# Transcript of Record — Arsenal Building Corp. v. Fleming > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0043%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1942 - **Citation:** 315 U.S. 792 ## Text TRANSCRIPT OF RECORD Se eae ‘Supreme Court of the United States Sd ’ OCTOBER TERM, 1941 4 ; : e ; a - No. 924 are ana . ; ) _ ARSE NAL- B ALDI G CO ORATION AND SPE. AR. rye ¢ Ge: , PETITE NERS, . : L. METCALFE WALLING, ADMINISTRATOR OF THE WAGE AND HOUR” DIVISION, UNITED: STATES DEPARTMENT OF LABOR. Se ; LS } \ om wart OF CERTIORARL TO THE UREED STATES CIRCUIT cceter oF APPEALS FOR THE SECOND CIRCUIT PETITION FOR CERTIOR: ARI FILED, FEBRUARY 5, 1942. od _ CERTIORARI GRANTED MARCH 2, 1942. | ~, ang ‘SUPREME COURT OF THE UNITED ‘STATES ‘ OCTOBER TERM, 1941 — a ae & 924 ARSENAL BUILDING ‘CORPORATION AND SPEAR & bare INC., nha a etc v8. ° de he METCALFE WALLING,. ADMINISTRATOR OF THE WAGE AND. HOUR” DIVISION, . UNITED ‘STATES DEPARTMENT OF lex ackias o : 2° pire | - ON WRIT OF CERTIORARI TO THE. UNITED STATES cIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT os ° e ms we - : -4 INDEX. Be ; Page ‘Reeord from'D.’C. U. S., Southern District of New York............ A ‘Statement under Rule 13, Subdivision 4................0.e008: rae * Summons .&.........-60.: Pesvicnscs Sati hakvhawinesksces 2 Amended complaint ....... bivsurcn se AAAS URES HONE iawn 2 Amended QNSWEF 2.2... 8eecccececcceees fe epeseveecdeccssneces *: 6 . Minutes of yre-trial conference ........ eevee eeegeccececccens bes : ee 19 19 29 t Ae I 61 . ee Oe eer er ee eeeyr ire eetegee : * Saree —EGOEEY TOM oo icc cc dececscccvcccccccssigers * FS SRR ONO wivso y's 6s web dees cusses renter 75 A eer eres Viadvostnecdabess * 80 ‘Joseph Ferdinand ........... ‘ep tabeeviay espe 84 ° _ Mggiuel Longueria .......... Wigptevsbicct¢e: Vaan c- * , . * Jegephla Martines ««. i600. cscces ij epeceehwcern 128 . Morton Gural 62.2 605....20. Recess inseuee ds . 130 ee rr errr ry eee yer phendoer kaa Julio Devalle ......... ecosesensai peesececee 190 RE TES a wiwctnpeapsanvccses cede Vevevcbess . 140 Benjamin Sterns¢huss gbecee bor ensesen pes ope 155 * NG TONE So bk gins ia dep ad endedas 169 Jupp & Derwerter (INc.), Priwrers, WASHINGTON, D. C., MARCH 17, 1942, vd ; eK: ee ae re di INDEX = 3 . “ Record from D. C. U. 8. Routhiern District of ‘New. "York —Con-—~ re 4 ao, aR TEERTE nt "Statement of evidetiee—Continued ; Se. of-—Continued Page Irving Diamond éné ee nS a's pes'eebecs=seeeee 178 _ Maurjce R. Spear... ..-. 0-6 -eereeeeeeeeeees 182. 3 ‘Lazare Teper ........ Sean ais shat “eeeecetses 187 eas | ‘ Arthur J. Nebel épeebacnkevapenvabsese gtteee 198 . Georgé W. Silvera (recalled) edosccceccceese. B12 em ‘ Joseph Ushelevsky «........ Ceaeet Wee wdbike 219 ‘ Andrew. Loebl stceeecseseececeeceseeessscey 226 Abraham Schenker ...:....--+ eeviveceyeces, 227! a _ Plaintiff rests sass ee ee eee vidinwees sabeeaneene 231 ‘Testimony of Leon R. Spear,....,.....+.- ee eer eos | 231 Oral argunient on behalf of plaintiff.-........ Favtede succes - 236 - - Oral argument on behalf of defendants ....-.......- efopen. 204 ’ Stipulation regarding the exhibits .......-...++++ Sabkwewtes - 287. : Plaintiff's Exhibit 6 ......:....6055 bahwacteecepepoueses.: Wee. Received at ........seeee bastes Sparen intoeets nba want (109 - Printed: at... ccc ccccksecsvcescess haeenetnosisvet’ » 238 — Plaintiff's Exhibit FT ccndacdack caphade quakes oye Upaes saree 289 ef ~ Received, OO ios csc saasedecewes pans Ries peesecess | ee Printed. at. -....-00..000- peeuawee etebep ENE pdeee eaece, 2D laintiff's Exhibit 8 elec erent eee e eee we eee ce semenenaes 289 qheceived DG oS ivslewire occ 0 BG cbc ces eevee teases es ows .110 Printed at ..:... Abe sekeeenee hehe ce ee nntiseee wees _ 289 Plaintiff's Exhibit 9 ..... Sut teancdsecuces CkgEAG TS deukon Received at ...icccccccccciccecccecenicsseevgubevens 111° Printed at ...iccceceeee eee e eee e eee eeeenseeeeenes io 2 . Plaintiff's Exhibit 10 ........... Perc, Tee ere ee. peuubink. a Received at ......00+ peasprehecseers 8 go ge 1 ONE Ee esiee'e fhe PeseUbst sews dab enenieccaes. - Oe Prine OE isc esecee es Reka id bacca a Weaeabaciass oe 888 Findings of fact and conclusions * y Seee Lh bhdasshacune - 326 Opinion, Woolsey, Deere eve neececsces sens peieseeseecees totes tag 330 ' Judgment ............., Jitoseoge Jeapoesseosere Nebipupvesesdy 338 Notice of appeal ....... NVMCLAASSSROREA SR RU RAN SECE ER GSS ERS CPs OOO Stipulation designating portions of record to - ‘contained in EY OU AG Sd Kovk in beta centedeverscrcescs Cre 339 Stipulation regarding , ree ef exhibits........ tt teeeeee 341 Cherik’a certiBente: 2.50 cc cccccccccccgccccetece bao bo ima a> frases ‘BA2 Proceedings in U. 8. ©. Cc. A. Second Cirguit. Saks eis date aan Rxiwren 343 Opinion, Hand; J. owscesesces Segiiene cous baUEU RS bee 655 S : “J “ : ae . | Plaintiff brings this action ‘to enjoin: didiniinnts diets vio- lating the provisions -of Section 15(a)(2) of the Fair Labor Standards Act of 1938 (Act of June 25, 1938, ec. 676, 52 Stat. ss» 1060,-U. S.C.:; Title 29 29, Sec. 201, et seq.); hereinafter called the Act. ‘eee * : ar Eien s te) . Jurisdiction of this action is conferred upon the Court by. ‘Section. 17 of the Act. © gS " ; ; ? ; ; \“ ae 2 e : . r A ° te ° & Ate , : 8 s o 2 -¥ - E ad ; iL ° Defendants aré, ef at’ all times- herginafter mentioned ; were, corporations organized and ‘existing by Virtue of the laws of the State of New York, having their principal places of business at 225 Fifth Avenue. in the City, County, and State of New > f ork, within the —— of this Court. - P and received in interstate commerce from and through states other than the State of New Yor and substantial quantities of such goods -have been and. are being sold, transported, shipped.and delivered in interstate commerce from id build- ing-in the State of New York to, into, and Psihne states other than the Sate of Bac! a The: said forty (40) Jo=. WB O-e \ riser 28 _tenants euneedh in 1 ‘produéing ladies’ ebtineanlas and thie said “Two (2) tenants engaged i selling silks, are therefore engaged. _ in interstate commerce, as s aforesaid. i de the Progugtion thereof. . refused to compensate them for such excess hours at any rates. ae | ee ae At.all times hereiriafter mentioned, defendants have em- ployed approximately twenty-nine (29) emphoyees. in and about said building who are engaged in interstute ¢ommerce, as aforesaid, and in the production of said goods for inter- . state cominerce, or in re or occupations necessary to. ee. | Se ee rae “During all times ‘hereinafter somone: daleciieah: Spear & Company, Inc., as agent for, and for the account of, defendant... Arsenal Building Corporation, had and has the control, diree- tion, and supervision of such employees. By so doing, de- “fendant, Spear & Company, Inc. has acted and is acting: in the interest of defendant, Arsenal Building Vorpoagnn, in relation to such employees. | , ‘2. Seesaae Dato @ the edie RE Qctober 24, 1938, the effective date of Section 7(a)(1) of the Act, and continuously through October 23, 1939, defendants employed the aforesaid em- - ployees, who were engagéd in. interstate commerce, and «in the production’ of goods for interstate commerce, ass afore- _ said, for Wworkweeks longer than forty-four (44) hours, and did fail and refuse to ‘eumpensate the said employees for their employment in éxcess of forty-four (44) hours in such work: weeks af rates not less than one and one-half ‘times the regular © rates at which they were employed, “and, in fact, did fail and refuse tO compensate them for such. excess hours_at any rates zreater than the regular rates at which ‘they were employed; and, during the period beginning October 24, 1939, the effec- tive date of Section 7(a)(2) of the Act, and continuously to the date hereof, defendants have employed the aforesaid em- ployees who were engaged i in interstate commerce, and in the production of goods for interstate commerce, as aforesaid, for workweeks longer than forty-two (42) hours, and have failed and refused to compensate the said employees for their em- ployment in excess of forty-two (42) hours in‘such workweeks at rates not less than one and one-half times the regular rates at which they were employed, and, in fact,. have failed and greater than the regular rates at which they were © employed. ‘ & on RMI wor | : Ry . As : i “ \ @ A oe 2 3 \ ; “6 : . ‘ ° ~~ 4 employing the. said employees for worky “ eating them for their employinent in excess of th said hours - é , - in such workweeks at rates not less than one and one- “the regular rates at which they were employed, defendants — have violated and are. violating- the prov isions of Seetionis Z “and 15(a)(2) of the “Act. + F | The site attend an sold by said tenants, as aforesaid, compete with similar goods produced and sold in other states and said tenants in their said businesses compete with manu- ~~ facturer of ladies’ garments and -with persons selling silks, _ rayons, supplies, and printed materials at wholesale, ‘as afore- said, clseraisin in other states. f Sw - Nefendants have, since ‘thaps ‘effective date thereof, contin- ~~ uously violated the aforesaid: provisions of. the Act and > threaten and intend to continue to violate theesaid provisions -: unless enjoined and restrained by a judgment of this Court. . : 4 . a. XI he . : : A judgment. enjoining and restraining the violation here- —inabove e alleged i is specifically, authorized by Section 17: of the ot. / Wherefore, plaintiff demiands si {training defendants, their officers, agents, servants, employ- pes, and attorneys, and all persoris acting or claiming to act n their behalf and interest, from violating the provisions of Section 15(a)(2) of the Aet, both permanently and during the pendency of this action, and such other ald further relief | as may be necessary and appropriate. Tae: _. Ggrrarp D. Retry, e ‘ Ree ee ees ‘Solicitor, * faves J.-Levy,. a Assistant Solicitor i in Charge. of Litigation, : “; ArTHUR E. ReyMan, Acting Regional: Attorney, na InvinG Rozen, ° ” © * Senior Attorney, United States Department of Labor,. Attorneys for Plaintiff... Post Office Adee: w age and Hour Division, United States — of Labor, 341 Ninth Avenue, New York, New’ or 9 ks in excess — nent enjdining and Oo" 6 “gy - Ih the above-entitled cause, respectfully allege: | [CAPTION] . Amended answer 7 The de ferglants, Arsenal Building Corporation ssid Spe Company. Inc., for their aliswer. to the amended comp 1. Deny each and every ein sft an Paragraph Hf of amended complaint. | Admit the allegations i in Paragraph III of;the amend complain vi - 3. Admit he allegations in Paragraph IV tof the-amend complaint. « - $ complaint except deny that said tenants engaged in ‘produci 4. Admit the allégations. in Paragraph Vv of the amended. “ ladies’ garments. and ‘said tenants engaged in selling silks m -engaged in interstate commerce: 5. Deny each.and every allegation in Paragraph VI of the “amended complaint, except that defendants admit that de-: fendant Arsenal Building Corporation from time to time em- . ployed approximately twenty-eight (28) employees in and about said buildmg at the. times. mentioned" in the amended - complaint. 6. Admit the alledetione i in i dees VII of the amended, * . complaint. ~ aniended complaint. 