Petition for Writ of Certiorari — Wilson Building, Inc. v. Brennan
Supreme Court brief1973
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Text
Tue Wuson Bunoprine, Petitioner
v.
Peres J. Brennan,
Secretary of Labor, Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE 5TH CIRCUIT
Barrow, Buann, Renmet &
LEE
12th Floor - Main Building
1212 Main Street
Houston, Texas 77002 -
224-7272
Gerorce T. Barrow
R. F. Wueess, JR.
By
George T. Barrow
Coz THomson
Suite 1206
River Oaks Bank Tower
Houston, Texas 77019 - 526-8401
Davis & Harz
610 The Wilson Tower
Corpus Christi, Texas
PIDELITY PRINTING COMPANY, INC., HOUSTON
TABLE OF CONTENTS
I. Citation to Opinions Below ............
II. Jurisdiction
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VII. Reasons for Granting the Writ
VIII. Conclusion
Appendix A, Part 1— Coy of opinion ‘of Court of
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Appendix A, Part 2— Judgment of Court of Ap-
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Appendix A, Part 3 — Order Overruling Petition for
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Appendix B, Part 1 — Copy of District Court Opin-
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Appendix B, Part 2— Jalemet of District Court
LIST OF AUTHORITIES
Borden Company v. Borella, 325 U.S. 679, 65 S.Ct. 431
I a eeiialeelicionun
Borella v. Borden Co., 145 F.2d 63 (1944) EAA Teor
Callus v. 10 East 40th Street Building, Inc., 146 F.2d 483,
(ERTS EEA teers eS RASC ELE aR cm ee mE aR
Houchin v. Thompson, 438 F.2d 927 (C.A. 6, 1970) ............000
Johnson v. Dallas Downtown Development Co., 132 F.2d 287
(C.A. 5, 1942) ecert.den., 318 U.S. 790, 63 S.Ct. 944, 87
bE Ree ene oe
Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed.
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Mitchell v. Zachry Co., 326 U.S. 310, 4 L.Ed.2d 753, 80
I hdc ieee eats
10 East 40th Street Building, Inc. v. Callus, 325 U.S. 578,
65 S.Ct. 1227, 89 L.Ed. 1806 (1945)
Tobin v. Girard Properties, 206 F.2d 524 (C.A. 5, 1953) ......
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Fair Labor Standards Act of 1938 as amended 29 USCA 201,
et seq.
ii
Statutes
29 USCA 203(b) ....
29 USCA 203(i)
29 USCA 203(r)
29 USCA 203(s)
29 USCA 206(u)
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In Tue
Supreme Court of the United States
setialadiacame Term, 1973
TMs sities.
Tue Wuson Buitprne, Petitioner
Vv.
Peter J. BRENNAN,
Secretary of Labor, Respondent
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE 5TH CIRCUIT
Petitioner prays that a Writ of Certiorari issue to review
the judgment of the United States Court of Appeals for the
dth Circuit, entered on the 27th day of April, 1973.
I.
Citation to Opinions Below
The opinion of the Court of Appeals is not yet reported,
but a copy thereof is attached hereto as Part 1 of Appendix
A. The opinion of the District Court is reported at 320
F.Supp. 664 (S.D.Tex. 1970) and a copy thereof, along with
| a copy of the District Court judgment, is attached hereto
| as Appendix B.
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II.
Jurisdiction
The judgment of the Court of Appeals, printed in Ap-
pendix A hereto, was entered on April 27, 1973. The peti-
tion for rehearing was denied May 22, 1973 (Appendix A,
Part 2) and the Court of Appeals has stayed its mandate
through July 5, 1973.
The jurisdiction of this court is invoked under 28 USC,
§ 1254 (1).
ITI.
The Question Presented
Is the business of operating adjoining office buildings
having a miscellany of tenants, none of whom are engaged
in the production of goods for commerce, an enterprise en-
gaged in commerce within the meaning of the Fair Labor
Standards Act of 1938, as amended, (29 USCA 201, et seq.)
by virtue of the fact that the elevator operators have had
among their ordinary passengers mailmen and expressmen
with out of state letters and parcels?
IV.
Statute Involved
The statute controlling the issue is the Fair Labor Stand-
ards Act, 29 USCA 201, et seq. The relevant provisions
thereof are set forth below.
29 USCA 203 — Definitions
As used in this chapter —
e & e a e
(b) “Commerce” means trade, commerce, transporta-
tion, transmission, or communication among the several
States or between any State and any place outside thereof.
(i) “Goods” means goods (including ships and marine
equipment), wares, products, commodities, merchandise, or
articles or subjects of commerce of any character, or any
part or ingredient thereof, but does not include goods after
their delivery into the actual physical possession of the
ultimate consumer thereof other than a producer, manu-
facturer, or processor thereof.
(r) “Enterprise” means the related activities performed
(either through unified operation or common control) by
any person or persons for a common business purpose, and
includes all such activities whether performed in one or
more establishments or by one or more corporate or other
organized units...... “i
(s) “Enterprise engaged in commerce or in the produc-
tion of goods for commerce” means an enterprise which has
employees engaged in commerce or in the production of
goods for commerce, including employees handling, selling,
or otherwise working on goods that have been moved in or
produced for commerce by any person..... _
29 USCA 206 — Minimum wage
(a) Every employer shall pay to each of his employees
who in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce, wages at the following rates:
(1) not less than $1.40 an hour during the first year
from the effective date of the Fair Labor Standards
Amendments of 1966 not less than $1.60 an hour there-
after, except as otherwise provided in this section:
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V.
Statement of the Case
In this cause the facts were almost exclusively uncon-
troverted. The Employer operates adjoining office build.
ings in downtown Corpus Christi, Texas. The buildings are
occupied by a variety of tenants; lawyers, accountants,
geologists, oil companies and operators, lease brokers, doe-
tors, and others (Transcript p. 122-125). There are no ten-
ants of Employer that are engaged in produetion of goods
for commerce and Employer is not so engaged. (Findings
of Fact Nos. 23 & 24, App. 70). Although several elevators
are self-operating, automatic elevators, there were at all
times relevant hereto employed a number of operators for
elevators located in one of Employer’s buildings, The Wil-
son Tower.
United States mail and parcel post have been regularly
delivered directly to the offices of some of The Wilson Build-
ing and The Wilson Tower Building tenants in every week
by United States mailmen during the period since February
1, 1967, and in making such deliveries they use the elevators
located in said buildings. A portion of such mail and parcel
post has been, and is being, mailed to these tenants from
points outside the State o* Texas (Findings of Fact No. 4,
App. 63).
A mailman makes two regular trips per day in The
Wilson Tower Building delivering mail. He is inside the
elevator about five minutes during each day. He does not
deliver mail to all the tenants each day, nor does he get off
the elevator on each floor of the building (Findings of
Fact No. 9, App. 65).
Freight has been regularly received by tenants in The
Wilson Building and The Wilson Tower Building in every
week since February 1, 1967. Freight delivered to the ten-
pote PL BE BMS ates o Pana 4, itge 204 sont £08 RTL oa A
ants in such buildings above the street floor is transported
by means of the passenger elevators in such buildings. A
portion of such regularly delivered freight has been shipped
from places located outside the State of Texas direct to the
addressee tenants (Findings of Fact No. 5, App. 63).
The Wilson Tower Buildings has four passenger elevators
serving it at the Carancahua Street entrance, which during
working days are operated, and have been operated since
February 1, 1967, by employees of the Defendant. One
elevator can be, and is at night and on Sundays, placed on
automatic so no operator is necessary, and it is then op-
erated by the passenger. Ordinarily, from 2,000 to 3,000
passengers travel on The Wilson Tower Building elevators
(up and down) each day, five days each week. The pas-
sengers are tenants, employees of tenants and clients, cus-
tomers and other persons doing business with the various
tenants (Findings of Fact No. 7, App. 64).
There are nine employees of Defendant who are desig-
nated elevator operators operating elevators in The Wilson
Tower Building. Elevators which are operated by employee
operators carry passengers indiscriminately with no distine-
tion as to the nature of business of the passenger. The post-
man delivering mail has no priority rights to the use of any
of the elevators and he usually rides with other passengers.
Passengers have prior right to use of the elevators during
business hours over freight and parcel post deliveries.
(Findings of Fact No. 8, App. 6+).
| The time of the operators of the four elevators in The
| Wilson Tower Building which is taken up solely in earry-
| ing interstate freight and mailmen who carry regular mail
| and parcel post deliveries, is very small in comparison to the
| time required of the operators in connection with the other
regular uses of such elevators. (Findings of Fact No. 11,
App. 65).
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Based on the activities outlined above, the District Court
held that “the interstate deliveries of mail, freight and
parcel post to The Wilson Tower Building are sufficiently
regular, frequent and substantial in amount to constitute
said elevator operators as being engaged in commerce; and
the elevator operators are so closely related to the move-
ment of commerce as to be a part of it.” (Findings of Fact
No. 11, App. 65) /Emphasis supplied./ The Court further
found that the rest of the employees were covered under
“the enterprise doctrine” since the employer had more than
one employee “in commerce”. The Court of Appeals af-
firmed.
VI.
Federal Jurisdiction
The basis for federal jurisdiction in the District Court
was Title 29, Section 117, United States Code.
VII.
Reasons for Granting the Writ
The petition for Writ of Certiorari should be granted in
this case because the holding of the Court of Appeals is in
conflict with the decision of this Court in Callas v. 10 East
40th Street Building, Inc., 146 F.2d 438, page 440.
In addition, the petition should be granted as the holding
of the Court of Appeals is in conflict with the holding of
the Sixth Circuit in Houchin v. Thompson, 438 F.2d 927 (6th
Cir. 1970).
The Conflict with Callus
Although the judgments of the courts below were rathe.
sweeping in the number of employees affected, the amount
of the sum ordered paid and the various other matters, the
actual crux of the problem was a rather narrow question
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concerning the duties of a relatively small group of elevator
operators.
