], or talent.'"   Id.   Although some of                                                        

the  work  product of  these  employees demonstrated  creativity,

invention, imagination, and talent, their writing did not exhibit

these qualities on a day-to-day basis.12

          Of course, our decision should not be read to mean that

all journalism work is nonexempt.  The field of newspaper writing

is  certainly a medium capable of sustaining creativity.  We want

to reiterate  that whether an employee is  an exempt professional

is  independent  of  the  title  the  employer  ascribes  to  the

position.   As  the  interpretations point  out, "[t]he  field of

                                                  

12  The issue  of whether an  employee is an exempt  professional
forces  the opposing  parties  into paradoxical  positions:   The
management  argues  that  the  employee's work  is  distinct  and
creative,  and  thus does  not  merit  overtime pay;  the  worker
maintains  that  he deserves  overtime  pay because  his  work is
routine and non-specialized.  Both parties are compelled  to make
arguments   contrary  to  their   customary  economic  bargaining
positions.

                               -32-

journalism . . .  employs many exempt  as well as many  nonexempt

employees under the  same or  similar job titles."   29 C.F.R.   

303(f).   The determination of whether the exemption applies to a

given employee depends on the specific duties and characteristics

required  by the position rather than its actual title.  However,

"if we were to find that [these] reporters are in the minority of

reporters whose  work requires invention, imagination, or talent,

it is  hard to see what reporters would be left in the majority."

Gateway  Press, Inc.,  13  F.3d  at  700;  cf.  Sherwood  v.  The                                                                           

Washington Post, 677  F. Supp.  9, 11 (D.D.C.),  rev'd, 871  F.2d                                                                

1144 (D.C. Cir.  1989) (The court found  that 13 writers for  The                                                                           

Washington  Post  qualified   as  exempt  artistic  professionals                          

because   their   writing  was   individual,   interpretive,  and

analytical;  because  success at  The  Post  requires a  "special                                                     

talent"; and because they  "produce original and creative writing

of high quality  within the meaning  of the regulations  . . . ."

Although this case was reversed because factual disputes rendered

disposition  on  summary  judgment  inappropriate,  it serves  to

highlight the distinction between exempt and non-exempt newspaper

work.).13
                                                  

13   The district court recently concluded trial and released its
opinion in Sherwood, holding that Sherwood was an exempt employee                             
because  his  reporting  job  at  The  Washington  Post  required                                                                 
invention, imagination,  and talent.  Sherwood  v. The Washington                                                                           
Post, Civil Action No. 86-2701.  Without passing on the merits of              
this  decision, we note that  it is distinguishable  on its facts
from  the  present  case.    Most  notably,  the  Sherwood  court                                                                    
distinguished the work of  reporters at The Washington  Post from                                                                      
the type of small  town reporting addressed by the  Third Circuit
in  Gateway  Press, Inc..    Thus,  the  district court's  second                                  
opinion  in Sherwood  again  highlights  the distinction  between                              

                               -33-

            b.  Long Test Employees                      b.  Long Test Employees

          The  Monitor  also  contends that  the  district  court                                

misapplied   the  long   test,   and  consequently,   erroneously

determined  that the remainder of  The Monitor employees at issue                                                        

in  this case were  not exempt professionals.   Specifically, The                                                                           

Monitor  contends that  the  record demonstrates  that the  staff                 

writers,  photographers, and  editors at  The Monitor  qualify as                                                               

exempt artistic professionals under  a correct application of the

regulation.  We disagree.

          As we noted above, the district court's reliance on the

Secretary's  interpretations  was  not  erroneous.     Therefore,

because we  find that the  district court conducted  its analysis

within the correct legal framework, we review its factfinding for

clear error.

            i.  Staff Writers:                      i.  Staff Writers:

          With regard  to the  staff writers salaried  below $250

per week, their day-to-day  responsibilities were very similar to

those of the staff  writers discussed above.  For  example, staff

writer  Margaret  Burton  testified  that three  fourths  of  her

stories  covered hard news, such as the proceedings of the school

board, educational issues, trials and court hearings, as  well as

the  legislative hearings.  She estimated that only one fourth of

her  writing  constituted  feature  writing   requiring  in-depth

interpretation or analysis.