7, Deny each and every allegation i in Paragraph VIII of the. ~ amended complaint, except as and in so far asjany such allega- ° tion is or inay be-achnitted in paragraphs 13 to 20 inclusive of this, answer: and as to such allegations, adinit and allege | them. ’ §. Deferidants are without knowledge or information suf- ficient to form a belief as to the truth of ‘the allegatféns in Paragraph IX of the amended complaint: ° 9: Deny each a4 every allegation in Paragraph X of the ‘amesde «d complaint. 10., Deny each and every allegation in Paragraph Xi of me, a ‘ FIRST DEFENSE sat ole 11. The. amended complaint. fails ‘to’ ‘tate a claim against . the defendants or F either of them ‘upon which relief can be “granted., Sisco "SECOND DEFENSE | ee 12,. Thay the Fair hays ta Standards Act of 1938 (Act of _ June 25, 1938, ¢. 676, 52 Stat: 1060; U.S. C., Title 29, See. 201 | et seq.), in so far as it may be held applicable to the defend- / 9 >. 4 , ; a : ; - t A > » 7° : “-* e ants, Arsenal Building Corporation and Spear & Cothpany, Inc., and to the said employees of defendant Arsenal Building Corporation, employed in connection with the operation of the premises described in the amended complaint, is uhcon- - gtitutional as contravening Articles V and X of. the amend- ments to the Federal Constitution and as not. within the power delegated to. the Congress by Article I, Section 8, Clause 3 » thereof, or by any other provisior“of the said Constitution or any amendment thereto. THIRD DEFENSE—SEPARATE AND PARTIAL 13. That on or about February 19; 1936, defendgnt, Arsenal x. : Building Corporation, through an employers’ association of - which it was and is a mage Se entered into a certain agreaméNt in writing with a labor union represénting the em- ployees of said defendant, Arsenal Building Corporation, ap- proximately 28 in number, employed in connection with the. - operation of the premises described in the complaint, which - said agreement, together with certain written nrodifications thereof, was in full force and effect to and incliding January 31, 1939. ference jto said written agreement and written, ‘ » modifications thereto jis made with the same force and effect as though they were herein set forth in full; and the same will be produced upon the trial of this action. _: 14: That said agreement in writing provided a schedule of mingnum wages, a schedule of maximum hours, and other _terrys and eonditions of employmetit applicable to said em- _ plifyees ‘of defendant Arsenal Building Corporation,..that ‘ationg other things, the saidggreement provided a maximum ms pe weekly. hours of employment for certain classes of em- plgyees of forty-eight (48) hours per week, and for certain ther classes of employees of seventy-two’ (72) hours per ‘week, and that the said agreement provided certain specified holidays. au ene ! 15. That said agreement in writing further provided that all hours worked in“éxcess of said forty-eight (48) hours per week, or seventy-two (72) hours per week, respectively, or | gon any of the several holidays specified tliereing should be - compensated for at-the rate of time and one-half of the regu- ‘lar rate of pay. Ft, 16. That said agreement in writing by amendmegpt effective February 1, 1938, further prdvided for certain aw of em- - ployees a maximum’ workweek’ ofgsixty (60) hours in place and instead of the previously effective maximum workweek . of seventy-two (72) hours per week. ees ve ; : ‘ 7 & 17. “That trot October 24, 1938, to aiid including ns 31, 1939, the said employtes | of the defendant Arsenal Build- ing Corporations. were compensated for any and all hours worked in excess of forty-eight,.(48) hours per week, or sixty - (60) hours per week, respectively, and for.any and all hours worked on any of the specified holidays, at rates not less than - one and one-half tires ithe regular rates at which they were —_ yed. 8. That on or about’ February 4, 1939, defendant Arsenal “Building Corporation, thfough an emplogers’ association of _ which it. was and is a member, duly entered into a certain . agreement in writing with a labor union representing the em-. ployees of said defendant Arsenal Building Corporation, ap- "proximately ‘in number, employed in connection with the operation .of the premises described in the amended com—; TheCovr?. Can you concéde any of these facts? ‘Mr. Rozen.’ Some of the facts: we have asked the defendant Ao conced, and some he has already conceded, ‘but some he . ° a ° aad . . * . =e °” . > . . ~ & tenants he got all the information which he now appears 1 not. = ' to have. : - Nevertheless, when Mr. Rozen. wrote us and called us. on the phone the other day, we again app¥oached the tenants and asked them if they would give us the information so we might tabulate it for him; and they, not being’ connected with the defendants in any way, financially or otherwise, told us that they: would not give us any information; that it was ° not any of our business; and I cannot say that I ‘blame thei. the amount of garnients the teiants produce, or their gross ~ . The landiords are not cre ene to be interested in business or anything of that sort. So although .we tried to make the effort, we were unsuccessful; and I am afraid we cannot supply this information from tenants: If, however, Mr. Rozen can get it, and wishes us to agree that it is a fact, without our having to concede the. materiality of any par- ticular fact, we would be glad jo do so. oS Mr. Rozen. Well, what I can do; of course, your Honor. . is to prepare the questionnaire I referred to, and go to the tenants ourselves and /explain to them that it is in an effort » to save their time and convenience if they cooperate with us. The Court. All right, then let the defendant have the answers to these questionnaires and he will conéede them without admitting the materiality or relevancy. Mr. Rozen. There won’t be any question about authen- ticity? . ire The Court. That i is right. ; Mr. Rozen. I think that could be worked: out wattatne- torily, provided,’ of: course, we have the right, as we un-- questionably do, to submit some’of the-tenants. Now, your Hovor, iv this case the defendant has raised certain defenses—— ‘Mr. Cuirton. Are you passing from the facts? E. : Mr. Rozen. Well, L have got certain things listed here. I ‘would like to go in that order go I won't miss any of them. Mr. Cuirton. Well, just on the question of facts, there is just. one other thing I would like to eall the Court’s attention to. Mr. Rozen also asked us to furnish him information which was purely within our knowlgdge. We wrote him _under date of February 26th, stating we would produce that - information in advance of the trial, but we would like an understanding with him that if we did, it would be ‘for the: - purpose of shortening the trial, and that he would not seek ‘to prove independently and all over — the facts which a ; G -c ~ to ask an using that word—but anyWay, we.are going to try to shorten’ the trial as*much as we possibly can. - ree ee ae he tr eS we were. e willing to concede. We asked him to reply, and to dai we have had no reply. I wonder if he eares to answer now. Mr. Rozen. Of course, your: Honor, any ‘information that the defendant supplies us with gill be used to the best ad- vantage; and as I stated to your, Honor, we are going tostry to shorten ty trial as much as we possibly can, and it is silly opposing counsel—pardon ‘me, Mr. Clifton, for The other request is whether we are going¥to object to the 7 autheriticity of the documents supplied—— The Court. What are these documents? Mr, Rozen. I am ‘glad your Honor asked that ioe: be causé we would dike to have it in the-reeord, because Mr. Clif-- ton has agreed. This will save a great deal of time in this’ ease. ‘It is an exact transcript of the actual pay rolls of the - maintenance employees frofn October 24, 1938, to. the date ‘of. trial. -And on that I also asked Mr. Clifton to let me have’. the names of the employees and, their positions which they . occupy. I assume that will appear on the payroll? —- Mr..Cuirton, Yes. Mr,,Rozen. That will be ‘elbleckaie. your Honor. Mr. Clifton also states in his letter that he will furnish .us with available copies of ‘the leases of the tenants. Mr. Cuirton. What I meant jis that we. would have them available. ] pak, Mr. Rozen. That means all copies of all leases, I assume? Mr. Cuirton. Yes. Mr. Rozen: Your Honor, Mr. Clifton also stated that he had the actual rent bills and other bills rendered to the tenants for, the last few a showing charges for electricity, and so forth.o ‘1 think, Mr. € ‘lifton, I would like to have. the bills for the lastsix months showing not only electricity but also’ water Mr. Cuirron. No water. Mr. Rozen. Some of the tenants, I believe, do pay for water: Mr. Cuirton. I say none. . / Mr. Rozen. In the past, at any rate, a year or so ‘ago, there -were,¢ases where tenants paid for water: I have seen rent “pills & 2 | ! hat showed that... - Mr. CLIFTON. - Apparenitly that is not so. Mr. Rozen. I would like to have the fact, if it is, when. that practice ceased, if that is the fact, and for a period of six months prior to the cessation of the practice, to show the amount of water bills paid ‘by the tenants; and any other “3 t « v 2 ’ - . eee oe “15 dhdiete that there weet ‘be to the tenants. vs the landlord for any other services that we ave not aware of at’ the present- « - time. “And-also a tabulatién showing the stock ownership of: each defmdant, as well as the officers and directors of each defendant.. ‘ _ Mr. Currton.. I do. uk see, your Honor, in any of those cases . that’ it is going to be necessary. for Mr. Rozen to make any _ extended independent check. - : Mr. Rozen. I do not think it will, either. ‘Tam sure we can - ° wes rely on the authenticity of the documents furnished by Mr. > Clifton. —. | . , The Cowrrt:. All right. a5 : cs ‘Mr. Rozen. ‘Your Henor, we have joined in this action the defendant Spear & Company because Spear & Company was the managing agent of the building, and the allegations with respect to Spear & Company were’ virtually admitted; é that under our Act. Section 3¢d), Spear & Company, I think, would be conceded by defendant to be the employer of these -employees, at least for the purpose of-this injunction. f think it would be very helpfuF in the trial, and would shorten it considerably, if the defendants would concede that fact, * so that’ we could eliminate that point from consideration. Of course you need testimony otherwise to prove those facts. Mr. Ciirton. Your Honor, it is tradition 1 in the real estate industry in. New York under managemciit contracts, of which . this case is an example, that the employees employed in a ‘| particular building are always—i can say almost without any exception—the employees .of the owner. That is true | wider the Social Security Law, the owner is the one who is* /- © responsible. for these: payments; the same is true of the Un- : employment Insurance, Law of the State of New York, atid the same is true of the Workmen's Compensation Insurance, and varios other matters of that type which apply to. the , . _ personnel employed in this. type of building. What we do concede heresis that in the control and direc- tion of these working forces, telling the employees what to do, what their shifts are, paying then off at the end of the week, and so forth-—— ° Mr. Rozen. Hiring