Under the applicable provisions of the Act all employees
of an “enterprise engaged in commerce or in the production
of goods for commerce” are covered whether or not an in-
dividual employee is so engaged or not. As applicable here,
an enterprises engaged “in commerce” or in the production
of goods for commerce is defined in Section 203(s) of the
Act simply as one which has two or more employees so en-
gaged and which meets certain other tests not important
here. So in the Trial Court it came down to the question,
did the activities of the elevator operators make The Wil-
son Building, Inc. “an enterprise engaged in commerce
...” so as to bring all of the employees under the Act?
The Trial Court found that the elevator operators were
“engaged in commerce” (not in the production of goods for
commerce) thus triggering coverage for all employees. The
narrow question before this Court is, then, were these
elevator operators, bu virtue of their activities brought
out in evidence, in engaged interstate commerce?
It cannot be too strongly emphasized that this exact
point has been raised and settled numerous times in the
Supreme Court, the Fifth Circuit Court of Appeals, and
other Federal Courts over the past twenty-eight years.
These cases involve exactly the same employees we have
here, doing exactly the same work, under exactly the same
conditions.
In the fact of the overwhelming authority to the contrary
it seems most unfortunate that the Secretary of Labor con-
tinues to relitigate this issue. This is particularly true in
view of the complete void of any new support for their
theory in either case or statutory law.
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The Supreme Court, at a very early stage, has occasion
to rule on a case involving a fact situation that is in all
pertinent respects exactly the same as the one before this
Court. 10 East 40th Street Building, Inc. v. Callus, 325 U.S,
978, 65 S. Ct. 1227, 89 L. Ed. 1806 (1945).
This Court, in Callus, held that employees engaged in
the same activities were not “engaged in commerce: within
the meaning of the Fair Labor Standards Act.
The 5th Circuit Court of Appeals, in this case, attempted
to distinguish Callus on the basis that this Court’s holding
was based solely on the question of the applicability of the
Act due to the tenants’ activity, rather than the employees’
activity, and further determined that this Court did not
consider the question of whether elevator operators regu-
larly and frequently carrying passengers carrying inter-
state mail and freight shipments are themselves engaged
in commerce. Callus can not be so easily distinguished as
this Court disposed of the contention now made by the
Secretary of Labor when it determined that the employees
in Callus, including elevator operators were “not engaged
in commerce”,
To fully understand the impact of Callus it is necessary
to look at two companion eases dealing with elevator opera-
tors decided at about the same time.
In Kirschbaum v. Walling, 316 U.S. 017, 62 S. Ct. 1116,
86 L.Ed. 1638 (1942), a multi-storied building was occupied
by tenants that manufactured and sold ladies’ garments.
The employees of the defendant, the building owner and
operator, were engineers, carpenters, elevator operators,
and other maintenance personnel who perform the cus-
tomary duties of a person charged with the maintenance
of a loft building.
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9
The contention made by the Government was that these
employees were engaged “in commerce”! and “the produc-
tion of goods for commerce”. 86 L. Ed 1642-1644.
Further, the Court of Appeals held that the elevator
operators were engaged “in commerce”, 124 F. 2d 572, foot-
note 5, as well as in the production of goods for commerce.
The Supreme Court held that the work of the employees
in this particular case had such:
“...a close and immediate tie with the process of pro-
duction for commerce, and was therefore so much an
essential part of it, that the employees are to be re-
garded as engaged in an occupation ‘necessary to the
production of goods for commerce’.” id. p. 1649.
because:
“Without light and heat and power the tenants could
not engage as they do, in the production of goods for
interstate commerce. The maintenance of a safe,
habitable building is indispensable to that activity.”
id. p. 1648.
The Court recognized that the Act was not coextensive
with the limits of the power of Congress over commerce and
was cognizant of the difficulties in drawing a line between
what the Federal Government has taken over for adminis-
tration and what it has left to the States. It should be noted
that the Supreme Court did not base its holding on he Gov-
ernment’s arguments or the Court of Appeals holding as to
being “in commerce”.
The Kirschbaum case was followed in Borden Company
v. Borella, 325 U. S. 679, 65 S. Ct. 431 ( 1945), 89 L. Ed.
1865, decided the same day as Callus. The employees of the
Borden Company, who operated the elevators in and main-
? Emphasis supplied here as elsewhere unless otherwise noted
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tained the building which was owned by the company, were
held covered by the Act because all of the company’s execu-
tive officers were in the building. The Court recognized that
there was no actual physical production of goods for com-
merce in the building, but held that the executive officers
directing the activities of the company were engaged in
the production of goods for commerce just as much as those
who process and work on the tangible products. Again no
mention is made by the Court of the employees being “in
commerce” although this point had been urged by the em-
ployees in their brief, 89 L. Ed. 1867. In this connection it
is significant that the Court of Appeals in its opinion in
Borden stated:
“(1) Since the decision of the Supreme Court in Me-
Leod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L.
Ed. 1538, THE PLAINTIFFS DO WELL TO RELY
UPON THE SECOND POINT, FOR IT IS CLEAR
THAT THEY ARE NOT ‘ENGAGED IN COM.
MERCE’.” 145 f.2d 63, p. 64.
In Callus the court was faced with a third situation. One
in which the building had no manufacturing and was
occupied by “the usual miscellany of offices”. The court
then found that the renting of office space in such a building
was “local business” and that the elevator operators and
other employees were not covered.
When these three Supreme Court cases are read together,
the conclusion is inescapable that elevator operators in
typical office buildings are not covered by the Act as being
“in commerce” or “in production of goods for commerce”
unless there is some further element introduced into the
situation as it was in Borden and Kirschbaum. The basic
underpinnings for this conclusion is the Supreme Court’s
reasoning:
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11
“,,. we cannot ‘be unmindful that Congress in enacting
this statute plainly indicated its purpose to leave local
business to the protection of the states’. We must be
alert, therefore, not to absorb by adjudication essenti-
ally local activities that congress did not see fit to take
over by legislation.
“Renting office space in a building exclusively set aside
for an unrestricted variety of office work spontaneously
satisfies the common understanding of what is local
business and make the employees of such a building
engaged in local business.” 10 East 40th Street Build-
ing v. Callus, supra.
The Court of Appeals below admitted that the facts of
the Callus case bears “some similarity” to the present one.
(Opinion p. 13) It attempted to distinguish Callus solely
on the grounds that the issues in the two cases are different.
The court below claims in its opinion that the issue in
Callus was whether the elevator operators were “by virtue
of the tenant’s activities engaged in the production of goods
for commerce” and that the issue in the present case is
whether the elevator operators “own® activities engage them
‘in commerce’”. The “activities” relied on are the presence
on the elevators of interstate mail and freight.
Since this is the sole distinction made by the Court of Ap-
peals of a Supreme Court case that in all of its pertinent
facts is identical to the present one, the Callus case will be
examined in some further detail with this “distinction” in
mind.
The District Court in the Callus case noted at the very
outset that:
“The issue is whether the plaintiffs, and others, em-
ployed by the defendant, as service and maintenance
employees, were engaged in commerce or the produc-
tion of goods for commerce within the meaning of the
Act.” 51 F, Supp. 528.
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The District Court then set out the Findings of Fact in-
cluding:
“(7) Class 2.... Orders are taken and are forwarded
by mail... to factory and mines located in various
states... .” id. p. 529
“(7) Class 6... employees of these tenants prepare
plans and sketches in the building for construction pro-
jects located in various parts of the United States...”
“(9) An average of 50 to 60 persons, including plain-
tiffs, engaged as maintenance employees of said office
building, have engaged in such capacities as elerator
starters, elevator operators, window cleaners, wateh-
men, mechanics and handymen.”
“(10) These employees have performed the customary
duties incident to the effective maintenance and opera-
tion of this office building, such as . . . the operation of
elevators carrying tenants and employees, customers
and clients of tenants, and other passengers ; carrying
advertising matter, publicity releases, photographie
material, magazine layouts, commercial art d rawings,
printers’ and lithographers’ proofs, construction plans
and specifications, Diesel engine parts, Ediphone ma-
chines and parts, samples of merchandise, office furni-
ture and equipment and supplies to and from tenants’
premises; ...”
“(14) Plaintiffs have not been engaged in trade, com-
merce, transportation or transmission amoung the
several states or from any state to any place outside
thereof.” id. p. 530
The District Court stated in its Conclusions of Law:
“(2) None of the plaintiffs or any of the other building
maintenance employees of the defendant have been
engaged in interstate commerce or in the production of
goods for commerce , ...” id. p. 531
peed nn
The fact recited in detail in the District Court’s opinion
should be read to fully appreciate the type of activities
13
there involved. It is hard to imagine the issues and facts
relating to “in commerce” being set forth in a clearer man-
ner.
In Callus v. 10 East Fortieth Building 146 F. 2d 438
(1944), the Court of Appeals for the Second Circuit re-
versed the District Court and held its prior decision in
Borella v. Borden Co. 145 F. 2d 63 (1944), controlled. The
record before the Court of Appeals had the pleadings al-
leging the employees were “in commerce” and were engaged
“in the production of goods for commerce”, and also had
the District Court’s findings that the elevators carried
passengers and goods, and Conclusions of Law that none
of the plaintiffs were engaged “in commerce” or “in the
production of goods for commerce”. The Court of Appeals
affirmed the District Court on its holding that the elevator
operators and other employees were not engaged in com-
merce; however, it reversed on the ground that they were
by statutory definitions engaged in production of goods:
“(1) The plaintiffs’ suit is based on the theory that they
are ‘engaged in the production of goods for (interstate)
commerce’, They cannot effectively contend that they
are ‘engaged in (interstate) commerce’. McLeod v.
Threlkeld, 319 U.S, 491, .. .”
The Callus case then moved to the Supreme Court as 10
East 40th Street Building, Inc. v. Callus, supra, on the
record showing the elevator operators close relation to per-
sons engaged in commerce and, necessarily, to mail and
goods “in commerce”.