          Staff writer  Sharon  Goss testified  that  during  her
                                                  

exempt and non-exempt work in the field of journalism.

                               -34-

first year at the paper, she spent approximately sixty percent of

her time writing what  she called feature stories.  The topics of

these  stories were  usually  assigned by  an editor,  and rarely

demanded  the  imagination,  interpretation,  or  invention  that

characterizes exempt  newspaper writing.14   The remaining  forty

percent was  divided between "deadline work"  and clerical tasks,

such  as  compiling  local movie  listings.    During the  latter

portion  of her tenure at The Monitor, as an educational reporter                                               

and  a  regional reporter,  she  covered  educational issues  and

government and town planning meetings.

          Staff writer Randall Keith testified that the vast bulk

of his first year at The  Monitor was spent working the city hall                                           

beat.   His second year  was divided between  covering the police

beat and  business  writing.   His  third  year was  spent  as  a

regional  reporter,   covering  town  meetings   and  activities.

Overall,  he described his day  to day duties  as being primarily

the type of  general assignment work which could  be accomplished

by anyone with general intellectual training and ability.

          As these  examples make clear,  the employees  salaried

below $250  had substantially the same  responsibilities as those

reporters,   discussed   above,   with   salaries   above   $250.

Consequently, we find  that the record contains ample support for

the  district court's  conclusion that  these reporters  were not

                                                  

14  For instance, one story reported on the local attitude toward
the rising price  of hamburgers.   Another story, on a  local man
who had just opened  an art store, centered on  his business, his
goods, and whether he thought it would succeed.

                               -35-

performing  the  type of  work that  would  qualify them  for the

artistic  professional exemption.    Rather,  like their  higher-

salaried counterparts,  they were like the  majority of reporters

in that their work "depends primarily on intelligence, diligence,

and accuracy."  They were not performing duties which would place

them in  that minority of reporters "whose work depends primarily

on 'invention, imaging [sic], or talent.'"

            ii.  Photographers:                      ii.  Photographers:

          We  also  find ample  support  in  the record  for  the

district court's conclusion that the photographers at The Monitor                                                                           

were not performing exempt work.   Staff photographer Tom Sobolik

testified that most of his film  was shot at sporting events.  He

also listened to the police radio and photographed any newsworthy

events  it   reported,  including   auto  accidents  and   fires.

Approximately seventy  percent of  Tom Sobolik's  photography was

assigned.  Further,  he testified  that although  there are  some

creative aspects to his photography, "a large proportion of it is

pretty run of the mill and pretty standardized."

          Ken  Williams  testified  that  he spent  most  of  his

picture-shooting time photographing  sporting events, the  pet of

the week,  interiors and exteriors of  buildings, press meetings,

and meetings with the Governor.  He also spent a  large amount of

time in the  darkroom developing  the pictures he  and the  other

photographers had shot.   He conceded that the darkroom  work and

the  majority of his photography did not, in his mind, constitute

artistic work.

                               -36-

          The  testimony  of these  photographers  indicates that

they, like the  staff writers,  were not performing  the type  of

photographic  work which  would qualify  them under  the artistic

exemption.15

            iii.  Editors:                      iii.  Editors:

          The Monitor asserts that the district court erroneously                               

ruled that  three editors were not  exempt artistic professionals

under  the long test despite the Secretary's concession that they

were  exempt under the short  test.  Because  this contention has

absolutely no basis in the record, we reject it.