and firing? - ~ - - . Mr. Curro. Possibly. But the owner reserves the right specifically under the management contract ‘to veto, any such instructions issued by the agent. The net result is that Spear | _& Company acts as the agent for the owner in all of these matters as well as in the collection of rerits and: the tenting of space, and so forth. So that I am unable to ‘concede, _ because I do not believe it to be : a fact, that the employees, b _ — . o | agg 2 ‘are the employees of the agent. But I do admit, I think, in . the answer, that so far as this oe * eoncerned, the Govern. ment, if it sueceeds, is entitled have Spear &, Company and the ownér jointly bound by the terms of the: Testraining order. . The Covrrt. I hoa think so. : Mr. Rozen. In other words, if we ‘show tict ‘the mainte- nance ‘employ ees are entitled to the benefits v1 the Act, an * injunction will issue against Spear . & Company and the Arsenal Building Corporation? Mr. Cuirrox. As I pointed out to Mr. eben | before, the usual form of an injunction runs against the defendants, its agents, servants. and so forth. ae The Court. Yes. Mr. Rozen. Your Honor, in defendant’ Ss answer (handing to ‘Court),- the answer of the deféndant, as you will see, ‘your Honor, contains four or five affirmative defenses. Of course ~T am sure that Mr. Clifton interposed these defenses in good ’ faith; but I think that time has now shown that'some, if not - trial conferences, but I all of them, are not proper at this time. I do not know exactly . ‘think that a great deal of time at the _ the limits 6f-your Honor’y authority and jurisdiction at pre- trial could be saved if some of them .could be disposed of at this time. The Court. Well, first there are questions. of law, aren’t there? -. Mr. Rozen. Yes. There’ cannot be an¥ question at all but what the first ‘two are absolutely invalid. - aso The Court. Do you stand on those defénses? Mr. Cuirton., The defense proposed in paragraph i2 we do’ ‘not stand on at this time, because we were satisfied some time subsequent to.the filing of our answer that there was juris- © diction; j Mr. Rozen. That is withdrwwis? cnet ‘ Mr. Cutrron. That is withdrawn. - As to the jurisdiction of the subject matter, I think I per like for the present tc have that remain because of its interrela- ‘tion with the other defenses. The Court, That may have a bearing upon the proof as to _ the extent of the business done in interstate commerce. - Mr. Rozen. Your Honor, under the statute, under Section 17 of the Act, which I have given you, the District Court of the United States is given jurisdiction over actions for®jin- junction. So I cannot possibly see how there can be any doubt - about the jurisdiction of the subject matter. - Mr, Cuiirron. You are assunling that the Act sis, lies. Ss -. has misstated the purpose: of this defense. We make no claim’ | oa ee ee Mr. Rozen. Even if it does not apply. We have got to eae that question tested. out somewhere. - The Court. I think I will overrule that defense. tl ae Mr. Cuirron. Allright. . Mr. Rozen. ‘Thank you, your Hoior. Now, the fourth defense is one of constitutionality. The Court. Has the Attorney General been notified? — Mr. Rozen. I believe the proper steps have been taken in , this I will make sure about that. ° I am glad your Honor sugge hat. - Since the complaint was drawn, and since the answer. has been interposed, the United States Supreme Cotrt has ruled that, the Fair Labor Standayds Act is constitutional. As a matter of fact, it came dowr? only a few weeks ago, February 3, 1941, the case of the United States of America, against Darby . Lumber Company; so I can scarcely see the merit of that at. eae ’ this time. At the time it was interosed—— Mr. Cuirton. I think Mr. Rozen unintentionally, perhaps, that this Act ‘is unconstitutional generally, or that there are not certain situations to which it'might not be validly applied; but we do say if it is applied to the defendant and these em- ployees, then it is unconstitutional. : The Court. All right. ’ Mr. Cuirron. I think that is quite a different hing: and that issue was not passed upon in the Darby case or any other case. Mr. Rozen. Well, it is a question of the power of Congress to enact. legislation with respect to these employees. © The Court. That is not going to hurt you. . -Mr. Rozen. No; but I would like to conserve the Court’s ° energy ané our own, té@° But if we can’t get Mr. Clifton to see the light at this time, we‘ will have. to postpone. the discussion. The fifth defense, your ‘Boner, is.rather an anomalous crea- ture. It is labeled “Fifth Defense, separate and partial.” As. your Honor has{n mind, this is an action for an injunction, and how you can have a partial defense for such an action, I cannot ’ see. _Either we are entitled ‘to an injunction or we are not en-. titled, to an injunction. " There cannot be any partial defense. ¢ to an action forsan. injunction. And I think Mr. Clifton will readily agree that a partial defense has no merit or substance in an action for gn injunction, . It would eliminate quite a bit of proof and necessity for preparation for trial if that defense were omitted. Mr. Cuirton. Here is the point of that defense, your Honor. | The plaintiff alleged that ee to October 24, 1938; the. * 401225—41——2 3 5 ate .. ah ee ent defendants did not’ ‘pay their employes at the rate of time and a half for all hours w orked in excess of 44, 42, or 40, as the | case might be. The fact is that the defendgnts,have for many. years been parties. to a collective bargaining agreeroent with an affiliated labor union. which provides wages; hours, and ‘work- ing conditions: One of the conditions provided in these con- traéts, which are still in force and effect, is that. time and a half | shall be paid for overtime in excess of a ¢ertain number of hours, but those hours do not coineide with the limits set down in the - Fair Labor Standards Act.. The contract limits are slightly longer per week than those in the ‘Act. And it was in-an effort to show the true facts with respect to exactly what. over= » time was paid, that we labelled this rather anomalous aninial ‘a separate and partial defense. Moreover. it seen is to me, *althoueh Ihave not the law. handy, that’ in cases of this character the Court, as Mr. Rozen himself has said, is éntitled to know all the facts, and it,may be that some of the faéts which. are set forth,in this defense’ will appeal to. either the. Court which tries. the case, or. the appellate courts, as being material to the issues raised by, the complaint and the answer. Mr. Rozen. ‘But again I repeat, your Honor, the fact that’ - -an employer has paid, his employee time and a half, let ais say, afte® # 50-hour wéek has been worked, is no a either partially or wholly. ae : ~The Court. I quite agree with you on that. Mr. Rozen. That.may\ come out in the trial, perhaps, but: as a defense it just® ‘can’t be. You can’t have a partial de- fense in‘an injunction; and as a total defense; private parties cannot get together and make a private contract in contra- | ? vention of an Act of Congress. Mr. Cirrron, We do not make that contention, -Mr. Rezen. So.that- whole defense should be stricken -out and that would shorten the trial considerably, - The.Courr. Chey will offer in evidense, I assume, the agree- ment they havi a labor union. Mr. Ciirron t.isvight. And I think, Mr. ‘tenie will agree as to its. authenticity. And it won't take but a minute. The Covrr, The. trial court ean pass on that. That won't take long. if vou will agree that that 1s the ‘contract with +, labor union. h * Mr. Rozen. I won’i ‘press Mr. Clifton. on that point. Sig assiime we ‘will have access to the records of Spear & Com: pany, and: also Arsenal, so we can check: any data that can : be fyrniched. Mr. Cutrron. Certainly. te i ; The Court. Is that all? |: . o i AP ace Ld ? 6 me : Esq., Associate Solicitor for Defendants. 19 SQ Mr. Rozen, I have nothing ‘else. EP ; Mr. Cuirron.. I have nothing else, your Honk. _ Mr. Rozen. Thank you very inuch, your Honor. oiaee | [C: APTION | _ Before Hon. pan M. Wootsry, District Judge : m q° ry New York, March 24, 1941, 11:00 a. m. Appearances: Gerard D. Reilly, Esq., Solikitor: and Irving J. Levy, Esq’, Assistant Solicitor’ in, Charge of Litigation; Arthur E. Reyman, Esq., Acting Regional Attorney; and ‘Trving ‘Rozeti, Esq., Beni: Attorney, ‘of Counsel, for the. Plaintiff. MecLanahan, Merritt & Ingraham, Esqrs., Solici- tors for: Defendants; “Walter Gordon Merritt, Esq., and 43 7 Henry Clifton, Jr, Esq., of Counsel, Kenneth C. Newnian, . Mr. Reyman. If your Honor please, may I introduce my- self? I - Arthur Reyman for the plaintiff dnd Mr. Rozen is with - This mates is entitled Philip B. ‘Fleming, Adina iateasie ; of the W age and Hour Division, United’ States, Department . of Labdf, v. Arsenal Building Corporation and Spear & Com- pany, ine. “It involves a suli by the Administrator for the De- partment to enjoin and: restraiti’ certain alleged violations . of the Fair Labor Standards Act of 1938. The Court. I:would not know what that is. # never read an act until it is brought to me officially. Mr. ReyMan. It -is ‘the Wage and Hour Law, so-called, -your Honor, : , The Court, Oh, yes; ‘Thc heard of that. . eit Mr. ReyMan, The complaint alleges, shortly, that the ~ ‘Arsenal Building Corporation, owners of a jarge ‘building in midtown Manhattan, and their agents, have failed ‘and refused to pay ov ertime rates to certain: yf their employees as required by Section 7 of. the statute, " », The employees involved are usually known as maintenance employees; that is, elevator praetor porters, electricians, and so on; the men who work:at the’ building, keeping it in repair, arid doing certain presaribe chores around the build ing for the tenants and ‘for the | owners. Paes ye The Government maintains that the Act-applies to them, ° “and that they should be paid overtime rates for hours after the number of hours specified in Section: 7 of the statute. ° The employees involved are usually known as maintenance y ° . fs) pm F employees; that is, elevator operators, porters, electricians, ete “Bike b : 20 “and so on; the men who work at the building, keeping it if ’- repaif and ‘doing certain prescribed chores around the building for the tenants awd for the owners. The Government maintains that the Act’ applies to ther, ~ and that they should be paid overtime rates for hours after o ~ the number of hours specified in Section 7 of the statute. - So, briefly, the defendants denying this, the question before’ the Court is a question of coverage; that is, the spplicability of the Act tothe employees of .these defendants. ’ The Court. Have you any decisions at all for guidance? _ Mr. Reyman. There are District Court decisions and other decisions under another section of the Act. _‘FheCovrt. But not on this particular one? ° ’ Mr. Reyman. No. One case was tried in Philadelphia some few days ago, and that case remains undecidel, so this is,a- novel question. ‘ The Court. On the’ same question? ‘ Mr. ReyMan. Pravtically the same question. ) ' The Courf. Why is it the United States Attorney i is not ap- “pearing in this case instead of some representative of the local concern? Is there a particular provision for thee? ° Mr. ReyMan, Yes; in Section 4 (b) of the Act, if the Court ‘please, the