The elevator operator plaintiffs alleged and proved they
were transporting and carrying goods and persons in com-
merce and claimed they were “engaged in commerce”, and
these employees plaintiffs argued to the Supreme Court that
on these facts they were “in commerce”, yet both the Dis-
trict Court and the Court of Appeals had held the em-
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ployee plaintiffs were not “in commerce”. In the brief be-
fore the Supreme Court employee plaintiffs argued:
“Application of the act does not depend upon the
percentage or volume of goods moving in commerce
to which employees’ activities specifically relate. It is
sufficient if the record indicates that the flow is not
casual, sporadic, or utterly inconsequential.
“The volume of business in commerce to which the
work of these respondents immediately related was
more than that to which courts would apply the maxim
“de minimis’.” 89 L. Ed. 1808-1809.
The United States Government intervened and filed and
argued the case before the Supreme Court urging affirm-
ance. In the Government’s brief it argued:
“An employee’s duties, to fall within the Act, need
not be entirely or principally devoted to commerce or
to the production of goods for commerce.
“An employee is within the protection of the act if
the interstate transactions to which is duties are neces-
sary constitute a regular part of the business and are
not inconsequential or sporadic.” id. p. 1809 (Emphasis
supplied)
With these contentions before it, the Supreme Court
reasoned and held in Callus:
“The case immediately before us presents still a
third situation differing both from Kirschbaum and
Borden.
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“The respondents are maintenance employees of the
building, elevator starters and operators, window
cleaners, watchmen and the like. They brought this
SOM TEARS
15
suit under Sect. 16(b) of the Fair Labor Standards
Act, 29 USCA Sect. 215, 9 FCA title 29, Sect. 215,
for claims of overtime payment to which they are
entitled if their occupations be deemed ‘necessary to
the production’ of goods for commerce. Obviously they
are not ‘engaged im commerce’.” id. p. 1811
Thus we have the District Court, the Circuit Court and
the Supreme Court each ruling that employees, in no way
different than those involved here, were not “in commerce”.
About the most that can be said of any “distinction” from
the Callus case is that the case does not set out any specific
claim on the part of the employees based on interstate mail
or freight being carried on the elevators. However, in view
of the findings of fact by the District Court as to the activi-
ties of the employees, it is simply incredible to imagine that
some such specific claim would have changed the court’s
holding or that the case is distinguishable as not being in
point.
The holding in Callus was obviously made on much broad-
er policy consideration as set out in Mitchell v. H. B. Zachry
Co., 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753 (1960) in its
discussion of the Callus cases: _
“Regardless of the governing principle that coverage
turns upon the nature of the employees’ duties, and
not upon the nature, local or interstate, of the em-
ployer’s general business, WE HELD THE CASE DIS.
TINGUISHABLE FROM BORDEN AND KIRSCH-
BAUM BECAUSE THE EMPLOYMENT, SINCE
PART OF AN ENTERPRISE WHICH ‘SPONTAN-
EOUSLY SATISFIES THE COMMON UNDER-
STANDING OF WHAT IS LOCAL BUSINESS’,
WAS ITSELF SUFFICIENTLY DIFFERENT, DE-
SPITE IDENTICAL EMPLOYEE DUTIES, from
prior cases to justify regarding it as separate from
the ‘necessary parts of a commercial process’ which are
within the Act.”
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The above analysis is not that of the writer alone, but
has been accepted by every Federal Court of Appeals that
has passed on the question since Callus until the recent
switch by the 5th Cireuit Court. See Johnson v. Dallas
Downtown Development Co., 132 F.2d 287 (C.A. 5, 1942)
cert.den., 318 U.S. 790, 63 S.Ct. 944, 87 L.Ed. 1156 (1943),
and Tobin v. Girard Properties, 206 F.2d 524 (C.A. 5, 1953),
The District Court, the Court of Appeals and the Supreme
Court each determined and held in the Callus case that em-
ployees of a multitenant office building performing the usual
and “customary duties incident to the effective maintenance
and operation of the office building” were not “engaged in
commerce” within the meaning of the Fair Labor Standards
Act. The 5th Circuit’s “distinction” should be reviewed by
this Court and a petition for a writ of certiorari should be
granted for this purpose.
Conflict with Houchin
The recent 6th Circuit case of Houchin v. Thompson, 438
F.2d 927 (C.A. 6, 1970) is in direct conflict with the 5th
Circuit Court of Appeals on the involved point. This is
admitted in the opinion by the 5th Circuit. The facts in the
two cases are identical and the holdings are squarely in con-
flict. This Court should resolve the conflict by granting the
petition for the writ of certiorari in this case.
17
VIII.
Conclusion
The holding of the District Court and the Court of Ap-
peals has substantially broadened coverage of the Fair
Labor Standards Act to employees of office buildings in
direct conflict with the rule laid down by this Court in
Callus and followed by the Sixth Cireuit in Houchin.
This court should grant the petition for the writ of
certiorari and determine the question raised on this impor-
tant and broad sweeping issue by the applicability of the
Act to these circumstances,
Respectfully submitted,
Barrow, Bianp, Reamet &
LEE
12th Floor - Main Building
1212 Main Street
Houston, Texas 77002
Grorce T. Barrow
R. F. WHE Ess, JR.
George T. Barrow
Cott THomson
Suite 1206
River Oaks Bank Tower
Houston, Texas 77019
Davis & Hate
610 The Wilson Tower
Corpus Christi, Texas
. Es -
Le ee ee ae ee eee
Te —
18
CERTIFICATE OF SERVICE
I George T. Barrow, hereby certify that on the .., day
Oe chaxsinacs caus » 1973, a copy of the foregoing Petition
for Writ of Certiorari was delivered to the following per-
sons by placing the same in the United States mail, certi-
fied, return receipt requested, with the proper postage
thereon:
Mr. Cole Thomson
1206 River Oaks Bank
Tower
Houston Texas 77019
Mr. Charles L. Hale, Jr.
Davis & Hale
610 Wilson Tower
Corpus Christi, Texas 78401
Mr. M. J. Parmenter
Mr. William EF. Everhart
Department of Labor
411 North Akard Street
Dallas, Texas
Ms. Carin Ann Clauss
Counsel for Appellant
Litigation
U.S. Department of Labor
Office of the Solicitor
Washington, D. C. 20210
Ms. Bessie Margolin
Assistant Solicitor
Room 4141 — U. S. Dept. of
Labor
14th & Constitution Ave.,
N.W.
Washington, D. C. 20210
Ms. Bobbye Spears
Room 4141 — U. S. Dept. of
Labor
14th & Constitution Ave.,
N.W.
Washington, D. C. 20210
SORE O HOHE THEE EEE EEE SEES EEE E EEE E SEER EEE EEEEEED
George T. Barrow
IN THE
United States Court of Appeals
For Tue Firra Creovir
No. 71-1813
Peter J. Brennan, Secretary of Labor,
United States Department of Labor,
Plaintiff-Appellee,
v.
Tue Wrson Bumping, Ino.,
Defendant-A ppellant.
Appeal from the United States District Court for the
Southern District of Texas
(April 27, 1973)
Before Brown, Chief Judge, Moorz* and Roney,
Circuit Judges.
MOORE, Circuit Judge: In this appeal we are asked
to decide whether certain building service employees of
the appellant-employer are engaged in commerce for pur-
poses of the Fair Labor Standards Act (FLSA)! and
*Hon. Leonard P. Moore, Senior Cireuit Judge of the Second
Cireuit, sitting by designation.
129 U.S.C. § 201 et seq., as amended.
cea |
Wtven 0 Oia aty
2a
whether said employees are therefore covered by the Act’s
minimum wage and other provisions.
The action was brought by the Secretary of Labor pur-
suant to Section 17 of the Act? to enjoin appellant Wilson
Building, Inc. (“the employer”), from violating the Act’s
minimum wage,’ overtime,‘ and record-keeping® require-
ments and to compel payment, with interest, of compen-
sation owing to the employer’s building maintenance
personnel. The employer admits that it paid the named
employees less than the prescribed federal minimum wage
during the period in question (1967-70),® that it failed to
pay them the prescribed premium for overtime work, and
that its book-keeping records did not satisfy the Act’s re-
quirements. The employer, however, (1) denies that its
payment and record-keeping practices were unlawful, ar-
guing that it was not subject to the Act’s requirements
because it is a purely local business, and (2) urges that the
district court erred in finding that the activities of the
service employees engaged them in commerce for purposes
of the FLSA. Concluding that appellant’s elevator opera-
229 U.S.C. § 217.
3 29 U.S.C. § 206(b).
#29 U.S.C. § 207(a) (2).
5 29 U.S.C. § 211(e).
© The prescribed minimum wage during the years in question was
as follows:
Feb. 1, 1967 to Jan. 31, 1968 $1.00
Feb. 1, 1968 to Jan. 31, 1969 $1.15
Feb. 1, 1969 to Jan. 31, 1970 $1.30
Feb. 1, 1970 to Jan. 31, 1971 $1.45
29 U.S.C. § 206(b).
ih
ee es
3a
tors were engaged in commerce under 29 U.S.C. § 203(b),”
and that appellant was an “enterprise engaged in com-
merce” under 29 U.S.C. § 203(r) —(s)(1),8 the district
(b) “Commerce” means trade, commerce, transportation,
transmission, or communication among the several States or
between any State and any place outside thereof.