          Admittedly,  the  Secretary  concluded  that  the three

editors  at issue  --  Sharon Goss,  Nancy  Druelinger, and  Lila

Locksley  -- qualified  for  exemption once  their salaries  rose

above  $250.  Having so concluded, however, the Secretary did not

pursue,  and the court did  not award, back  wages for the period

during  which  these  employees were  paid  over  $250 per  week.

Rather,  the court  concluded that  before their  weekly salaries

rose  above $250,  these editors  were not  performing work  that

qualified  them for  exemption under the  long test  for artistic

professionals,16 which requires  that their primary  duty consist
                                                  

15   The  Monitor contends  that  the district  court erroneously                           
applied  the long test to  Ken Williams, whose  weekly salary was
above $250.  The opinion does not conclusively indicate what test
was  applied to  Ken Williams.   Nevertheless,  we find  that the
error, if indeed there was one, was harmless.  The work performed
by  Mr.  Williams did  not  require  "invention, imagination,  or
talent," and thus is not exempt, even under the short test.

16  The Monitor's  brief suggests that there is  an inconsistency                         
between the  Secretary's decision  not to pursue  back wages  for
editors paid over $250 per week and the district court's decision

                               -37-

of "[w]ork that is original and creative in character" and "which

depends primarily on the invention, imagination, or talent of the

employee . . . ."  29 C.F.R.   541.3(a)(2).

          We find this  conclusion to have  ample support in  the

record.  Ms. Locksley testified that her main duties were reading

wire  stories  for   grammatical  and  factual   errors,  writing

headlines,  and  making improvements  so  that  the stories  were

shorter  or  more  readable.    Ms.  Druelinger  offered  similar

testimony,  stating  that most  of  her  time was  spent  writing

headlines, reading  over and  rewriting wire stories,  and laying

out  the   pages.17     Ms.  Goss's  testimony   was  comparable.

Overall, their day-to-day work was the type of  routine editorial

work  that is generally considered  non-exempt.  See  29 C.F.R.                                                                

541.303(f)  (The  reporting of  news,  the  rewriting of  stories

received from various sources, or the routine editorial work of a

newspaper is not predominantly original and creative in character

within the meaning of   541.3 and must be considered as nonexempt

work.).
                                                  

that the lower paid editors  were not exempt under the long  test
for artistic  professionals.  Once  again, The Monitor  is wrong.                                                                
The Secretary determined that the higher paid editors were exempt
under the executive  exemption 29 C.F.R.   541.1 -- not the short
test for artistic professionals.

17   Admittedly,  layout and  page design  can qualify  under the
artistic  professional   exemption.    In  fact,   the  Secretary
concluded  that  Tom Chants,  an editor  at  The Monitor,  was an                                                                  
exempt artistic professional.  However,  as Druelinger testified,
Chants's work was considerably different  from the work that she,
Ms.  Locksley, and Ms.  Goss performed:  "Tom  Chants, he did the
beautiful art work pages.   He was able to take lots of  time and
did not  do the breaking  news.  He  did the beautiful  features,
layouts and fill.  He had a lot more time to do his pages."

                               -38-

            2.  The Learned Professional Exemption                      2.  The Learned Professional Exemption

          The  district  court  also   held  that  The  Monitor's                                                                         

journalists  did  not  qualify  under  the  learned  professional

exemption of 29 C.F.R.   541.3.  In  a footnote to its brief, The                                                                           

Monitor  joins  its  amici  supporters in  contending  that  this                 

determination was error.

          Exempted learned professions  include law,  accounting,

engineering,  architecture, nursing,  and  medicine.   29  C.F.R.

  541.302.   The  Monitor would  have us  add journalism  to this                                   

list, arguing that  most of its  employees had either  journalism

degrees or liberal arts degrees with an emphasis on writing.

          The learned professional exemption applies to employees

whose "primary  duty" consists of "[w]ork  requiring knowledge of

an  advance  [sic]  type  in  a  field  of  science  or  learning

customarily  acquired  by  a   prolonged  course  of  specialized

intellectual  instruction  and  study, as  distinguished  from  a

general academic education . . . ."  29 C.F.R.   541.3(a)(1).  As

the interpretations make clear, "[t]he word 'customarily' implies

that in the vast majority of cases the specific academic training

is a prerequisite for  entrance into the profession."   29 C.F.R.