Administrator may appoint attorneys, and attor- heys appointed by him ay ong for and represent the Adminis- wator in any litigation, but all such litigation- is subject to the direction end control of the: Attorney General. By official action of the Attorney General in a letter dated January 18, 1939, to the. thep counsel of our Divisign, all civil litigation was put within our Department; that is, the Department of Labor, ' subject to the general supervision of the-Attorney. General, and just recently the Attorney General in'a Department of Justice eircular has clarified that, so that we handle all civil litigation and the United States sa nitted s office is in cei of of all crim- inal matters, The Court. The reason I raised the question was that we had-a great deal of difficulty at one time with the Alien Prop- _erty Custodian ard their having private counsel, or eounsel of their own, instead of having the United States Attorney, and there were several decisions in those litigations in which they said’ it could not be done, and you would not understand, nor- inally speaking, unless there is a mandate of some kind but that’ - ° it would have to go through the law offices of the Government. Mr. Reyman. We understand that, your Honor. In. fact, " iif other criminal cases where I have appeared and other at- torneys have appeared before the grand jury, and so on, we are designated special attorneys. The matter has. been thor- . ~* * ‘ oe) PS Beek ona | oughly thrashed out and I would be glad to submit the authori- _ ties to you if there is any doubt in your Honor’s mind. The Court. I do not know. I just raised the question. If the statute covers the matter, the question, is whether You are yourself, so to speak. Mr. Reyman. Where is no doubt in our minds, - The Court. If Mr. Merritt has not any point to:make on that question, I don’t think there is any tieed ,raising. it under this statute providing” these, gentlemen are properly - appointed. * Mr. Merrirr. We are looking for. a decisicn on ‘the. merits. (Discussion off the record.) Mr. Merrirt. I would like to say a word, if I may, just to completely orient you on this case without trying to be contro- versial at all. The defendant in this case runs a building, that is, the Arsenal Building,- and the codefendant, Spear & Com- * pany, afe managing agents. Weg ' «The Cotrr. Who are’ the codefendants? _ Mr. Merrirr. The Arsenal Building is the building®: which these men are employed, and Spear & age, oes are their man- aging agents. They are notin any way ehgaged in iriterstate | commerce. They rent space. It being a loft building, they. rent space largely to manufacturers in the Garment Center,. who produce goods for interstate commerce. The two fundamental poitits which will arise@re, No. 1, that the statute is bimited to employers engaged in interstate as merce. " The Covrr. Is not the Arsenal Building an employer? Mr. Mexsirr.. Yes; but not engaged in interstate commyrce. ¢ It just rents space and runs the building. That is our first “—point. , Our sscond ‘point will be Wat the particular employees are: not themselves ‘erigaged in. interstate commerce, so thereon hangs the whole case. It isa question whether these porters, janitors, night watchmen, and elevator men who furnish the ‘service that goes with renting space fo manufacturers—— The Court. That is cognate. I find~the more,you sit in @ - Federal Court the more you get to thinking horizontally in- _ stead of perpendicular, and in Conetuand on Mr. Merritt. Exactly. I just want to get to you what our viewpoint is. : The Court. The idea of whether they are in ipterstate com- ' merce or not, and therefore whether the law applies to them? I do not know what the law says., Bat y6% have-to think also of the Employers’ Liability Act under Which railroad employees are sometimes in interstate ¢ commerce. and sometimes not in “ P Wh: 5 Ce te . | / ao. a interstate commerce.. I have had ‘a number of those cases.. I should think that would be-one of the types of differentiating deejsions you might consider. . s to“the applicability of this Ait, r really do not know, but I could well understand that these gentlemen here may want to make 4 record of exactly who these people are and’ everything of that kind. Perhaps you cannot stipulate all of those facts and they will have.to make a record‘on it. I~) should think that would be ‘a highly desirablething_ to do. Mr. Merritt. ‘1 am not raising opposition to that? The Covrr. It is very old-fashioned to talk about things like demurrers’ because everything has-been, turned more, or less upside down; but I should think that would be your Dheition, | practically a demurrer to the evidence. na AT tag . Mr. Meraurr. I think it very likely will be. | -- ' The Covrrt. In other words, like a motion to dismiss their | case at the end of it on which you would argue ‘all these con- ‘ stitutiona¥points and all these applicability points. ‘I do not . ‘know whether there is any constitutional point. * Mr. Menrnitt: The only constitutional point would be that if you interpret the Act as embracing all of these different classes of people, we’ will, of course, reserve the point that thgt would make the Act unconstitutional by giving it suchr an extendgd application. ~ The Court. That is another question. Has not the consti-’ tutionality of this Act been passed on by the Supreme Court? " Mr. Merriti. It has, and we do not raise any question as to constitutionality of the Act as a whole but, of course, we want, to be free to argue that if you should say it applied,to « a bootblack | The Court. Yes; to-a casual on the flor? - ,. Mr. Mreerrrr Yes; that would be giving an application which would be unconstitutional and therefore you wouid ~ not give it such an interpretation. That would be one of gur arguments, I’ mean. The Court. You give me all theycases that deal. with this . éase in particular. . * —— Mr: Reyxian. We will. . ~The Cevat. And also differentiating cases on the question _of the Employers’ Liability Act. | i Mr. Reyman. We will cover them for you, @pur Honor. 2. The Covrr. And then you put anything in that you*want to on your side: about it, Mr: Merritt; and you do not have to exchange your memoranda at all. (Discussiow off the record as.to submission of trial briefs and - memeranda of law.) ’ a @, o a Te ‘ 23 o The Court. Then suppose we adjourn this case until next - Monday and at that time we will go on and take such evi-- dence as you want to put in. -I will give you all the time you-need to ventilate every aspect of. the case, and I hope “i the end of that time I will be able to deal with it off the ench - There is only oné thing, and I will greatly aipredste it if you will get your trial briefs to me by Friday the 28th. Mr..ReyMan. We wil) do that. If your Honor please, as you mayi\ know, ‘the Départment has issued certain interpretative bulletins intended to guide - the keneral public with respect -to our views. “We have no . right to interpret. the law, so’ we simply state our views, and if your Honor cares to have our views.on cov eineste I can’ submit them: to you. The Cor oe. I will hear that rails (Adjour d to March 31, 1941, at 11: 00 a.m.) ° New York, March 31, 1941, 11:00 a. m. Trial resumed. : Present: Mr, Reyman, Mr. Rozen,'and Miss Helen E. Cottrell, of Counsel for Plaintiff. Mr. Merritt and Mr. Clif- ton, Jr., of Counsel for Defendants. Mr. Kenneth C. New- man. The Court. ‘i all-of the gentlemen and the lady here as counsel, members of the bar of this Court? » Mr. ReyMawn. For’our side they are. Miss Cottrell is ap- pearing here this morning for the’first’ time. The Court. Is that true of counsel for the defendants? Mr. Merritt. Yés,.that is, your Honor. The Court. I have had the penefit of your trial briefs and have been over them with the greatest care. I have : a few things to ask you about. I do not think we need to have a formal opening on account of the trial briefs. The question is rather clear, but I do want to take ~ one or two things with you. * In the first place, I will tell you that that. First Circuit Court ef Appeals case is reported now, Bowie v. Gonzales. It is in 117 F.(2d) 11. __ Thave one_thing that 1 want, to mention which I am afraid there will be a little bit of a cramp about, but I object to, in the briefs of counsel, ubj supra or ubi, and in a number of cases especially in the Gpvernment’s brief that was used. jt may be just a notion of rine but I am rather fussy about it and I like to mere things. referred to spent I am - Mr. Merritt. Just a minute. I think we are leading again. The Court. Yes. - That does net make* any difference whether he does or n@t. What. else do’ you do? What sort of machines have they got? * The Witness. Cutting machines. The Court. And electric sewing machines? © - The WITNESS. Sewing machines, pressing irons. By the Court: ; Q. And if those electric fixtures ave a little” something “a done to them, I suppose as handyman in charge of the huild- , infg, so to speak, you are called on, and some of your assistants,” too, is that it?—A. I hawe one assistant, but he #—— Q. What is his name?—A. He is mostly running errands, Arthur Lipsman, Q. L-i-p-s-m-a-n?—A. I believe that is the way he spellsit,_ By Mr. Rozen: Q. Is there an. incinerator in ‘this building, Mr. Silvera?— A. There is an incinerator in the building in the basement which has been installed possibly within the past year. a ikset i os fog . ; Q.. Do you have any duties in connection with that incin- erator?—A. Well, there is nothing that I do there, on that incinerator, no. I have not had any work there. I did NAVs a to—— : Ace : The Court. What is it’ for? What ‘is an incinerator for there? To burn up the trash— * _ The Wrirness. Rublsish in the building; dispose of rubbish. I did have to repair a handrail there that was ngt solid, and | cut a hole in the brick wall and bolt it to the brick wall and make it rigid, .25~i . Q. In addition. to the four freight acoakinn. Mr. Silvera, what other facilities are there for the distribution or move- ment of packages in the building?—A. They have a package chute which is used exclusively for the Railway Express Com- pany, which was placed on the premises for their exclusive we Q. Will you describe that package chute; please?—A. Well, the package’ chute has a door on each, floor, with an opening _ approximately 3 by 3, or I would say no more than that, : - I do not think, and this chute has a spiral affair of metal and “you justdrop the packages in and they go down to what _ is known as the mezzanine, part of which the Railway Ex- press has fof their extlusive use, and then they have a drive- way in connection with this mezzanine where they back their truck in and the packages come down the chute and then °- they have a roller affair and they put these packages on and they go down this roller affair-to a chute to the trucks, and . they are loaded in the trucks there. — - ‘ Q. Are the trucks parked-on the street 2A. No; they back right into what is known as the ee Express driveway on 35th Street. ~ . Q. Is that a‘sort of structure within ‘the building itstthh?— A: Oh, yes; it is part of the building. Q. Won't you deSesibe it more carefully for the Court?— A. It is a driveway with a large straight drop door. po That is flush with the building wall?—A. That is it. - . “~ Q. And the trucks back insigle?