7 Section 203(b) provides:
8 Section 203(r) provides, in relevant part:
(r) “Enterprise” means the related activities performed
(either through unified operation or common control) by
any person or persons for a common business purpose, and
includes all such activities whether performed in one or
more establishments or by one or more corporate or other
organizational units including departments of an establish-
ment operated through leasing arrangements, but shall not
include the related activities performed for such enterprise
by an independent contractor: Provided, That, within the
meaning of this subsection, a retail or service establishment
which is under independent ownership shall not be deemed
to be so operated or controlled as to be other than a separate
and distinct enterprise, by reason of any arrangement, which
includes, but is not necessarily limited to, an agreement,
(1) that it will sell, or sell only, certain goods specified by
a particular manufacturer, distributor, or advertiser, or
(2) that it will join with other such establishments in the
same industry for the purpose of collective purchasing, or
(3) that it will have the exclusive right to sell the goods or
use the brand name of a manufacturer, distributor, or
advertiser within a specified area, or by reason of the fact
it occupies premises leased to it by a person who also leases
premises to other retail or service establishments. * * *
Section 203(s) provides, in relevant part:
(s) “Enterprise engaged in commerce or in the produc-
tion of goods for commerce” means as enterprise which has
employees engaged in commerce or in the production of
goods for commerce, including employees handling, selling,
or otherwise working on goods that have been moved in or
produced for commerce by any person, and which —
(1) during the period February 1, 1967, through
January 31, 1969, is an enterprise whose annual gross
volume of sales made or business done is not less than
$500,000 (exclusive of excise taxes at the retail level
which are separately stated) or is a gasoline service
establishment whose annual gross volume of sales is
not less than $250,000 (exclusive of excise taxes at the
retail level which are separately stated), and beginning
February 1, 1969, is an enterprise whose annual gross
volume of sales made or business done is not less than
$250,000 (exclusive of excise taxes at the retail level
which are separately stated); * * *.
ted ON Dd Wh GES heels BD
ted ny
8 EE Re RW HPP te | DOE OAR
4a
court ruled that appellant had violated the Act and granted
the relief sought by the Secretary. The district court’s opin-
ion is reported at 320 F. Supp. 664 (S.D. Tex. 1970). We
affirm.
L
The relevant facts are not in dispute. Appellant is a Texas
corporation doing business in Corpus Christi. It has Offices
in that city at 1701 Wilson Tower Building which, together
with the adjoining Wilson Building (also an office building),
the Wilson Tower Garage, and two parking lots, appellant
owns and operates for profit. The office buildings are oceu-
pied by a miscellany of tenants, including lawyers, doctors,
accountants, geologists, oil companies, lease brokers, and
others. The buildings and parking facilities are maintained
by various of appellant’s service employees including (1)
elevator operators, (2) maintenance employees (¢.g., car-
penters, mechanics, and plumbers) and (3) janitors and
maids. The district court’s findings as to each category of
employees were as follows.
Elevator Operators. — Nine employees regularly operate
the four elevators in the seventeen-story Wilson Tower
Building. All four elevators transport passengers as well as
persons delivering interstate mail, parcel post, and freight.
Mail is delivered to the tenants twice daily, parcel post two
or three times daily, and freight is delivered regularly each
week to various tenants. The district court found that al-
though the time devoted by the elevator operators to carry-
ing postmen and freight deliverymen is small in comparison
to the time devoted to the carrying of other passengers,®
° In Montalvo v. Tower Life Bldg., 426 F.2d 1135, 1143 (5th Cir.
1970) we held that “an employee may be engaged in commerce
or in the production of goods for commerce within the meaning
of the [FLSA] even though the time he devotes to the inter-
state activity is small in amount.”
da
“the interstate deliveries of mail, freight and parcel post
to The Wilson Tower Building are sufficiently regular, fre-
quent, and substantial in amount to constitute said elevator
operators as being engaged in commerce; and the elevator
operators are so closely related to the movement of com-
merce as to be a part of it.” 320 F. Supp. at 666.
Maintenance Employees. — These employees remodel
office space in appellant’s two buildings and perform gen-
eral carpentry and repair work for the benefit of tenants.
The remodeling work is done at the request of tenants,
pursuant to the rental agreement, subject to the approval
of appellant. The lower court found that a substantial por-
tion of the materials installed and supplies handled by the
maintenance employees, such as the lumber used for wall
paneling, doors, ete., is manufactured outside the state of
Texas. 320 F. Supp. at 667. In addition, mechanics and
plumbers maintain the air conditioning and heating sys-
tems in the buildings, and they, as do the other maintenance
employees, handle replacement parts and goods which are
manufactured out of state.
Janitors and Maids. — These employees perform custo-
dial services for the benefit of tenants, as required by the
rental agreement between tenants and appellant. Their
work includes cleaning offices and hallways, stocking rest-
rooms with soap, paper towels, and toilet paper, and re-
placing light bulbs and fluorescent lamps throughout the
buildings. The district court found that a substantial quan-
tity of the electrical and janitorial supplies handled by
the janitors and maids is manufactured out of state.
As noted, the district court concluded that the elevator
operators’ transportation of mail, parcel post, and freight
is regular, frequent, and substantial enough to rerder the
operators “engaged in commerce” within the meaning of
the Act, thus satisfying the requirement of Section 203(s)
=
+ Ler Ral the Reh
6a
that appellant’s enterprise have employees engaged in
commerce. Regarding the maintenance employees, janitors,
and maids, however, the court concluded that even though
they handle products which have travelled interstate, they
are not engaged in commerce bcause the products do not
meet the Act’s Section 203(i) definition of “goods”.!° The
court determined that “such materials when handled and
worked on by [appellant’s] employees are in the hands of
the ultimate consumer,” i.e., appellant, and that they there-
fore are out of the flow of commerce, 320 F. Supp. at 669,
By virtue of the elevator operators’ engagement in com-
merce, however, the court ruled that the other named em-
ployees are employed in an enterprise engaged in commerce
and that they too are entitled to the benefits of the Act.
On appeal both appellant and the Secretary find fault
with the district court’s decision. Appellant argues that
the court erred in finding that the elevator operators are
engaged in commerce and in ruling that all the employees in
question are covered by the Act’s enterprise doctrine. The
Secretary, while agreeing with the court’s result, argues
that the court erred by not ruling that the activities of the
maintenance and janitorial employees provide independent
grounds for sustaining enterprise coverage under the Act.
Since we are of the opinion that the elevator operators are
engaged in commerce within the meaning of Section 201(s)
we need not, and do not, reach the question whether the
activities of the other employees provide an independent
ground for finding engagement in commerce; under the
10 29 U.S.C. § 203(i) defines goods as follows:
(i) “Goods” means goods (including ships and marine
equipment), wares, products, commodities, merchandise, or
articles or subjects of commerce of any character, or any
part or ingredient thereof, but does not include goods after
their delivery into the actual physical possession of the ulti-
mate consumer thereof other than a producer, manufacturer,
or processor thereof.
TRL IERES a
Ta
Act’s enterprise doctrine’ they are entitled to the benefits
prescribed by the FLSA.
Il.
We begin our analysis of the question whether appellant’s
elevator operators are engaged in commerce mindful of
Mr. Justice Frankfurter’s exhortation that the “search for
a dependable touchstone by which to determine whether
employees are ‘engaged in commerce or in the production
of goods for commerce’ is as rewarding as an attempt to
square the circle.” A. B. Kirschbaum Co. v. Walling, 316
U.S. 517, 520 (1942). In that case the Court, as it has in
numerous cases since, recognized that application of the
FLSA to an infinite number of industrial and commercial
situations is essentially a line-drawing exercise, and that in
delineating between areas of activities regulated by the
Act and those left to state regulation courts should be
guided by the fixed points of national policy, legislative
history, and administrative practicalities. 316 U.S. at 523.
Writing as we do thirty years after Kirschbaum, we are
aided by a fourth guideboard —the long line of judicial
decisions which have construed the outer reaches of the
Act. We need not dwell on points which, by now, the cases
have rendered irrefutable, although we do well to note at
the outset the fundamental precepts that influence our
reasoning in the present appeal. Thus, for example, it has
been firmly established that the phrase “engaged in com-
merece” within the meaning of Section 203 of the FLSA is
to be given a broad, liberal construction rather than a
strained, technical one in order to effectuate the Act’s pur-
poses, Mitchell v. C. W. Vollmer & Co., Inc., 349 U.S. 427,
429 (1955) ; Mitchell v. Lublin, McCaughy & Assoc., 358 U.S.
11 For discussion of the 1961 amendments to the FLSA, which
added the “enterprise doctrine” to the Act’s provisions, see
Note, 9 B.C. Ind. & Com. L. Rev. 487, 489-90 (1968) ; Note, 41
Notre Dame Lawyer 596, 597-99 (1966).
n ~ + ve ss Cache ak Wk Da ae
PE OED Tea TEMAS ORLY ev) Oe A antny veer ever :
Boca tny Mace
Ret Aine Misra Rit shin he
RDA RA a th PIL IAD MeN ot Ne
a ad
ht Bane
Se
8a
207, 211 (1959); Shultz; v. Mack Farland & Sons Roofing
Co., Inc., 413 F.2d 1296, 1300 (5th Cir. 1969) ; that the Aet
has a remedial and humanitarian purpose, Tennessee Coal,
Tron & R.R. Co. v. Muscoda Local No. 123, 321 US. 590,
997 (1944) ; Mitchell v. Ballenger Paving Co., Inc., 799 F.2d
297, 301 (5th Cir.), cert. denied, 370 U.S. 922 (1962 ), which
was designated to provide a minimum standard of living
necessary for the health efficiency, and general well-being
of workers (29 U.S.C, § 202(a)), as well as to preseribe
certain minimum standards for working conditions, Wirtz
v. Ti Ti Peat Humus Co., Inc., 373 F.2d 209, 212 (4th Cir.),
cert, denied 389 U. S. 834 (1967); and that Congress in-
tended the Act “to extend federal control in this field
throughout the farthest reaches of the channels of inter-
state commerce,” Walling v. Jacksonville Paper Co., 317
U.S. 564, 567-68 (1943); see Wirtz v. Columbian Mutual
Life Ins. Co., 380 F.2d 903, 907 (6th Cir. 1967). Moreover,
practical considerations, and not technical conceptions,
guide us in determining coverage of the Act, and the
“erucial test is the nature of the activities of the employee,
rather than the general character of the employer's busi-
ness,” Wirtz v. Wohl Shoe Co., 382 F.2d 848, 850 (Sth Cir.