  541.302(d).  Further, "[t]he typical symbol of the professional

training  and the best prima facie evidence of its possession is,

of  course,  the  appropriate   academic  degree,  and  in  these

professions  an advanced  academic degree  is a standard  (if not

universal)  prerequisite."    29  C.F.R.    541.302(e)(1).    The

interpretations specifically  state that the  exemption does  not

                               -39-

encompass "such quasi-professions as journalism in which the bulk

of the employees  have acquired their skill  by experience rather

than   by  any  formal  specialized  training."     29  C.F.R.   

541.302(d).

          While we acknowledge that these interpretations are not

controlling, we join the  substantial number of courts that  have

chosen to follow them on  this issue.  See, e.g.,  Gateway Press,                                                                           

Inc., 13  F.3d at 698 (holding  that the "case law  has held that              

reporters  do   not  come  within   the  scope  of   the  learned

exemption");  Sun Publishing  Co. v. Walling,  140 F.2d  445 (6th                                                      

Cir.),  cert.   denied,  322  U.S.  728   (1944)  (rejecting  the                                

contention that writers and reporters are learned professionals);

Dalheim v. KDFW-TV, 706 F. Supp. 493, 501-02 (N.D. Tex.) (holding                            

that  despite  the  fact  that many  broadcast  journalists  hold

undergraduate  degrees  and  adhere  to an  established  code  of

ethics, they  are not learned professionals  because, inter alia,                                                                          

their  training  is  more  akin  to  an  apprenticeship  than  to

intellectual instruction  and study), aff'd, 918  F.2d 1220, 1226                                                     

(5th Cir. 1990); Freeman v. National Broadcasting Co., Inc.,  846                                                                     

F.  Supp. 1109,  1154-55  (S.D.N.Y. 1993)  (In  holding that  the

broadcast journalists  were not exempt learned professionals, the

court  noted  that journalism  interpretations  remain persuasive

despite their age because, inter alia, "experience and on-the-job                                               

training  still play  a  substantial  role  in  the  training  of

journalists . . . .").

          In  upholding the  district  court's finding  that  the

                               -40-

journalists  at  The Monitor  do  not qualify  under  the learned                                      

professional exemption,  we note that  many experts in  the field

believe  that journalism  can  only be  learned  in the  newsroom

itself.   No  particular academic  degree is  a  prerequisite for

entrance  into  the  field  and applicants  are  not  required to

demonstrate mastery over a  specific body of knowledge.   Rather,

as Dean Bagdikian from  the Graduate School of Journalism  at the

University of  California at  Berkeley testified,  editors hiring

entry-level  journalists are  mainly concerned  with whether  the

applicant's writing samples  demonstrate accuracy,  intelligence,

and an  ability to  write clearly.   Applicants  possessing these

qualities  are the most likely to  absorb the on-the-job training

and  become successful  journalists.   The  importance of  actual

newspaper  experience  as  opposed   to  journalism  courses   is

demonstrated  by the  fact that  top-flight newspapers  generally

hire  only  experienced applicants  with  demonstrable journalism

skills.  See  Sherwood, 677 F.  Supp. at 11.   In light of  these                                

considerations, we agree with the district  court's determination

that  the journalists  at  The  Monitor  are not  exempt  learned                                                 

professionals.