—A. Back right inside toa loading platform. By the Court: d | : _Q. They raise this door?—A. On a chain. © * Q Yes. Wg have. one down in the building: here for'the. judges. They raise this curtain or whatever you call it—— : & A. Yes; a steel eurtain. re Q. And then the trucks can, back in or driv evin or what not, ' pick up’their loads?—A. That is it. oO . 39 Q. So you. have this chute that goes down spirally, . understand it, is that right?—A. That is right. Q' And of coursé that will be the only safe way to keep om perhaps setting some of the packages:on fire, as they did yp in the Medical Cénter when they first began because the spiral _lets these packages down gradually—-A. Yes, All the doors are : _ maintained with lock and key by the Railway Express Com- pany. If they want to use the chute on the — floor they . open it and then lock it as they finish. =. * By Mr. Rozen: Q. You mean the American Express Company only has © keys?—A. That is it. It is entirely private. ' Q. Do you do any work at all in coiinection with that chute?—A. I have occasionally tried to help repair a-lock or something of that kind, but otherwi ise I have not done “a on it. : By the Court: Q. Are you around there when the American Railway Ex- press is getting packages?—A. I am around the building at all, times. I have to let.them know at all times just where I am, in® case of emergencies, and so forth. Q. Do you ®now just exactly what happens, so far as the_ Railway Express Company is concerned? Does somebody from thg-Railway Express Company go up to the floor whence . the packages are going to be sent down by the spiralt—A. That is right. a Q. And they unlock the doors themselves, which dita look like dumbwaiter doors or something like that? ; Mr. Rozen. Exactly what ~_. look like, your Honor; dumbwaiter doors, A. That is it. joe ene Q. I am just guessin at it. And ‘dheni:they put their pack- ages on/the inclined. spiral and: the packages work their way down eventually to the place where the Railway Express truck . is waiting to’ takethem on board, is that it?—A. They come down and out of the bottom of the chute on the mezzanine onto a sortgf platform, and thére is a man there that picks them up andghecks them over and puts them on a roller affair and they ,. go onto the truck. Q. Is that all done by Railway Express employees?—A. Railway Express employees. By Mr. Rozen: Q. Do you know.at what point.the Railway Siiseeen man _» picks up the packages that he puts in the chute?—A. Hepitks - them up from the premises of the tenants. ° 7. 4 \ ea) | 40 -Q. Who supplies light to the. premises Ree by the Rail way Express Company?—A. The building. Q. And heat?—A, The building. ; Q. In addition to the facilities furnished the Railway Ex. press Company, aré there any other facilities or space nished the Railway Express?—A. Only what I. have fen. tioned, ‘I believe : The Court. W' hat j is the’ proper word to describe that place down below where the Railway Express backs its truck in? The Witness. A driveway, I would call it, a driveway and loading platforrna. Q. Do they. also have office space in the building, the Rail- . way, Express?—A. The office space and everything are incor- . porated on the mezzanine where the packages come out. They (ath. a couple of desks there to make their records, and so ort Q. Have you ever seen the Railway Express C ‘ompany offi- , cials located in any other part of the building? I do not mean _ when they make their rounds, but I mean permanently hav- ving been there for part of a day?—A. No, Ido not think so, except that they go into a big tenant’ s place and stay there quite a while, like Max Wiesen’s. They are there a couple of hours, if that is what you méan, but that is the only in- stance where they are in any one location any great length of: time. . Q. Will you describe tht freight elevator ent nee on the street level, please?—A. The freight elevator en entralice is on 35th Street, the main entrance. Q. About how wide is it?—A. The main opening is, | would judge, about 12 feet or something like that. Q. is ‘there a steel curtain there, too?—A. There are two- immense doors that swing outwardly, immense heavy doors. Q. And-how ‘deep is thit entrance there, about?—A. Oh, . 40 or 50 feet; dam only. guessing at its length, but it is quite - a big's : gayle hallway in there. You go straight in and then . aroun to the left where the elevators face, What I mean by straight in is it would be like walking north from 35th Street into the building. By The Covar: Q. What do the freight elevators move? These siti ion that are sent down to the spiral?—A. What do they move? Q. What do the freight elevators carry up and down and how'do they get that; say a person who is._bringing something to the building, for instance?—A. They come in this main freight entranfe and walk straight in and then turn to the 41 | ae and the’ einai entrances are. slits in the main freight Q. As I understand it, and perhaps I am n quite wrong on it, _ the outgoing shipments are taken by the American Express, _ are they? Is that right, as-a rule?—A. Not all of them. They have numerous express companies that come in there and - pick up-packages. _ Q. But some express’company or other takes them off “the: _ spiral? In other words, does somebody also come in and take them off the freight elevators?—A. Oh; yes.. Q. And going out, too?—A. Only what the Railw ay Express Pn! Company handles comes off the spiral. Q. Everything else ‘comes off the freight elevators? —A. Freight elevators. Q. And everything that is going up, of course, I supe kes to go in the freight elevators?—A. That i is it, : By Mr. Rozen: Q. Do any other companies besitles the American Railway ‘Express Compény use the spiral chutes?—A. Nohody else. It. is exclusive. The Covrr. They have the keys toit. He justtold us that. a af » o ‘ ce Q. Were you employed by the Arsenal Building during the © ° period of the maintenance employees’ strike?—A. I was there during the period of one ofthe strikes, and I started thege J just prior to the first strike that was called. Q. -When was this, Mr. Silvera?—A. In the latter part of. 1934 I think it was. The Court. The last.strike? The Witness: That was the first one. ; Q. And was there another strike, Mr. Silvera?—A. There was another one. I do not know the date of it, but a couple - years ago it must have been. The Court. The second one was worse than ‘the first, if T» recollect right? 7 The Witness. Yes. Q.- Were the employees in the Arsenal: Building out on bith” of the strikes you refer t%?—A. Yes; they were. Q. Were the elevators running during that strike?—A, Not. to any extent that I know of unless somebody ran them that I did not know of. The operators were all out. - Q. Was there any. cheat in the building during the ine | A. Not as I have been given to understand. The boilers were — shut down. Q. Were the tenants produeing at that time?—A. What they could manage to do. Some of them would walk up and see » 42 _ whateyer they sala do. They did not do much though, I do not think. ' _Q. Were there other employees hired to operate the elevators during the strikes?7—A. No; there were no operators hired - They had watchmen, though, is all I know of. ! Q. Were the. elevators running or were they not? Mr. Merritt. He:said they were not, to any extent. ’ The Court. He said he did not know..- The Witness. They were not running to my knowledge. Mr. Rozen. Your Hofior said he testified he did not know: “and Mr. Merritt said he testified they were not running. Mr. Merritt. They were not: running to ay extent, but he — did not know. The Court. That is what I thought he said. If they were. ; running it was not within his knowledge. . . Q. What would you say was the effect of the strike upon ‘the : tenants in.the building? —.. ; ; Mr. Merritt. Oh, I object to that. The Court. Objection sustained. Q. Were the tenants open for business, Mr 9 pg Oh, ‘ yes; they all came and tried to get by as ey could. . Thé Court. Anybedy who lives in an apartment house in New York City knows exactly what it is like. I live i in an apart- ment house myself. ** Q. Mr. Silvera, did you make a record of your daily duties : in, and about the building?—A. I wasrequired to make a daily report to the superintendent. He said his office wahted that and I did that. Mr. Rozen. Do you have such a book: Mr, Merritt? Mr. Merrit. It is the first I have heard of it. The Covet. That i is a sort of a log? Mr. Rozen. That is exactly what they call it, yee Honor. That is the exact term. , ‘The Court. What good would that do us?, : Mr. Rozen, Just so your Honor. could see’ the exact: t- details of his duties and so I would not have to, go jnto-it any more than I-have.. I would ‘like to offer it.in evidence as showing exactly what this man-did. — 7 og The Court. I think he has told us.all that. I live in an apartment house and I know handymen and I have known them all my life and I “know the sort of things they do and I do not. nged to be told about that just because it happens to be a» loft building. There gre certain things that everybody knows. Mr. Rozen. I know, but we are trying to make a yecdtd of those things. o° reserve the offer at this time. - 43 Peeler! SS. . . Q. Is there any other ‘ieneies in the building ‘that you . “have not described to us, Mr. Silvera, that. acts as a.watch- man?—A. They have an electric, what i is known as an ‘elec- trice—_— > F The Court. Electric eye? . A: (Continuing.) Electric’ eyg and 6n the two stairways ii in the building. I maintain that. : Mr. Rozen. That is all T have, ‘I’ think, your Honor. (Short recess.) Cross-examination, by Mr. diate Q. Isn’t it true as a general proposition that the employ ees | of the Arsenal Building have nothing to do with the mainte- nance of the machinery of its manufacturing tenants?—A. Well, in my position, my work is to follow out the orders of the superintendent and that has involved me in doing some work in the tenant’s premises, considerable work at times. Q. annot you say as,a general proposition it is not part. a Ea of your-duties to maintain the machinery in the tenants’s prem- -ises?—A. I cannot. - Q. Are you tenet’ to testify it is one of your regular duties to take care of the machinery of. the tenants in their respective - manufacturing premises?—A. Iam.. My duty is to follow out the orders and instructions of the superintendent. ‘ Q. And it is part of your regular duties, is it, as you are in- structed, to enter these tenants’ premises and to look to the weep of their machinery?—A. As I amvinstructed, that ba right Q..Aid you are constantly instructed that way, are you? The Court. You must get asked in. You don’t enter the premises without being sent for, do you? : ThesWitngss. The superintendent gives me orders to do such and such a thing and I go and do it. - The Court. I. don’t blame you for doing ‘what the super- _ intendent says, but what I want. to get at is the tenants send through the superintendent for you, is that the idea? ° The Wirness. In many cases and not in many cases. ’Q. And you never enter the teriant’s premises to do anvthing except on the direction of the superintendent?