1967). With these principles in mind, we turn to the activi-
ties of the elevator operators in the present appeal, and to
the narrow issue of whether these activities engage the
operators in commerce.
Til.
Section 203(b) of the FLSA defines commerce as includ-
ing “trade, commerce, transportation, transmission, or com-
munication among the several States” (emphasis added). In
support of his position that the elevator operators are en-
gaged in commerce because they transport interstate mail
and freight which continue to flow in commerce until de-
livered to the offices of the tenants, the Secretary points to
NS,
9a
numerous decisions holding that employees whose duties
are directly related to the transportation of goods in inter-
state commerce are themselves engaged in commerce within
the meaning of the Act. Our attention is directed specifically
to the line of cases beginning with Walling v. Jacksonville
Paper Co., supra.’
In Jacksonville Paper Co. the Supreme Court held that
the FLSA was applicable to employees (truck drivers) of
a wholesale paper company who transported from company
warehouses within the state to retail stores also within the
state interstate goods that had temporarily been detained at
such warehouses. After noting that “the purpose of the Act
was to extend federal control in this field throughout the
farthest reaches of the channels of interstate commerce,”
(317 U.S. at 567) the Court ruled that the interstate journey
of the goods did not end, and the goods thus did not cease
to flow in commerce, until they reached their final destina-
12 See also, Mitchell v. Sunshine Dep’t Stores, Inc., 292 F.2d 645,
647-49 (5th Cir. 1961) (employees, including elevator operators,
handling and storing interstate merchandise at warehouse
before distribution to local retail stores held to be engaged
in commerce); Mitchell v. Royal Baking Co., 219 F.2d 532,
533-34 (5th Cir. 1955) (where we held that various employees
handling goods shipped from out of state, including workers
unloading and carrying same into warehouse, were engaged
in commerce) ; Fleming v. A.B. Kirschbaum Co., 124 F.2d 567,
571-72 (3d Cir. 1941), aff'd sub nom. A.B. Kirschbaum Co. v.
Walling, 316 U.S. 517 (1942) (elevator operators employed by
owner who leased his building to tenants, some of whom manu-
faetured goods shipped interstate, were directly engaged in
ecommerce by carrying in elevators the finished products) ;
McComb v. W.E. Wright Co., 168 F.2d 40, 42 (6th Cir.), cert.
denied, 335 U.S. 854 (1948) (employees who spent 25% of their
time unloading and storing both intrastate and interstate
(15% of total) goods engaged in commerce) ; Sucrs. de A. Mayol
& Co., Inc. vy. Mitchell, 280 F.2d 477, 480-81 (1st Cir.), cert.
denied, 364 U.S. 902 (1960) (employees, including elevator
operators and janitorial personnel, who received and stored
goods within warehouse held to be engaged in commerce) ;
McComb v. Herlihy, 161 F.2d 568, 570-71 (4th Cir. 1947) ; Clyde
v. Broderick, 144 F.2d 348, 351 (10th Cir. 1944).
Pot eee. er
te? TRI RP ET
LER ln Fee ha,
10a
tion — the retail stores (“there is a practical continuity of
movement of the goods until they reach the customers for
whom they are intended”), 317 U.S. at 568. The Court then
stated:
The fact that all of respondent’s business is not
shown to have an interstate character is not important,
The applicability of the Act is dependent on the char-
acter of the employees’ work [citation omitted]. If a
substantial part of an employee’s activities related to
goods whose movement in the channels of interstate
commerce was established by the test we have de-
seribed, he is covered by the Act. 317 U.S. at 571-72.
It is plain to us that the goods transported by appellant's
elevator operators (mail, parcel post and freight) continue
to flow in interstate commerce beyond the lobby of the office
buildings, where appellant argues the journey technically
ends, and that they do not come to rest until delivered to
the offices of the tenants. Furthermore, it is plain that with-
out the labor provided by the elevator operators in trans-
porting the mail and freight deliverymen throughout the
building, the interstate goods would not be delivered to their
intended recipients in each office. Appellant urges, however,
that the activities of the elevator operators, even though
related to the movement of goods traveling interstate, ean-
not be deemed to engage them in commerce since its business
is strictly local in scope. This argument fails, however, in
light of the numerous cases holding that applicability of
the Act depends not on the character of the employer’s busi-
ness, but on the nature of the employee’s work. See e.g.,
Jacksonville Paper Co., supra, 317 U.S. at 571-72; Mitchell
v. Lublin, MeGauhgy & Assoc., supra, 358 U.S. at 211.
Although we have not heretofore ruled on the precise
question posed here, namely, whether elevator operators
transporting mail and freight in an office building are en-
SWE wipe nttes Lect “Dine La
lla
gaged in commerce, we have had occasion to determine
whether elevator operators engaged in other activities sat-
isfied the Act’s coverage requirements. See, e.g., Mitchell v.
Sunshine Dep’t Stores, Inc., 292 F.2d 645, 647, 648 (5th Cir.
1961); accord, Suers. de A. Mayol & Co., Inc. v. Mitchell,
980 F.2d 477, 480-81 (1st Cir.), cert. denied, 364 U.S. 902
(1960); Fleming v. A. K. Kirschbaum Co., 124 F.2d 567,
571-72 (3d Cir. 1941), aff’d sub nom. A. B. Kirschbaum Co.
v. Walling, 316 U.S. 517 (1942). But cf. Johnson v. Dallas
Downtown Dev. Co., 132 F.2d 287 (5th Cir. 1942), cert. de-
nied, 318 U.S. 790 (1948) ; Tobin v. Girard Properties, Inc.,
206 F.2d 524, 526 (Sth Cir. 1953).
In Sunshine Dep’t Stores, supra, the elevator operators,
who were also warehouse employees, received, transported
and stored shipments of interstate merchandise. The goods
were delivered to the company’s warehouse by independent
carriers who deposited them at the foot of an elevator. The
earriers placed the goods on the elevator; the remainder of
the time they were so placed by Sunshine’s warehouse em-
ployees, some of whom then transported the goods by ele-
vator to the second floor of the warehouse. 292 F.2d at 646.
We held that the employees (elevator operators) so han-
dling the goods were engaged in commerce within the mean-
ing of the FLSA. 292 F.2d at 648.
In Kirschbaum, supra, the Third Circuit on facts similar
to those of Sunshine Dep’t Stores noted that elevator op-
erators were “directly engaged in commerce, for although
their activities take place entirely within the state they car-
ry out one step in the actual transportation of the goods to
points outside the state.” 124 F.2d at 572 n.5. Accord, Schultz
v. Blaustein Industries, Inc., 321 F. Supp. 998, 1008 (D. Md.
1971) (“elevator operators * * * who regularly and recur-
rently carried postmen delivering mail and persons deliver-
ROP EIA ROSY
neihehuan
FALE
i
Ne
l2a
ing materials moving in interstate commerce * * * were
engaged in commerce”); Wirtz v. Columbian Mutual Life
Ine, Co., 246 F. Supp. 198, 208 (W.D. Tenn. 1965), afirmed,
380 F.2d 903 (6th Cir. 1967).
Appellant relies primarily on two decisions, one of which
is distinguishable from the facts of the present appeal, 10
East 40th Street Building, Inc. v. Callus, 325 U.S. 578
(1945), and the other with which we disagree, Houchin y,
Thompson, 438 F.2d 927 (6th Cir. 1970). Although the faets
in Callus bear some similarity to those of the present ap-
peal, that case is not controlling because the issue there was
whether building maintenance employees were, by virtue of
the tenants’ activities engaged “in the production of goods
for commerce”, and not whether, as here, the employees’ own
activities engage them “in commerce.” Since Callus
did not consider the question whether elevator opera-
tors regularly and frequently carrying interstate mail
and freight shipments are themselves engaged in com-
merece the case is not helpful. We similarly distin-
8 Similarly distinguishable are two of our own past decisions deal-
ing with elevator operators that relied on the Callus decision,
Johnson vy. Dallas Downtown Dev, Co., 132 F.2d 287 (Sth Cir.
N42), and Tobin vy. Girard Properties, Ine., 206 F.2d 524
(19593), Neither ease controls the present appeal beeause in
neither ease was the issue raised whether elevator operators
transporting interstate mail and freight are engaged in com-
meree, In Johnson the issue was whether six elevator operators
Whose duties appeared to be limited to carrying passengers up
and down the building were engaged in the production of goods
for commerce by virtue of the tenants’ activities a question
we answered in the negative, 182 F.2d at 289. In Tobin, var-
ious employees of an oftice building owner, including elevator
operators, mechanics, janitors, and building maintenance engi-
neers, argued that they were engaged in commerce on the
ground that their work in a building 70° oeceupied by a tenant
engaged in interstate commerce, the Southwestern Bell Tele-
phone Co., was “an integral part of the operation of the tele-
phone company’s interstate system.” 206 F.2d at 526. After
noting that the test for determining whether an employee is
engaged in commerce “is not whether the employees’ activi-
13a
guished Callus in our recent decision in Hodgson v.
Travis Edwards, Inc., 465 F.2d 1050, 1053-54 (5th Cir.),
cert, denied, 41 U.S.L.W. 3346 (U.S. Dee. 19, 1972), where
we held that the employees of an office building corpora-
tion who regularly mailed monthly reports to out of state
corporate officers were engaged in commerce or in the pro-
duction of goods for commerce within the meaning of the
Act. 465 F.2d at 1054. We were there persuaded that even
though the monthly reports may have had no intrinsic value
and were for internal corporate use only, their preparation
and subsequent mailing by the office employees were suffi-
cient to meet the Act’s definition of commerce, i.e., “ * * *
transportation, transmission, or communication * * *”
among the states. And since the activities of the office em-
ployees clearly engaged them in commerce, we held that
the other building employees, including maintenance per-
sonnel, parking lot attendants, and a single maid/elevator
operator, were employed in a covered enterprise and thus
entitled to the benefits of the Act. 465 F.2d at 1052. If, as in
Travis Edwards, the preparation and mailing of monthly
reports to corporate directors and officers living out of state
engage those sending the reports “in commerce” then, a
fortiori, those involved directly in the transportation of the
ties affect or indirectly relate to interstate commerce but
whether they are actually in or so closely related to the move-
ment of the commerce as to be a part of it,” 206 F.2d at 527
(emphasis added), and noting that the decision in each case
must turn upon its own peculiar facts, id. at 528, we held that
the various employees were not engaged in commerce be-
cause their activities were too remote from the “in commerce”
activities of the tenant telephone company, itd. at 527-28.