            3.  Rule 52(a) Findings of Fact                      3.  Rule 52(a) Findings of Fact                                                     

          The Monitor  asserts that  we must vacate  the judgment                               

and remand the case to the district court for its alleged failure

to make the findings  of fact required by  Federal Rule of  Civil

Procedure  52(a).   Rule  52(a) requires  that "[i]n  all actions

tried upon the  facts without a jury  . . . the  court shall find

                               -41-

the facts  specially and state separately its  conclusions of law

thereon . . . ."   Fed.  R. Civ.  P. 52(a).   We have  previously

noted,  however, that the  purpose of the rule  is to apprise the

appellate court of the grounds on which the trial court based its

decision.     Applewood  Landscaping  &amp;  Nursery   Co.,  Inc.  v.                                                                       

Hollingsworth,  884 F.2d  1502,  1503 (1st  Cir. 1989)  (citation                       

omitted).  Therefore,  findings are  sufficient so  long as  they

"indicate the factual basis for the ultimate conclusion."  Kelley                                                                           

v. Everglades Drainage District,  319 U.S. 415, 422 (1943).   The                                         

"'judge need  only make  brief, definite, pertinent  findings and

conclusions upon the contested matters; there is no necessity for

over-elaboration  of  detail  or  particularization  of  facts.'"

Applewood  Landscaping, 884 F.2d at 1503 (quoting Fed. R. Civ. P.                                

52(a), advisory committee's note to 1946 Amendment).  "As long as

such 'brief' and 'pertinent' findings are made and 'the record as

a whole supports the  district court's findings of fact,'  we can

affirm its result."   Id. at 1503 (citations omitted).   Further,                                   

even where the district court's findings were poorly done because

they consisted  "mainly of mere conclusions  . . . and  [did] not

articulate   specific  factual   bases  for  the   trial  court's

boilerplate  decision," there  was no  Rule 52(a)  defect because

"despite  the factual  shortcomings,  the basis  for the  court's

decision  is  clear  [and   the]  record  gives  substantial  and

unequivocal  support  for  the  ultimate  conclusion."    Unt  v.                                                                       

Aerospace  Corp., 765 F.2d 1440, 1444 (9th Cir. 1985), cited with                                                                           

approval in Applewood  Landscaping, 884  F.2d at 1504.   We  have                                            

                               -42-

also  noted that  anemic factual  findings are  not fatal  to the

decision so long as a complete understanding of the issues may be

had from the record  on appeal.  Applewood Landscaping,  884 F.2d                                                                

at 1504 (citations omitted).

          After reviewing  both the  record and the  opinion with

these principles in mind,  we conclude that the district  court's

findings of fact are adequate.  The Monitor's position throughout                                                     

the trial, put forth  by its expert witnesses and  its editor-in-

chief,  was  that the  technological  advances  in the  field  of

journalism  had rendered the Secretary's interpretations obsolete

and that most,  if not  all, employees  in the  field today  were

exempt professionals.  The Monitor tried to highlight the changes                                            

in the newspaper business  brought about in the last  forty years

and  explain how these  changes had undermined  the pertinence of

the Secretary's  interpretations.   The district  court's opinion

makes  it clear  that  it  simply  did  not  find  this  evidence

sufficient   to   render   the    interpretations   inapplicable.

Newspapers of New England, Inc., 834 F. Supp. at 535-36.                                         

          Once   the  district  court  accepted  the  Secretary's

interpretations as persuasive authority, the rest of its decision

was  all  but determined.   The  Monitor  presented little  or no                                                  

evidence suggesting that  the employees at  issue fell into  that

minority  of reporters  whose  work was  dependent on  invention,

imagination, or  talent.  The Monitor made no significant attempt                                               

to differentiate  the work  of its reporters,  photographers, and

editors  from the  work done  at  every newspaper  throughout the

                               -43-

country.   Given this framework, the  district court's admittedly

meager findings of  fact provide an adequate  basis for appellate

review.  Between the opinion  and the record, we have garnered  a

thorough understanding of  the proceedings below, and that is all

that Rule 52(a) requires.