—A. No. I did enter the premises on many occesions when I was not given orders, if they came to ask me—I have been given orders ver- baliy and written also, in many ‘cases, and the operators and so forth tell me, well, there is 4 leak in such and such a place, ‘and I haye to goin and take care of it: Q: Who do fou mean by the ienahorstck The elevator operators. The superintendent will go up and say, “Tell 44 \ \ George to go in and see what is wrong in ‘such and stich a place,” _ orders ‘similar to that.. Q. That is an order from the, cuperintendent, isn’t it?— i A. That is right. Q. I dm asking, you if you have ever gone in to hepaié: ma- chinery i in the tenant’s premises used for their own manufac- turing premises, except when you were’ requested 80 \to do b the superintendent?—A. Yes, I have. -:Don’t you know that is a violation of the rules and Yeg-- ulations of ‘the building?—A. No; I-do not think it'is. ,. Q. You do not know that?—A. No; I do not’ think itis. « v. - Q, Isn’t-it a-fact that’ there is a notice published » in the». locker room forbidding you to do that?—A, ‘I don’t think there is. ay ‘ - Q. You have never seen such a notice?—A. What locker room are you referring to? Q. In this ‘building?—A. My locker room. is in ‘private : quarters. Q. In any, locker room of this building are you prepared to say there is no notice of that kinf?—A. I have not b any- thing i in my locker room to that effect. Q. Have you ever seen anything in any locker. room in this building. to that effect?—A. I believe some time ago {there was—now you recall it to my mind—there was séme kind of notice of that type put up. Q. And it is still there?—A. Probably is; I do-not know.” Q. And it has been: there a great Many years, hasn’t. it?— -A. A great many years? ' Q¢¥es.—A: Not a great many: Q. It has been: there ever since you have been. there, hagn't it?—A. No. \ Q. W ey Seas it put in?—A. Within the last couple years. Q. Then rou do recall now that it has been there about two years?—A. Probably. Q. So when you enter those} premises aia you work with- ° aut directions from the superintendent, you are violating that notice and regulation, are you not?—A. Absolutely; yes Q. Why did it take you so long té admit that. fact?—A. Because I did ‘not recall. at the. time you first mentioned hav- ing seen that notice put up there. 'Q. And you did not recall that you were ‘constantly violat- ing the rules of your‘employer in this matter?—A. If I had not taken care of those difficulties—I had to rely on my own knowledge of the requirements of taking care of those diffi- culties, because I was in charge of that when a S S oO intendent was’ off on shits vacation. That notes: edid not apply to me in its entirety. Q.:Give' me an illustration of the type of difficulty you -inean?—A. Well, if the tenant happened to have the lights out and so forth; fuses blown.” Q. Don't you know my question related to your sisibiaibine their machinery ? That is the question I’ was asking you about. —A. Well, their machinery? Maintaining their, machin- ery is maintaining the source of current supply, and.se forth, also. I think. . Iam rot talking about: ibaieninis The Court. He is not talking about that. You answer his ° quest ions. Q. You*have testified at. as regular part. of your duties st you entered the tenants’ premises.from time to time to repair and maintain their ‘machinery uséd‘ for manufacturing pur- . poses,didn’t you? Didn’t you so testify?—A. Yes; as regards : fight sockets, fuses, and so forth, and: seg things of Sat kind; yes. » taining thefr machinery?—A. As a duty, you méan? Q. Eithey as a duty or not as a duty. By the Court: Q:.° Under any eircumstances—A. On occasions I did; yes. _ Q. And what sort of repairs do you mean when you are talk- ¢ ing about that?,’ Let us get down to actualities. I cannot think . of these things ji in theories. Let. us get at the facts.—A. I re- pair things for the tenants. _.Q. Sewing machines?—A, Well—— _ @.- Pressing machines?—A. Well, those things were not dorie : in the actual line of my duty. At times I did a thing like that ‘as a personal favor or ‘something of that kind. Q. Do they pay you something?—A. Well, they did if they felt inclined, or if I had experises involved they would allow . ne for whatever expenses I had. Q. Well; little extra-curriclar work, we will calL.it, that was .° done by you for which you probably always hoped to and often received, a gratuity, is {ifat it?—A. That is right to a great extent. By Mr. Merrirr: Q: So that on the side and contrary, to your rules, you occa- sionally did this sort of, thing for the purpose of nan a little ., extra froney?—A. sionally? Ok Q-“And only occasionally ?- That i is right. ahs | x \ . 7 sd \ Q. Did y fe éver go in for the purpose of repairirig or main- _ es ar 3 oo ht » 46 'Q. You understand the difference, do you not, between en- tering a tenant’s premises to take care of the building. and _put- in sockets, for instance, for lighting, and entering the tenant’s premises for the purpose of having to do with their, own special business? You understand that difference, don’t you2—A.. Yes; Ido. I think I do. Q. And you quite frequently, as I take it, enter the premises ° on tenants’ request, or by direction of the superintendent, to _ put = a light in a socket ?—A.- Oh, yes; and do othet extensive wor Q. Other extensive work?—A. That is right. Q.. Tell us what the other.extensive work is?—A: Well, ee ‘have been giv en orders to install new feeders for elettric work : in tenants’ premises. © | - The Cotrt. That is on orders of the siiperintendent? The Witness. That is right. Ete The Court. For ~which you were paid by the. building. You were not paid by the tenant at all. It,was something done in the line. of your, work under the superintendent. ' The Wrrness. That i isright. .The Court. Are you assigned as an assistant t Mr bitvera? , He said there was only one man was his assistant was you? — Thé Witness. That isfight.- °* ° The Court. You regard yourself as assistant to Mr. Silvera? The Wirness. That is right. . Q. Forgetting for the moment your duties as assistant to Mr. Silvera, will you describe in a little *more detail what ~ you do during an active routine day2%—A. Well, when Mr. Silvera has odd jobs to do,: like fixing , windaws, putting chains in, I help him, and look after the elevatots upstairs, oil, and do other work there. Q. Do you ever operate an elevator? >A. That is right. Q. When do. you do that?—A. I do that between 5 and 6. Q. Every day?—A. Every day. ° Q. What kind of-an elevator?—A. Freight elevator. Q. Does it have any particular number?—A. Well, that is No. 2 car, I think it is. I don’t know. _. Q. And you transport merchandise?—A. Yes, sir. Q. From the ground floor to the floors of, the tenants?—-A. That is right. ~ The Court. I would not use the word “transport.” ‘Mr. Rozen. All right, operate the elevator, your Honor, The Court. Operate the’clevator, and on the elevator you take up and bring down merchandise? The Witness. Merchandise." Q. How do you. resptnd to the Senate’ request to take merchandise onto your car?—A. Well, I go down to the floor, and the tenants come in with racks and so forth, and I let them on the car. By. the Court: Q. Those little wheeled things?—A. That is right. They have got what they call racks, high ees: they put the dresses ‘on. Q. ¥es; anid they have wheels below? —A. That is right. Q.. They : are pushed in on the elevator?—A. Yes. ' .Q. How big are these freight elevators?—A. They are —_ big. They take five big racks on them. | Q. Are they 5 feet suare or 10 ‘feet square, or what?— A. I would not know. The Court. It is pretty hard to guess those things exactly. Mr. Rozen. Indicate 1 in the courtroom here. , — Vd 4 i tere ? 55 The Witness. From here to the end of this table [indicat- ing], and it. is just as wae, to this. tabl heres It is, quite a large elevator. _ _-Q. Who deals with ihe racks of dresses, or whatever they are?—A. Well, you see the truckmen bring in them racks and | they ‘go to th ‘various floors. —— clean up their-floors: durint the term of the Teneo; do-yout——- pA A. Well, sometimesI do. . : .Q. Ugder what conditiois do you do that?—A: Well, tenants ‘that have a lot of waste, like records and stuff like that that they want to burn; we got to come in there antl put it on. trucks ° and bring it dowestairs and burnit youknow. & ° y _. Q. Where do you burn that?—A. Burned down in the i incin- : ‘erator. : (Q. That is an unusdal ty of situation, is it not?—A Well, _ it is dgne every once in a wile. . IgE t. Q. Then it might happen once a year as to ech tenant?— > A Oh; sometimes it is twice’'a month and sometimes once a. - month, aecording to how they w ant their records burned. They.. want toget.rid of them. ,, / Q. And those records are not povered by. the contract of this outside company that. comes in and removes the. refuse?— va Well, you see:they don’t want that sontractor to get: hold — Of their records and-they burn it up. se Q. So this applies to records which the tenant likes to Geol are confidential?—A. That is right. ©. -* _ “The Courr. I should say that the records are papers burned ° up once. in a way, whatever that. means. I think” that | is all © it. means. .Q. The ordinary type of papers are taken i away by these out- side concerns or contractors in the same way that. the clippings from. garments are, is that not so?—A. No, ‘sin Sometimes they. leave all the rubbish ir the hall where | we got to- take it down and dispose of it. ‘a. 3 Q. So that is where the rubbish is; in the outer hall?—A, ‘ «Tn the outer hail; yes. : -Q. I don't want to pursue this’ too far, but‘as a: general — ’ proposition, day in and day out, during the term of the lease, the tenant cleans his own, floprs, does he not?—A.: Well, yes; his own lofts; He does thar. Q. Now as to toilets, isn't it a fact’ that where the toilets are insi the premises of the tenant, where, for instance, a . . , tenanty or an entire fioor, then the ‘tenant looks after ve ; Per? | Seaes i 2% - the cleaning of his own toiletsg—A. Well, they do, ‘but if!” there is an overflow of water or things like that, well, we got * to go in and do thercleaning. We — tS clean up that water ‘off the floor. Q. That is in case of any. emgrgeney which may mean Teak- age in the building?—A. That is right. - Q. You go in and take care of it?—A. That is right. > Q. But as to the daily keeping up of the toilets, that is left to the tenants, is it not?—A. Well, the private tenants; yes. ___,. The Covrr.. You-mean_that-for_tenants-who have private g toilets, they take care of thenr ordinarily, absent from emer- _ gency, and then the other, where the public toilets are con- cerned, the building takes care of that, is that a... The Witngss. Yes, sir; that ik it Mr. Merarrr. And as I csdsestandl Ht, your Honor,. there are private toilets merely where the space includes the gen- erat“location where the toilets are lgcated and where the space does not cover that, they are plblic toilets. _ thing like that and you would have what. miglit be called a plurality of toilets and you would shave to ane care of sae yourself. “4 Mr. Mrerirr, That is all. ” CHARLES - ANDERSON, called as a witness on behalf of the . Plaintiff, being first duly sworn; testified-as follows: ~ you examine.them may bt excused? ; Mr. ReyMAN. Yes. . _ Direct examination by Mr. — “Q. Where ” you live, Mr. patersiesaty 5120 19th Ave- nue, Brook Q. Where. are: you employed?—A. 463° Seventli Avenue. “Q. That is the Arsenal Building?