As far as we determine, in Tobin it was neither alleged nor
argued that the elevator operators regularly and frequently
transported mail and freight deliverymen as part of their regu-
lar duties. Since neither Johnson nor Tobin considered that
issue, which is the central issue in the present appeal, those
two decisions, relying on Callus, are, like the decision in
Callus, readily distinguishable.
lta
mail (the elevator operators in the instant appeal) are also
engaged in commerce.
To the extent that appellant's other principal case,
Houchin v, Thompson, supra, contliets with our reasoning
in Través Edwards, supra, and because that decision at-
tempts to revitalize the de minimis doctrine in FLSA cases
(488 F.2d at 928-29)'* which has been discredited by the
Supreme Court in Maryland v. Wirtz, 392 U.S. 183, 192-93
(1968),?° and by this Court in Schultz v. Kip’s Big Boy, Inc,
431 F.2d 580, 535 (Sth Cir. 1970),1® we reject the Sixth Cir-
cuit’s rationable in Houchin,
IV.
In keeping with the Act’s remedial and humanitarian
4 The Court in Houchin stated:
“Where some inconsequential ineident of interstate eom-
meree happens to result from the general conduct of a
fundamentally intrastate business, the rule of de minimis is
applicable and the Act does not apply.”
438 F.2d at 928-29 (citation omitted)
15The only question for the courts is then whether the class lof
employee activities affecting commerce] is ‘within the reach
of the federal power.’ The contention that in Commerce Clause
cases the courts have power to excise, as trivial, individual
instances falling within a rationally detined class of activities
has been put entirely to rest.” 392 U.S. at 192-93 (eitations and
footnote omitted)
16 It was argued in Kip’s Big Boy, as it was in Houchin, that the
amount of time devoted by the employees to their “ecommerce”
activities was “inconsequential” or only “oceasional.” We said,
431 Pd at 585, that the regularity of the employee doing
assigned interstate work which is necessary to the normal
operation of the purely intrastate business should determine
if the employee is substantially engaged in interstate com-
merce, not the exact number of hours spent, for if Kip’s Big
Boy were not able to receive and store its shrimp, ete. when
they were regularly received, it would substantially damage
the business. Moreover, this court has held * * * that the pro-
visions of the Act apply to employees who spend one percent
of their time in commerce. (footnote, citations omitted, em-
phasis added to the word “regularity.”)
See also Montalvo v. Tower Life Bldg., supra note 9.
lda
purposes, and consistent with the Congressional intent
of extending coverage under the Act to the farthest
reaches of the channels of interstate commerce, see
Jacksonville Paper Co., supra, 317 U.S. at 567-68, the dis-
trict court correctly, we think, analogized the labor of
elevator operators transporting mail and freight to the
labor of truck drivers transporting interstate goods between
two points in the same state.’7 See Wirt: v. MeClure, 333
F.2d 45, 46 (10th Cir. 1964) ; Jacksonville Paper Co., supra,
317 U.S. at 567. We agree with the district court and the
Seeretary that both activities satisfy the “transportation”
requirement in the Act’s definition of commerce.'®
Tn the context of another Fair Labor Standards Act con-
troversy the Supreme Court, per Mr. Justice Harlan, ruled
that “the considerable discretion possessed by the Seere-
tary as the one responsible for the actual administration of
the Act should not be understressed.” Jdaho Sheet Metal
Works, Inc. v. Wirtz, 883 U.S. 190, 205, reh. denied, 383 U.S.
963 (1966). This Court is guided by that precept for, as in
all matters regulated by a Congressionally authorized
agency, judicial line-drawing in countless possible industrial
and commercial situations should begin with deference to
the expertise of the agency or administrator involved, es-
pecially in questions pertaining to the labor laws. See Phelps
In his Memorandum and Order dated August 14, 1969, the
district court said (sce Transeript, at 224-25):
The court is satisfied that construing section 203(s) to
include defendant's elevator operators is in accordance with
this intent and purpose of the Act. The relationship between
these elevator operators and the interstate freight carried in
the elevators is interestingly similar to that between truck
drivers and their interstate load. In each case the only real
relationship between the operator and the load being con-
veyed is the operation of the means of conveyance involved.
And the operator of the motor vehicle is clearly covered
by the Act.
(citations omitted).
18 See note 7 supra.
IDIOT WE FORO LE SPE LIOR NOI TE PE) + ~- + + WwEMon
l6éa
Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941); NLRB y,
Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969). Having
thus considered the relevant case law, Congressional in-
tent, and administrative practicalities, and believing as we
do that the FLSA should be given a liberal interpretation,
consistent with Congressional intent in favor of finding
coverage, we hold that appellant’s elevator operators are
engaged in commerce. Since appellant is thereby a covered
“enterprise” under the FLSA, the other named employees
are also entitled to the minimum wage and overtime benefits
of the Act.
The judgment is AFFIRMED.
Ath BD Pm - ee ee Rm De ae ee ae
17a
Appendix A
Part 2
United States Cut of Appeals
For Tue Firrx Crmceurr
Ocroser Term, 1972
No. 71-1813
D. C. Docket No. 69-C-52
Peter J. Brennan, Secretary of Labor,
United States Department of Labor,
Plaintiff-Appellee,
v.
Tue Wuson Bumping, Inc.,
Defendant-A ppellant.
Appeal from the United States District Court for the
Southern District of Texas
Before Brown, Chief Judge, Moore* and Roney,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the South-
ern District of Texas, and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment of
the said District Court in this cause be, and the same is
hereby, affirmed;
It is further ordered that defendant-appellant pay to
plaintiff-appellee the costs on appeal to be taxed by the
Clerk of this Court.
April 27, 1973
Issued as Mandate:
* Hon. Leonard P. Moore, Senior Circuit Judge of the Second
Cireuit, sitting by designation.
cremate amie te ananee dae ken nae ae ie Rigi:
18a
Appendix A
Part 3
In THE
United States Court of Appeals
For Tae Frere Circurr
No. 71-1813
Peter J. Brennan, Secretary of Labor,
United States Department of Labor,
Plaintiff-Appellee,
v.
Tae Wusow Bunning, Inc.,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
ON PETITION FOR REHEARING
(MAY 22, 1973)
Before Brown, Chief Judge, Moore* and Roney,
Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing filed
in the above entitled and numbered cause be and the same
is hereby DENIED.
* Hon. Leonard P. Moore, Senior Circuit Judge of the Second
Circuit, sitting by designation.
—— ne oe AS ae CRONOUS eo de ee +. arte rere
19a
Appendix B
Part 1
Georce P. Suuttz, Secretary of Labor,
Unystep States DerarTMENT oF LABOR
Vv.
Tue Wuiuson Buitprye, Inc.,
A Corporation.
Civiz Action No. 69-C-52
United States District Court,
S. D. Texas, Corpus Christi Division.
August 27, 1970.
Action was brought by Secretary of Labor to enjoin vio-
lation of Fair Labor Standards Act by corporation. The
District Court, Seals, J., held that defendant office building
owner and manager was an enterprise engaged in commerce
or in the production of goods for commerce within the
meaning of Fair Labor Standards Act and violated the
minimum wage and overtime compensation provisions
thereof, entitling Secretary of Labor to an injunction per-
manently enjoining defendant corporation from violating
the provisions of Act and restraining the withholding of
payment of minimum wage and overtime compensation
found to be due employees, together with interest at the
rate of 6%.
Judgment for plaintiff.
1. Labor Relations — 1141
Materials handled by janitors, maids, maintenance em-
ployees and mechanical engineers employed by corporation
engaged in ownership and operation of office building and
parking lots were not “goods” within definition of Fair
Labor Standards Act because such materials when handled
and worked on by such employees were in the hands of
ultimate consumer. Fair Labor Standards Act of 1938,
§3(i), (s) (5), 29 U.S.C.A. § 203(i), (s) (5).
“Sicn) ROE
See publication Words and Phrases for other judicial
constructions and definitions.
2. Labor Relations — 1164
Office building owner’s elevator operators were engaged
in commerce within meaning of Fair Labor Standards Act
where the interstate deliveries of mail, freight and parcel
post to office building were regular, frequent, and in sub-
stantial amount. Fair Labor Standards Act of 1938, § 3(b),
29 U.S.C.A. § 203(b).
3. Labor Relations — 1145
Office building owner and operator was engaged in related
activities performed through unified operation and common
control for a common business purpose and as such was an
“enterprise” within meaning of Fair Labor Standards Act.
Fair Labor Standards Act of 1938, §3(r), 29 U.S.C.A.
§ 203(r).
See publication Words and Phrases for other judicial
constructions and definitions.
4. Labor Relations — 1145, 1597, 1600
Defendant office building owner and manager was an
an enterprise engaged in commerce or in the production
of goods for commerce within meaning of Fair Labor
Standards Act and had violated the minimum wage and
overtime compensation provisions thereof, entitling Secre-
tary of Labor to an injunction permanently enjoining de-
fendant corporation from violating the provisions of Act
and restraining the withholding of payment of minimum
wage and overtime compensation found to be due em-
ployees, together with interest at the rate of 6%. Fair
Labor Standards Act of 1938, §§ 3(r), (s) (1), 6, 7, 11(e),
15(a) (2, 5), 29 U.S.C.A. §§ 203(r), (s) (1), 206, 207,
211(c), 215(a) (2, 5).