          II.  The Willfulness of the FLSA Violations                    II.  The Willfulness of the FLSA Violations

          The  FLSA  imposes  a two-year  statute  of limitations

unless the  violations are shown to  be willful, in which  case a

three-year period  applies.  29 U.S.C.    255(a).  In the present

case,  the district court found  that the FLSA  violations at The                                                                           

Monitor were not willful and thus awarded back wages for only the                 

two-year  period before the suit was filed rather than the three-

year period claimed by the Secretary.  The Secretary asserts that

The  Monitor's FLSA violations  were indeed willful  and that the                      

district court's determination to the contrary was in error.

          FLSA violations are willful where the employer "knew or

showed reckless disregard  for the matter of whether  its conduct

was prohibited by the statute."  McLaughlin v. Richland Shoe Co.,                                                                          

486 U.S. 128,  133 (1988).  Whether an FLSA  violation is willful

is a mixed question of  law and fact and is therefore  subject to

the clearly erroneous standard of Federal Rule of Civil Procedure

52(a).   See McLaughlin v. Hogar San  Jos , Inc., 865 F.2d 12, 14                                                          

(1st Cir.  1989)  (holding that  whether  an FLSA  violation  was

committed in good  faith is a mixed question of  law and fact and

is  therefore  reviewed  only  for  clear error).    Appealing  a

district court's finding on a mixed question "is an uphill battle

                               -44-

as  Congress has  in unambiguous  language expressly  granted the

primary decisional power  in this respect to  the district court,

not  to  the  Secretary  or  the  courts  of appeal."    See  id.                                                                           

(citations omitted).    The clearly  erroneous standard  "plainly

does not entitle a reviewing court  to reverse the finding of the

trier  of fact simply because it  is convinced that it would have

decided  the  case differently."   Anderson  v. City  of Bessemer                                                                           

City, North Carolina,  470 U.S.  564, 573 (1985).   Rather,  "[a]                              

finding is 'clearly erroneous' when although there is evidence to

support  it, the reviewing court  on the entire  evidence is left

with the definite  and firm  conviction that a  mistake has  been

committed."   United States v. United States Gypsum Co., 333 U.S.                                                                 

364,  395 (1948).    Where the  evidence  is susceptible  of  two

plausible  interpretations, the  trier of  fact's  choice between

them cannot be clearly erroneous.  Anderson v. Bessemer City, 470                                                                      

U.S. at 574 (citations omitted).

          Based upon our review  of the record, we find  no clear

error  in the district court's  finding that The  Monitor did not                                                                   

willfully  violate the  overtime provisions of  the FLSA.18   The
                                                  

18  In pertinent part, the district court's opinion states:

            While  it  is  here  arguable   that  the
            defendants were unreasonable in  not more
            strictly  policing  the  accuracy of  the
            time  cards,  the  preponderance  of  the
            evidence  does not support a finding that
            they   acted   recklessly.      This   is
            particularly   true   in  light   of  the
            closeness  of  the findings  in  the more
            recent  cases  concerning exemptions  for
            those who write and edit for the media.

                               -45-

Secretary  did  present plausible  arguments  in  support of  his

position.  The Secretary argued  that the violations were willful

and could not have been the product of  ignorance because the DOL

explained the  overtime and recordkeeping provisions  of the FLSA

during  its 1974 investigation  of the  newspaper.   Further, the

fact  that The  Monitor  paid  its  employees  for  all  reported                                 

overtime  demonstrates  that  it was  indeed  aware  of the  FLSA

overtime requirements.  Additionally, several employees testified

that they had been instructed by superiors to report no more than

forty hours  on their  weekly  timecards.   Those employees  also

testified that  they were occasionally reprimanded  when they did

report  overtime and were told to alter their weekly timecards so

that no overtime hours would be included.