—A. Right, Q. How long have you been employed there?—A. Risteon years. 4 Q: And what do you Me there now?—A. I am a freight _ starter. Q. Have you always been. a freight starter?—~A. Yes, sir, Q. Explain what you mean by freight starter, will you, freight cars; load them and see’ that they get loaded quick. Q. You are the-man who dispatches them?—A. In the freight department. ° The Court. In the en: elev ators? 4% the: X. ; « The Covurr. Yes; you take two floors or five floors or some-. ° Mr.-Mernirr. I understand that each of these witnesses | as please? —A..To keep the cars running up and down, .the - Somes a > Skee & fa eae in ine Geng Central Station to carry your luggage: on, ‘straight up, and then if cars are delayed upstairs I have-a ' buzzer downstairs to bring them down; sort of regulate the The Seen That is hats eee Q. How long: have you been a freight e A. “About four years. Q.. Where are you located in: the building, Mr. ‘Anderson?— "A. On the 35th Street side. Q. And is that onthe ground floor?—A. Yes. . Q. That is the street level?—A: Yes. Q. Is there a public doorway anywhere near where you are and where the elevators are located?—A. No. There is a e—trueks-_come-ia— Q. You are stationed then at the bottom. of the elevator | shafts, the freight elevator shafts?—A. Yes, sir. Q. Will you’ explain just generally what your duties dre, what you do when you are there?—A. Well, I try to keep | the traffic going up and down as quick-as possible and see that the freight Béts off and on - elevators, and pot too many. people get on there. Q. How many freight ‘elevators are there?—A. Four. Q What is the nature of the traffic oiy those eleyators? What. is earried on theni?—A. In what ‘eke do you mean? Q. What is carried up and down?—A. Well, trucks and racks and different things like that; packages : and stuff. Q. Is it part of “your duties to assist in the loading and. unloading of those ‘ dovatatal ?—A. No; not necessarily. Mr. Merritt. I object-to that question. : . The Court. Yes; it is a very leading question. Objection sustained. What do: you.do there? Just supposing I was. standing there and watchiig you start those elevators up and . gown, whatwould I see ‘you‘do? The Witness. Well, you would see me, as soonwas one car gets loaded I give him the buzz and tell him to go right traffic like, . The Court. You niean. you press a button—— - The Wirness. ¥es; and that is contacted on the car. Q. You mentioned trucks going on the elevators. Who p the trucks of them?-—A.. The truckmen themacives. The Court. By trucks you mean—— The Witness. Dress trucks and like that. ° ‘The Court. When you say ratks, you mean the - frocks are hung on. 3 . The Wirness. Yes. ‘ ° Fhe Court. And when you say trucks, you mean th sort | of things that-are similar to those little hand trucks, they y Ys 7c '. you?. Those where-they have a whole lst of luggage piled up, ‘ a truck with two wheels and a handle, and then you lift it and it slopes but if you pile the ‘luggage 6 on so: ‘it does. not sit on, you go on down, is that right? ‘Mr. Reyan. I think so. Ae The Witness. Your Honor, they hee quite a few differ- ent kinds of trucks and they have what you eall box trucks and then what’ you said with two wheels and then they have the racks and flat. trucks where they put packages on. The —- t-dresses-on*the same as they do the racks. : They. hang them on. The Cougrt. I see.- In fact I have actually’ seen them going ° . through the streets. That is not attended: to by you. You do not do any loading? The Wirvess. No; no; the truckmen themselves do that. They Have helpers, you know. - The Courr. T he truckmen are. Abit that come in from outside. The WitTnesg. Outside, ana hey come down from upstpirs,, too. hat Fae 4° By } tepstaat? Q. What. is your main duty ddaawe. Mr. Anderson?—A. My main duty is to keep. the hall clear and see that merchandise and stuff gets out as quick as possible: _ Q. What are the honrs of the day you are there generally%— sy. A. I am there from ten after nine yntil six at night, not in ‘the hall, though. -I am on the car for about two hours during the ‘day. ; Q. And what hist are they, generally ?—A. From nie in - the morning’ until about half past ten.’ - Q. All right. From:‘nine in the morning until said half. past ten when yqu are Onthe cars. do you carry trucks with dresses and so on that you have mentioned?—A. I do. Q. Do you carry passengers on the elevators at any time : during that time?—A. I do. The Court. When do you run the elevators? Mr. Reyman.. Your Honor, he testified that he does that, ‘ two times during the day, from: nine until ten-thirty,.and I was asking who he carried in the way of. _passengers at that time. . The Witness. “And also from about five to six in the | evening. — Q. Directing your attention. to the hours froni nine to ten- thirty, you say you carry " passengers?—A. Passengers and trucks. “4 2 el assengers you carry. where do you take fel], Luse ..y opinion not to put too ers are going on the cars. I use it Q. Now as tot them, generally?—A. many. trucks while passe just for passengers. Who are these passengers? Are they the employees of the building?—A. Yes; they are employed by Max Wiesen & Sons. . Q. Doyou take them to all floors or w hat floors generally?— A. 19th—17th. es 1h + QQ. Do you carry any passengers down i when you are on the elevator?—A. Well, ret ‘they. have changed their hourg. They do not get through until six o’clock +80 I have no necessity of taking them down. When I go home —they are just coming down. ‘~ Q. What are the busiest hours of the day, Mr. Anderson, with respect to the goods that are coming in: and going out?—A. Well, I should say fronfabout three o’clock until ¢ about half past four, Q. In the afternoon —A. Yes. Q. Most of them: are going in or coming suttoA. Coming IP) and going out both. Q. So you have a flow of traffic ss and down at all stig A. Yes. Q. And you control your elev ators from your station’ *down on the ground floor there?—A. Yes. - . -Q. During the other hours of the day swhen- 4it is not so: busy, | ‘is there a steady flow’or do the elevator operators have interims of rest?—A. Well, it is some periods that is not as busy as ‘others. They get a little breathing. spell like, but when they . come they come in droves,.in bjg bunches. Q. This door that: you have described that, is on the side. street, on 34th Street, is that door on hinges? Is it an open door?—aA. Yes; it is on hinges. Q. Are the doors g generally closed?—A. Well, divtek: a cold spell we have them closed for a while, but they ‘are usually open. Q. gdnd the traffic in “and out of the’ building - through those doors?—A. Yes. . The Covrr. Now wait a minute. Mr. Reyman. I am referring to the.dress traffic, and so on. The Covrt. Well, then, that sort of answers my question. I got the impression there was a passenger entrance somewhere. Mr. Reyman. There is,and that will be brought out. ° ‘Q. In addition td that side entrance there, that large door ” you have described, is there any other method of ¢ going in and | out on ie Street 2A. No. - . oe , ning during that time?—A.-I haven’t the least idea. Q.- Will: you ‘explain generally known as a return of merchandise. “A return; will ~ you explain what it is?—A. Well, that is the likes of dresses being shipped different places and they refused them and they are sent back then. *- - the building there?—A. To the separate tenants; Q. Do you know. whether/or*not the elevators transport They do. - The different trurkmen bring it-in, ayd, — _ bring it in. Q. Are elevators running at all times to carry ‘the returns when they come back?—A. They are. The Court. Do you mean n at all times? You dowot mean | night and day. The WITNEss. No; it ig up to about 10 in the ev ening. 2 .. Q. Have there ‘been times when returns: have arrived there at the building when the elevator Is not running?—A, Not’ - that I know of. Q. Do the returns go up on-any particular elev ‘ator3}—A. It is not necessary. Hither car can take them up; aaxties ided the cdr is not loaded. Q. Any one af, them?—A. ‘Yes. ° ae Q. How many starters are there beside yourself, for the freight elevators?—A. Daly myself ‘ : *- Mr. .Reyman. That js all. Mr, Merrirr. No examination. | Mr. ReyMan. I have one more question, if It may. i * Q. I wanted te ask you whether or not you have ever seen any hibbhich in the building transported. up- and down on “the freight elevators.—A. I usually see the porters taking it. down in the morning, what is left over like accumulations on the floor. . ‘-* Q. When you say the porters, who employs them?—A. Four or five porters. -' . ~The Court. Do you mean your confreres who were em- ployees with you of the building? x The Wrirness. Yes; your Honor. sat hee > ose returns from the lowér flopr up to the tenants®—A.. * | The Court. How many bring the rubbish down; ‘and. do they bring it in their arms,.in boxes, or cfates? The Wirnéss. No; they have sort of a box with wheels’ on ‘it, and they sweep the floor of all decumulatiotis and bring it downstairs. ¢ Mr. Reyman. That'is all. The Court. I thought ¥ou had no questions Mr. “Nheerits. “Mr. Merritt. I want to ask some ques ion, in view of the last question. : e Cross-examination by Mr. ‘Merritt: 2 -~.°* Q.-Do you know whether this rubbish that you have seen ~N. brought down on the elevators was picked. up by_therportérs ' in the public hall, or whether it was picked up on the premises of the tenants?—A. I: presume it=was picked up in ‘the public hall. ‘ ‘ Mr. Merrirt. That. is all. Naot ; By Mr. ReyMAN: “3 ae Ses Q. However, you are quite sure——. eh Mr. Merritt. Are you bound to have the last word? Mr. Reyman. Well, strike it out. ‘That 3 is all. t.:* Harry B. Simon, called as a witness on behalf ‘a the plain- tiff, being first duly sworn, testified as follows: Dirett examination by Mr. ReyMan: --Q. Where do*you live, Mr. Simon?—A. 1613 Amsterdam Avenue. ay Sone We Q. Manhattan?—A. Yes, sir. . -Q. Wheré are’ you employed?— A. Risinal Builting, 463 . Seventh Avenue. . Q. How long have you been employed thefe?—A. 16°years, ~ Q. What do you do now tA. Runsthe elevator, a (freight, t . elevator. - Q. How long have 3 you operated a freight elev ato? 2—\. 16 years. . Q.. That is the Galy job you ever had there? A. a hed there. . Will you state to the C ourt generally what 3 your di ies asa freight elevator man are?—A. Well, taking. up passengers, . taking down freight and taking up freight, at certain hours.’ - o: Q. What are the hours now? What are your hours? —A, °° Well, one week it is 7'to 4,- the ne@t"week it is 8 to half-past d—8 to 5, rather; the next week. the following week, it is 9: 30° toa quarter of seven, and the week after typ it is 1: 30 to 10: 20.: b ‘ urs a week. Q. What is the ‘kind of merchandise ‘ you ihe up and ~down?—A, Well, we take up piece goods, dresses, curing ma- terial, up and down all day long. Q. Do you yourself handle this migterial A: No, sir; all truckmen. We never handle anything; just run them up ‘and he How many hours a week do you work?—A, ‘8 hours; 47: Oo Q. Mave you wedtloot shemale at the building for. these many: _ + years?—A. Steady: I‘don't think I missed three days in 16 -« years. : Q. Are youl a member. of the local of the Bujlding ang Main- : tenance Employees. Union ?—A. Yes, sir. , Q. Do you recall the strike that was mentioned?