2la
M. J. Parmenter and William E. Everheart, U. S. Dept.
of Labor, Dallas, Tex., for plaintiff.
Owen D. Cox, Boone, Davis, Cox & Hale, Corpus Christi,
Tex., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SEALS, District Judge.
The Secretary of Labor, United States Department of
Labor brought this action to enjoin defendant from viola-
ting the provisions of sections 15(a) (2) and 15(a) (5) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.),
hereinafter referred to as the Act, and to restrain the
withholding by defendant of payment of any minimum wage
and overtime compensation found by the court to be due
defendant’s employees under the Act, together with interest
thereon at the rate of six per cent per annum from the
dates said amounts became due.
This cause having been tried before the court and having
considered the pleadings, discovery, stipulations, exhibits,
oral testimony of witnesses, and statements of counsel,
the court now makes the following Findings of Fact and
Conclusions of Law:
FINDINGS OF FACT
1. Defendant, at all times since February 1, 1967, has
been a corporation having its principal office and place of
business at 1701 Wilson Tower Building, Corpus Christi,
Nueces County, Texas.
2. Defendant, during the period since February 1, 1967,
has been engaged in the ownership and management of The
Wilson Building and The Wilson Tower Building, and
during the period since August 1, 1967 has been engaged
in the operation of The Wilson Tower Garage and two (2)
LE LPAI By 2 M0 xn va 2 32 echt Ces wor
22a
parking lots, all of which are located in Corpus Christi,
Texas.
3. Defendant’s annual gross volume of business done
for each of the years 1966, 1967 and 1968, was in excess of
$500,000, and its annual gross volume of business done for
year 1969 was in excess of $250,000.
4. United States mail and parcel post have been regu-
larly delivered directly to the offices of some of The Wilson
Building and The Wilson Tower Building tenants in every
week by United States mailmen during the period since
February 1, 1967, and in making such deliveries they use
the elevators located in said buildings. A substantial por-
tion of such mail and parcel post has been, and is being
mailed to these tenants from points outside the State of
Texas.
0. Freight has been regularly received by tenants in
The Wilson Building and The Wilson Tower Building in
every week since February 1, 1967. Freight delivered to
the tenants in such building above the street floor is trans-
ported by means of the passenger elevators in such build-
ings. A substantial portion of such regularly delivered
freight has been shipped from places located outside the
State of Texas direct to the addressee tenant.
.
6. There are two passenger elevators serving the Broad-
way Street entrance and two passenger elevators serving
the Leopard Street entrance to The Wilson Building. There
are no employee operators for the elevators at the Broad-
way Street entrance or at the Leopard Street entrance of
said building. There is no starter for these self-operating
elevators. The automatic elevators are operated by the
mailman in making regular deliveries and by mailmen for
parcel post and also by delivery men making freight deliv-
eries.
eee
23a
7. The Wilson Tower Building has four passenger ele-
vators serving it at the Carancahua Street entrance, which
during working days are operated, and have been operated
since February 1, 1967, by employees of the defendant. One
elevator can be, and is at night and on Sundays, placed on
automatic so no operator is necessary, and it is then op-
erated by the passenger. Ordinarily, from 2,000 to 3,000
passengers travel on The Wilson Tower Building elevators
(up and down) each day, 5 days each week, The passengers
are tenants, employees of tenants and clients, customers and
other persons doing business with the various tenants.
8. There are nine employees of defendant who are desig-
nated elevator operators operating elevators in The Wilson
Tower Building. Elevators which are operated by employee
operators carry passengers indiscriminately with no dis-
tinction as to the nature of business of the passenger. The
postman delivering mail has no priority rights to the use
of any of the elevators and he usually rides with other pas-
sengers. Passengers have prior right to use of the elevators
during business hours over freight and parcel post deliv-
eries.
9. A mailman makes two regular trips per day in The
Wilson Tower Building delivering mail. He is inside the
elevator about five minutes during each day. He does not
deliver mail to all the tenants each day, nor does he get
off of the elevator on each floor of the building.
10. The ground-floor tenants in The Wilson Building
and The Wilson Tower Building have outside entrances and
a few have entrances from the building ground-floor lobbies.
The employees of such tenants and their customers do not
use the elevators to reach the offices of such tenants, nor are
the elevators used to deliver regular mail, parcel post pack-
ages, and freight to such tenants.
RTOS LEN AONE RE ANS ABR LN CA PI hoe te ed eee nk J
Sears SRS.
24a
11. The time of the operators of the four elevators in
The Wilson Tower Building which is taken up solely in
carrying interstate freight, and mailmen who carry regular
mail and parcel post deliveries, is very small in comparison
to the time required of the operators in connection with the
other regular uses of such elevators. But the interstate
deliveries of mail, freight and parcel post to The Wilson
Tower Building are sufficiently regular, frequent and sub-
stantial in amount to constitute said elevator operators as
being engaged in commerce; and the elevator operators are
so closely related to the movement of commerce as to be a
part of it.
12. Defendant employs individuals who do janitorial
work in both The Wilson Building and The Wilson Tower
Building, such as cleaning the various offices which are oc-
eupied by tenants, cleaning and waxing hallways, washing
windows, keeping restrooms clean and stocked with soap,
toilet paper and paper towels, emptying wastebaskets,
vacuuming rugs, and similar types of work. All such ser-
vices are performed for the benefit of the tenants in the two
buildings and are required by defendant’s rental agree-
ments, either directly or indirectly.
13. Defendant employs individuals who do maid work in
both The Wilson Building and The Wilson Tower Building,
such as cleaning the various offices which are occupied by
tenants, keeping restrooms clean and stocked with soap,
toilet paper and paper towels, emptying wastebaskets and
dusting. All such services are performed for the benefit of
the tenants in the two buildings and are required by defen-
dant’s rental agreements, either directly or indirectly.
14. Defendant employs maintenance employees who do
such work as remodeling office space and making repairs in
The Wilson Building and The Wilson Tower Building. All
such work is performed for the benefit of the tenants in
— St laa SALTON LEI TS Oc AT bien we
25a
the two buildings and is required by defendant’s rental
agreements, either directly or indirectly.
15. Defendant employs one employee, Lupe Perez, who
regularly, since February 1, 1967, has replaced burned-out
light bulbs and fluorescent lamps throughout both The
Wilson Building and The Wilson Tower Building in tenant
offices, hallways and restrooms. The furnishing of such light
bulbs and fluorescent lamps is required by defendant’s
rental agreements, either direetly or indirectly.
16. All of the materials and supplies handled by em-
ployees of defendant doing janitorial work and maid work
and by maintenance employees and by mechanical engi-
neering employees are owned by defendant at the time they
are used in and around The Wilson Building and Annex
and The Wilson Tower Building, The defendant has com-
plete control over such materials and can change brands and
suppliers at will, without the consent of any tenant. The
soap, paper towels and toilet tissue in the restrooms can be
removed from the containers and replaced by defendant
at will and such materials are available for use, not only by
tenants, but by employees, clients and customers of tenants,
employees of defendant and sometimes strangers. The light
bulbs and lamps in the various offices of the tenants can be
removed and replaced by defendant at will without the con-
sent of any tenant. The light bulbs and lamps purchased by
defendant are used in the lobbies and hallways of the build-
ings owned by defendant, as well as in office space occupied
by tenants. The wax, detergent and other cleaning materials
are used in the lobbies and hallways of the buildings as well
as in the office space occupied by tenants, and are used by
defendant to preserve the halls, lobbies of the buildings, and
to keep them clean, as well as to keep the office space oc-
cupied by tenants clean and neat and in a state of preserva-
tion.
WB RAIS Sims Kae te ED FA a a “3 WORD 5 2 TSN Rd DTD
26a
17. The materials and supplies handled by employees of
defendant doing janitorial work and maid work, and by
maintenance employees and by mechanical engineering em-
ployees, are purchased by defendant from business concerns
in Corpus Christi, Texas. Soap, paper towels and toilet tis.
sue and the wax, detergents and other cleaning material are
purchased primarily from one distributor which owns the
materials on its shelves as a part of its stock of merchandise
for sale, and it sells and delivers supplies to defendant from
such stock of merchandise. The light bulbs and lamps are
purchased from a distributor in Corpus Christi, Texas, who
owns the stock of merchandise on its shelves, and it sells
and delivers such items to defendant from the stock of
merchandise the distributor owns and has on its shelves for
sale. The materials purchased by defendant, from time to
time, for repairing and remodeling the buildings, for the
benefit of the tenants during occupancy of office space and
for the preservation of the buildings, are purchased from
the Corpus Christi office of a business concern which does
business outside of Texas, as well as within the state. Such
materials remain the property of defendant. Tenants are
not entitled to remove from the buildings any materials
used in making repairs or in remodeling. A substantial
portion of such materials are processed in Texas before the
local office receives them. These materials are carried as a
stock of merchandise and are owned by the wholesaler for
sale to lumber yards and large individual purchasers, and
the supplies delivered defendant are from the stock of
merchandise on hand.
18. A substantial portion of the various materials pur-
chased by defendant to be used by employees doing janitor
and maid work and by maintenance employees and by me-
chanical engineering employees are shipped to the local
wholesale and retail suppliers from points within the State
of Texas.
ee PAR AD 4S ae ea canine tinineeemmanmaetmmiinenss
27a
19. But a substantial portion of the materials and sup-
plies handled by defendant’s janitors in the performance of
their duties in every workweek since February 1, 1967 was
manufactured outside the State of Texas.
90. Also, a substantial portion of the materials and sup-
plies handled by defendant’s maids in the performance of
their duties in every workweek since February 1, 1967 was
manufactured outside the State of Texas.
21. Further, a substantial portion of the materials in-
stalled and the supplies handled by defendant’s maintenance
employees in the performance of their duties in every work-
week since February 1, 1967 was manufactured outside the
State of Texas.