          In its defense, The Monitor  argued that its policy  of                                               

discouraging overtime hours while  paying those employees who did

in fact  report them does not  compel the conclusion that  it was

willfully violating the  FLSA.  Rather, they contended  that this

policy "illustrates the efforts  of an employer trying to  do the

right thing in  the face of  hopelessly outdated 40-year-old  DOL

journalism  interpretations which provide  absolutely no guidance

regarding  which journalists in a modern  newsroom are exempt and

which are not."   In  support of this  contention, The  Monitor's                                                                         

editor-in-chief testified that he  had never instructed anyone at

The Monitor to alter  a timecard, and that  The Monitor paid  its                                                                 

employees  for  all  reported   overtime.    The  reporters  also
                                                  

Reich v. Newspapers of New England, Inc., 834 F. Supp. at 538-39.                                                  

                               -46-

testified  that  they would  often  work  unreported overtime  to

satisfy  their own  desire to  produce high  quality work  and to

avoid the perception that they were slow writers.

          Our  scrutiny  of the  record  convinces  us that  both

parties   bulwarked  their  respective   positions  with  tenable

arguments.   Consequently,  we cannot  find the  district court's

ruling to be clearly erroneous.19

          III.  Denial of the Injunction                    III.  Denial of the Injunction

          The Secretary also appeals the district court's refusal

to prospectively  enjoin The Monitor from  committing future FLSA                                              

violations.   The FLSA authorizes  the district courts  to enjoin

violations of  the overtime  and recordkeeping provisions  of the

Act.  29 U.S.C.   217.  The issue of whether  an injunction is an

appropriate remedial measure rests in the sound discretion of the

district  court, and  its decision  on this  matter will  only be

disturbed  on  appeal  where an  abuse  of  discretion is  shown.

Martin  v. Coventry  Fire Dist.,  981 F.2d  1358, 1362  (1st Cir.                                         

1992)  (citation omitted).    In exercising  its discretion,  the

district  court  should  weigh   the  finding  of  the  violation

established  at  trial  against  the factors  that  indicate  the

violations  are not likely to  recur, "such as  intent to comply,

extraordinary   efforts   to  prevent   recurrence,   absence  of

repetitive violations, and absence of bad faith."  Id.                                                                
                                                  

19  Again,  we find support from the Third  Circuit's decision in
Reich v. Gateway Press, Inc., 13 F.3d at 702-03.  Confronted with                                      
essentially the same facts as we now face, it refused to overrule
the district court's conclusion that the FLSA violations were not
willful.  See id.                           

                               -47-

          Reviewing the  record with these factors  in mind leads

us  to the inescapable conclusion that the district court did not

abuse  its discretion in denying the  injunction.  The violations

at The Monitor were not the product of  bad faith.  Nor were they                        

committed willfully.    Rather, the  violations  can in  part  be

traced  to the indeterminate status of the FLSA exemptions in the

field   of   journalism.20     Further,   although   The  Monitor                                                                           

steadfastly  insisted throughout  the trial  and appeal  that the

majority  of  its  journalists   were  exempt  professionals,  it

represented  to  the district  court  that it  fully  intended to

comply with requirements of the FLSA as clarified by the ultimate

judicial resolution  of this case.   In these  circumstances, the

denial of the injunction was not an abuse of discretion.

                                                  

20   The violations at  issue were committed  in the late 1970's,
long before the current case law began to clarify the issue.

                               -48-

          IV.  Denial of Post-investigation Damages                    IV.  Denial of Post-investigation Damages

          As discussed  above, the Secretary sought  to introduce

evidence  and  win  back  wages  for  FLSA  violations  that  had

allegedly occurred  after the DOL concluded  its investigation at

The Monitor.  The  district court allowed the evidence  pending a                     

final ruling  on admissibility.   Ultimately, the  court excluded

the  evidence  and  refused  to  award monetary  relief  for  any

violations  alleged  to have  occurred  after  January 25,  1980,

approximately  the  last day  of the  period  covered by  the DOL

investigation.   With  regard  to this  determination, the  court

stated:

            The reason  for this . .  . limitation is
            that,    although     plaintiff    claims
            "continuing" violations of FLSA, the case
            was largely prepared by the defendants on
            the  ground that violations,  if any, did
            not  continue  beyond  January 25,  1980.
            The court, having  taken the matter under
            advisement, Tr. 1-43, 44, finds and rules
            that it would  be unjust and  inequitable
            to  allow damages  to be recovered  for a
            period beyond January 25, 1980.

Newspapers  of New  England, Inc.,  834 F.  Supp. at  539 (citing                                           

Donovan v. Burger King Corp., 672 F.2d 221, 229 (1st Cir. 1982)).                                      

          The Secretary  argues that  The Monitor was  well aware                                                           

that  the complaint  sought  back  wages  for  post-investigation

violations  and that The Monitor  had ample time  before trial to                                          

conduct  discovery  pertinent  to  this issue.    Therefore,  the

Secretary contends, the  district court's  limitation of  damages

was  an abuse of  discretion.  We disagree.   The record contains

ample  support for  the district  court's determination  that The                                                                           

                               -49-

Monitor  was unfairly  surprised  by the  Secretary's attempt  to                 

prove post-investigation violations at trial.  Exhibit A attached

to the  Secretary's complaint  accurately detailed the  amount of

back  wages sought for each employee.  Exhibit A did not indicate

that the claimed wages would be revised at trial to reflect post-

investigation violations.21   The  Pre-trial  Order's summary  of

the Secretary's  claims also  did not reflect  post-investigation

damages.   Rather, the Pre-trial Order stated that damages sought

by  the  Secretary  were  only  those  contained  in  Exhibit  A.

Furthermore,  the DOL  compliance officer in  charge of  the case

stated  at his deposition that Exhibit A contained all the claims

being brought by the  Secretary.  Counsel  for the DOL failed  to

object  to either  the Pre-trial  Order or  the testimony  of its

compliance  officer.   The district  court apparently  found that

this  confluence  of  events  led  The  Monitor  to  conduct  its                                                         

discovery on the  reasonable belief  that the  Secretary did  not

intend    to   pursue    back   wages    for   post-investigation

violations.22    We  do  not   find  this  to  be  an   abuse  of
                                                  

21  The  fact that Exhibit A did not  indicate that the Secretary
would seek  damages  for  post-investigation  violations  is  not
dispositive because  the Secretary's complaint did  aver that the
violations were ongoing.

22   After  discovery  closed, the  Secretary  sought  to  reopen
discovery to update its back wage computations so that they would
reflect post-investigation  violations.   Though  the  magistrate
judge hearing  the motion  ultimately denied it,  the Secretary's
supporting arguments are enlightening:

            The sole choice, therefore, for . . . the
            Court  is whether  the  pay practices  at
            issue are to be dealt with in one lawsuit
            or  in  a  series  of lawsuits.    It  is

                               -50-

discretion.

          Affirmed.                            

                                                  

            Plaintiff's  position that  resolution of
            all   back  wage   claims  in   a  single
            litigation would involve less expenditure
            of  time and money . . . .  Plaintiff is,
            however, fully prepared  to file a second
            lawsuit  to protect  its right  to assert
            its claims  as to unpaid  back wages  for
            the  period  January   26,  1980  to  the
            present.

Obviously, this  motion notified  The Monitor that  the Secretary                                                       
sought post-investigation damages.  It is equally clear, however,
that the Secretary believed  at the time that it would  be forced
to file a second lawsuit  to secure post-investigation damages if
the  motion to reopen discovery was denied.  The Secretary cannot
now  prevail  in  arguing  that  the  district  court  abused its
discretion  by  finding  that  The   Monitor  was  understandably                                                      
unprepared at trial to  defend allegations of  post-investigation
violations.    The Secretary  should have  either filed  a second
lawsuit  or objected  to  the magistrate  judge's  denial of  the
motion pursuant to Fed.  R. Civ. P. 72(a).  The  fact that it did
neither may not be rectified on appeal.

                               -51-