22, All the light bulbs and fluorescent lamps installed by
the defendant are manufactured outside of the State of
Texas.
23. There are no tenants in The Wilson Tower Building
and there are no tenants in The Wilson Building engaged
in the manufacture or production of goods for commerce.
24. The defendant is not, and never has been, engaged in
the production of goods for commerce.
95. Since February 1, 1967, defendant has compensated
certain of its employees at rates less than $1.00 per hour
during the period beginning February 1, 1967, and ending
January 31, 1968, at rates less than $1.15 an hour during the
period beginning February 1, 1968, and ending January 31,
1969, and at rates less than $1.30 an hour thereafter.
26. Since February 1, 1967, defendant has employed cer-
tain of its employees for workweeks longer than 44 hours
during the period beginning February 1, 1967, and ending
January 31, 1968, for workweeks longer than 42 hours dur-
ing the period beginning February 1, 1968, and ending Jan-
SERA BOAR re Sel AS BRN BUOMED ELAS AE SIMON WO IT
28a
uary 31, 1969, and for workweeks longer than 40 hours
thereafter, without compensating said employees for their
employment in excess of such hours at rates not less than
one and one-half times the regular rates at which they were
employed.
27. Since February 1, 1967, defendant has failed to make,
keep, and preserve adequate and accurate records reflecting
the hours worked each workday and the total hours worked
each workweek by many of its employees.
28. The amount of minimum wage, overtime compensa-
tion, or both, due defendant’s elevator operators, janitors,
maids, maintenance employees, mechanical engineering em-
ployees, parking garage employees, and parking lot em-
ployees has not been determined. However, such unpaid
compensation shall be computed as follows:
(a) All amounts due prior to March 24, 1967, are barred
by the two-year statute of limitations.
(b) The rates of pay, hours of work, and total earnings
of defendant’s employees shall be those reflected in de-
fendant’s payroll records and its daily or weekly time rec-
ords, except it has been stipulated that employee Lupe
Perez was paid a salary for a 40 hour workweek, that de-
fendant’s maintenance men were paid a salary for a 44 hour
workweek, that employee Ray Cipriano and Frankie de
los Santos worked alternating workweeks of 3714 hours
and 45 hours and that employee Edward Fromm worked
a basic 40 hour schedule.
(c) The regular rates of pay of defendant’s salaried em-
ployees shall be determined by dividing the hours of work
such salary was intended to compensate for into the salary.
(d) Employees who received a regular rate of pay of
less than the applicable minimum wage, as set forth in
29a
section 6(b) of the Act, during the period since March 24,
1967, shall be due minimum wage compensation equal to
the difference between what such employees should have
received if compensated for their work at the applicable
minimum wage rate and what the employees actually re-
ceived as straight time earnings.
(e) Employees who did not receive overtime compen-
sation for their employment for workweeks in excess of 44
hours during the period March 24, 1967, to January 31,
1968, in excess of 42 hours during the period February 1,
1968, to January 31, 1969, and in excess of 40 hours there-
after, shall be due overtime compensation equal to one-half
of their regular hourly rates of pay in such workweeks, or
the applicable minimum wage rate under section 6(b) of
the Act, whichever is the largest, multiplied by the num-
ber of overtime hours worked.
(f) Interest shall be computed on any minimum wages
and overtime compensation found due defendant’s em-
ployees at the rate of six per cent per annum from the
date of such minimum wages and overtime compensation
became due.
CONCLUSIONS OF LAW
1. The court has jurisdiction of this action and of the
defendant.
2. Defendant’s elevator operators, janitors, maids, main-
tenance personnel, and mechanical engineers were “em-
ployees” of defendant since February 1, 1967, and defend-
ant’s parking garage personnel and parking lot personnel
were “employees” of defendant since August 1, 1967 within
the meaning of 29 U.S.C. § 203(e).
3. None of the employees of defendants are, or have been
at any time material hereto, engaged in the production of
goods for commerce.
4. None of the employees of defendant are, or have been
at any time relevant, engaged in an occupation directly es.
sential to the production of goods for commerce.
{1} 5. Sinee February 1, 1967, defendant’s janitors,
maids, and maintenance employees have been engaged in
the handling of materials that have been moved in or pro.
duced for commerce and would, therefore, be covered by
29 U.S.C. § 203(s)(5) if these materials were to constitute
“goods”, as that term is defined in the Act, 29 U.S.
§ 203(i). But these materials handled by the janitors, maids,
maintenance employees and mechanical engineers are not
“goods” under the definition in the Fair Labor Standards/
Act because such materials when handled and worked on
by said employees are in the hands of the ultimate consumer.
[2] 6. Since February 1, 1967 defendant’s elevator op-
erators have been engaged in commerce (29 U.S.C. § 203(b).
See Wirtz v. Columbian Mutual Life Insurance Company,
246 F.Supp. 198 (D.C.W.D. Tenn. 1965), affirmed 6 Cir.
380 F.2d 903; Wirtz v. McClure, 333 F.2d 45 (CA 10, 1964).
[3] 7. Sinee February 1, 1967, defendant has been en-
gaged in related activities performed through unified opera-
tion and common control for a common business purpose
and, as such, has been an enterprise within the meaning
of section 3(r) of the Fair Labor Standards Act of 1938
(29 U.S.C. § 203(r)).
[4] 8. Since February 1, 1967, defendant has been an
enterprise engaged in commerce or in the production of
goods for commerce within the meaning of section 3(s)(1)
of the Fair Labor Standards Act of 1938, as amended (29
U.S.C. § 203(s)(1)).
eo—_~” “ —s a ae _ _ ees
3la
9, Since February 1, 1967, defendant has violated the
provisions of sections 6 and 15(a) (2) of the Act. (29 U.S.C.
4§ 206 and 215(a)(2)).
10. Since February 1, 1967, defendant has violated the
provisions of sections 7 and 15(a) (2) of the Act. (29 U.S.C.
4§ 207 and 215(a)(2)).
11. Since February 1, 1967, defendant has violated the
provisions of sections 11(¢) and 15(a)(5) of the Act and
the Administrator’s regulations issued pursuant thereto.
(29 U.S.C. §§211(e) and 215(a)(5) and 29 C.F.R., Part
516).
12. The plaintiff is entitled to an injunction permanently
enjoining defendant from violating the provisions of sec-
tions 15(a)(2) and 15(a)(5) of the Fair Labor Standards
Act of 1938 (29 U.S.C. § 201 et seq.) and restraining the
withholding by defendant of payment of minimum wage
and overtime compensation found to be due defendant’s em-
ployees since March 24, 1967, together with interest thereon
at the rate of six percent per annum from the date said
amounts became due.
Counsel for plaintiff will submit an appropriate judgment.
ee;
IE ON
32a
Appendix B
Part 2
United States District Cont
For Tue Sovurnern Disreict or Texas
Corpus Curist: Drvision
Crvm. Action Fre No. 69-C-52
James D. Hopeson
(Successor to George P. Shultz),
Secretary of Labor, United States Department of Labor
Plaintiff,
Vv.
Tae Wuson Bumping, Inc.,
a Corporation
Defendant.
JUDGMENT
In accordance with the findings of fact and conclusions
of law signed and entered in this action on August 27,
1970, it is:
ORDERED, ADJUDGED and DECREED that defend-
ant, its officers, agents, servants, employees, and all other
persons acting or claiming to act in its behalf and interest
be and they hereby are, permanently enjoined from vio-
lating the provisions of sections 15(a)(2) and 15(a)(5)
of the Fair Labor Standards Act of 1938 (29 U.S.C. 201,
et seq.) hereinafter referred to as the Act, in any of the
following manners:
eo7oX teat to Pe eA eed en on s oat a a
Defendant shall not, contrary to sections 6 and 15(a) (2)
of the Act, employ any employee in an enterprise engaged
Appendix B
Part 2
in commerce or in the production of goods for commerce,
within the meaning of the Act, at rates less than the
minimum hourly wage rates specified in section 6 of the
Act.
I.
Defendant shall not, contrary to sections 7 and 15(a) (2)
of the Act, employ any employee in an enterprise engaged
in commerce or in the production of goods for commerce,
within the meaning of the Act, for a workweek longer than
40 hours, unless such employee receives compensation for
his employment in excess of such hours at a rate not less
than one and one-half times the regular rate at which he
is employed.
Il.
Defendant shall not, contrary to sections 11(c) and
15(a)(5) of the Act, fail to make, keep and preserve ade-
quate and accurate records of the persons employed by it
and of the wages, hours, and other conditions and practices
of employment maintained by it, as prescribed by regula-
tions issued by the Administrator of the Wage and Hour
and Public Contracts Divisions, United States Department
of Labor (29 CFR, Part 516).
It is further ORDERED that defendant be, and it hereby
is, restrained from withholding payment of minimum wage
and overtime compensation in the total amount of $62,723.09,
34a
which was found by the court to be due under the Act to
defendant’s employees named in Exhibit A, which is at.
tached hereto and made a part hereof, in the amounts
stated therein, together with interest thereon at the rate
of six percent per annum from the date said amounts
became due.
The provisions of this order shall be deemed satisfied
when the defendant delivers to the plaintiff a cashier's
or certified check for each employee named above, payable
to the named employee, or “Wage and Hour Divisions-
Labor” in the total amount of compensation due each said
employee, together with interest thereon at the rate of six
per cent per annum from the date said amount became due,
less appropriate income tax and social security deductions,
Payment of said amounts shall be made within thirty (30)
days from the date of this judgment.
ORDERED that plaintiff distribute the proceeds from
said checks to the persons named in Exhibit A, or to their
estate if that is necessary, and any money not so paid within
three years of the date hereof, because of inability to locate
the proper persons or because of their refusal to accept it,
shall be covered into the Treasury of the United States as
miscellaneous receipts.
The costs of this action will be paid by the defendant.
Dated this 2nd day of March, 1971.
TAN disumiisianaiiente Cate
United States District Judge
e - >. POR oe Slr
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