—A. The : "down. last strike? _.Q. Yes; the last. strike. ik ties Ge ey nance employee hus. been discharged on complaint of. any ten- : ant of the building? . - Mr. Merritt. Objected to as incompetent, irrelev ant, ve . immaterial. phe The Court. I sustain the objection. This i is hot-a labor réla- tions case but a W ages and Hours case. ae . Mr. Reyman. It is intended, your.Honor, merely, and di- : rected only to showing that the tenants do have some degree - .of control dver the tenure ef the employees. e cote Ate *. ; , i ee? Se Z es 7 “ ° S- a the Court: Oh, a complaint results. i in action by vchtiabe : else ; Mr. ReyMan. We submit to your ainie’ s ruling: Who is your immediate superior there, Mr. Simon? That j is, whom do you take order's from directly?—A. Well, I take orders from my starter. it & ‘The Covurr. Is that the gentleman who was just. on the stand? - .The Wirness. Yes, sir. ——— fhe Covrr. And what was his Tame? Sake ‘© The Witness. Mr. Andersoh. Q. Who is generally in charge of the maintenance employees, while you were there?—A. Superintendent Ferdinand. Mr. Ferdinand. - ‘Q..Who employs, the Arsenal Building or Spear & Com- pany, or someone else?—A. Well, I am sure it is Spear & - Company. * The Court. I do not think really that is thé way to Prove whom he is employed by. Mr. Merritt. You are not trying. to establish that these are . . the employees of Spear & Company, are you? Mr. Reman. No, sir; I simply-want to show the setup within x the building, according to the employees’ own ideas. . ? Mr. Merrrr. I believe that we will concede that in the selec-- tion of the employees Spear & Company acts as agent for the ‘Arsenal Building. | The Court.* And they pick out these people. Mr..Merritr. And pick out the men. Mr. Reyman. That is fine. ie ‘Fhe Courr. And probably the sepetinteivdent, if he has - reason for doing so, would discharge an employee; is that tight? _ Mr. Merrirr. Yes, sir- The superintendent ‘ae(ually does . the hiring, as I undersfand it. - The Gourt. The superintendent actually does the hiring? nee The Wrrness.: That is right. \ The Court. Arid Spear & Company decides who, is to be hired, do they? -, . Mr. Merritt. Well, the superintendent would be selected by Spear & Company for the Arsenal Building, and the super- intendent. in the ordinary course of affairs would decide who would be hired or dismissed: ~ , The Covrr. All right. Then he is paid by the building arid not by Spear & Company? i Ms. Merritt. Right, sir. - Mr. Reyman. Then that is sufficient. ° - ? hots a ne es 73°; ‘The Werwnne. The paptrintondent pays us a salary. The Court. A salary by the building, the: Arsenal’ Building. ‘The Witness: Thatistrue: The Court. So you get that differerice betweein the informal “point of view all of us have about things and the real point of _ View. _,Mr. Rnineay. Precisely. The Court. The real moins is that Spear & Company may be . _._* the agents of the bi _ and then the superinténdent’s salary is paid by the building ~ and he engages and discharges the men who are employed. _ Mr. Reyman. That is right; and ‘your Honor has .in mind the definition of “employer” as contained in the Act. That is my only purpose, to show the relationship as it actually does exist and the relationship as it must exist under the purview of the statute. The Court. What is the dilinition of “employer?” Mr. ReyMan. -It is‘rather broad, your Honor, in Section-3 . | (d) of the statute. “Employer inicludes any person -acting directly or indirectly in. the interest of an employer in relation to an employee, but shall not include the United States” and so forth. Thatisall., ° Mr. Merrit. Don’t you want to change his testimony from . 47 hours to 46 hours as the time he works? Mr. .Reyman. How} many hours do you work a week? _ The Witness. 47. | ’ Mr. ReyMan. 47 the witness says, Mr. Merritt. ° | _. Mr. Merritt... Well, we will correct it later. N 0 cross-exam- ination. The Court. He said 47 hours j a eh. Mr. Merritt. That is what he said, but I think he is wrong. Mr. Rozen. We have the pay-roll records here. C The Court. Let us not go into that now. * Harry Buu, called as a witness on behalf: of the plaintiff, ~~ being first duly sworn, testified as follows: . : _~ Direct examination by Mr.ReyMan: > -Q. Where do you live, Mr. Blum?—A. 392 East 4th Street, _ Brooklyn. Q. And where are you employed ?—A. 463 ‘Seventh Avenue. Q. What is the naturé of your employment; what do you ’ do there?—A. Passenger:elevator operator. Q. How long have you been a agieecettl elevator sere ra A. About two years, j* \ 74 (). W hat are your hours of siork usually? Your daily, hours ot work.2°A, W, ‘ell, it is an 8-hour day, but we have different— we switch around, in the hotfs, every week: nd a late shift?—A. Yes. day light hours, is that - te ap Be f * Q. There is an early shift Q. Birt it qll is: duri true?—-A. That is it: Q. Is. there a starter in’ the hobby of the building there?— A. Yes, sir. -Q. And the entrance to the passenger - elevators, the lobby, fronts.on which street? How do you get into the lobby where ‘the freight elev aes: from which mer) A. To the freight elevators? Q. I mean the passenger elevators, excuse me. oA: Well, the main entrance is.on Seventh Avenue, and runs oblong into the building ;+ then we Tiave another entrance on 35th Street. Q. So you can get into the lobby by two 0 diferent doors?— A. That is. night. Q. Do’ you ever carry freight on ‘the passenger élevators? . The Court. Eyer carry what? * ~ 4 Mr. ReyMn. Freight, mérchandise, packages, A. Packages we carry. °Q. What kind of packages dS you carry?—A. They: are single packages. No heavy freight. Q. Who genereily has them? Are they put or there? Are * they. in your. custedy or the custody of someone else?—A. Individual buyers. ‘Q..Are you generally operating the ear, or do you have - periods of waiting for passengers during the day?—A. There might be a full minute waiting:and sometimes. 20 seconds. Q. Generally speaking and. compared to the average build- ing. are you busy or not busy? _ Are they busy freigt it elev a- tors? tek: Mr. Mennirr. I object to ‘a comparison with: the average” * building. - . - ants engaged in th ‘A. That is so. . Mr. Reyaan.-Letgnte rephrase it, then. | - _Q. The Arsenal quinn is a loft building and contains ¢en- anufacturing of dresses; is. that true?—- Q. And you have been in other buildings. of diastlar size, I take if, in t se¢tion of the city?—A. I have been in them but never worked. Q. Have you at any time watched the lev ators in any other buildings to see how frequently they run, how many there are, and so on?—A. I never took any particular notice. @. I see. All right. Are dress racks ever earried on the passeidger elevators?—A. No, sir. » Pietarrd Byes se HOU Q. How -big are "they, jus re roughly, spe _ know how big they are?—A. y big? . : -Q. Yes; how big are. they?—A. 5 by 6 or 7. agit .Q. You say they are much smaller than the@Meight eleva- tors?--A. They are smaller, By Mr. ReyMan: -Q. Are there any directional signs to show which tenants are on particular floors?—A. Yes, sir. Q. Where are those signs located?—A. ‘They ‘have one big directory in the main lobby, then they have re. di- - rectories in each car. Q. n each cap?—A. Each passenger car. Q. Kor the floors, the different floors?—A. Yes. . Q. Is. there any-other marking on the elevator:door or other- wise to” show which floors the tenants are on?—A. As. you land on any landing the names of the firms are on that door. ‘Q. Are on the inside of the door?—A. Are on the inside ing? Do you ° of the door, facing the passenger. * ; tiff, being first duly, sworn, testified’ as follows: Q. So the person on the elevator can wee it without get- ie ting off?—4. That is right. - — Q. What kind of business, if you know, are the people gen- ‘erally engaged dn that ie carry up and down in these elegy vators; -who are’ they?—A. Silk salesmen, different buyers. Q. They are persons transacting business with the ten- -ants?—A. That is right. Q. How do you know that; Mr. Blum? 2—A, Well, we have these people, the sae people, pretty near every day. That is silk salesmen. And we get to know the buyers pretty well ourselves. .Q. Do you know wliether’ or not.many of them are out-of- town buyers, that they come from other places? Mr. Merritt. Do you know?—A. I cannot say. Mr. Reyman. That is fair enough. feats Mr. Merritt. Fest enough, but’ I’ was afraid it might not ¢ be fair. . j Ps Mr. ReEYMAN. That i is alls . A Mr: * Merrry: No cross-examination. GerHarp Herper, called as a'witness on behalf of the plain- . Qireet examination by Mr. Rozen: ‘Q. Where do you reside; Mr. Heeder?—A. 550: East 134th Street, Bronx. : 4 \ fee ee , ‘ garbage and stuff we find on the floors and burn it up, and if | "it is too much to take ‘down we tie it pp and leave it there in . 76 Q. Where. are you employed?—A. 463 Seventh Avenue. Q. In what capacity?—A. Porter. , Q. Will you describe what your duties are as a porter, Mr. Heeder, please?—A. I have certain floors to clean and stair- ways and we relieve on the freight elevators. Q. What floors are assigned to you, Mr. Heeder?—A. ‘Six down-to the second, and the mezzanine floor... -* Q. Aud what are your duties in connection with those floors, from the” mezzanine up to the sixth?—A. We sweep it in the morning and we clean the toilets and we take down-all the the hall, for the garbage man to take. Q. Where do you burn it?2-A. Down next to the boiler, in the incinerator. $y Q. And. when you say garbage man, whom do you mean by .that?—A. Well, I guess'the fellow who i is supposed tp take the paper and stuff away. Q. Is that the refuse,-thé clippings and | ‘80, forth?—A. Non ciippings, no. -They are paper boxes. *.Q. When do. you wash the floors?7—A. W henever we _ Bet Q. Paper. boxes that the fenants have icine out into the freight élevator entrance?—A. In the hall, in the freight hall— not the freight hall,.the.certain hallgsywhere we work. - Q. Is there much or little of thig refuse?—A. Much. Q. And is that true of all the temants?—A. Yes, sir. . Q. Do you wash the floors?—A. Yes, sir. time. -./ ’ Q. Every’ day’ 2A. Some every day. — Q. Do you also have charge of the staircases?—A. Yes. (. There are staircases, are there, between every floor?—A. ax: sir; three of them. ‘ Q. Three staircases connecting ea floor?—A.. Yes, sir. Q. Who uses those staiteases, if You know?—A. The ten- ants. and truckmen.” Q. Truckmen’ too?—A. Yes, sir. Q. Do you clesn the staircases as well?—A. Yes, sir. yee _ put in the lights. Q. Put in what?—A. The lights. The Court. if a bulb gaes out, you — it? - ’ The Wirness. Yes, sir. Q. Are there any Railway Express | men located for any ‘part ofthe day on any floors that you have charge of?—A. There is on the fifth floor a desk next to the chute where they shoot dawn them boxes and he uses thie desk to write out his stips, I Supsrpee. eee: M . Ve Sate ca e SOG DOMES Nowe eee Ae QA MA CRD Ser A Swng OP Gown “AE aay ts tt et tte ae eee ew -? © 77 _ Q. How much of the day is devoted to that desk by the er yd Iexpress man ?—A, I could not tell. © ; Q. Is it a half a day or‘whole day?—A. I would not know. ° Q. How frequently do you see him there every day?—A. I see him’ every day, yes, but not always on ‘the fifth floor; 3 @ Sometimes on thesfourth and sémetimes on the third. > . Where does he get his desk?—A. He put8 i in the hall. ras Q. That is in the freight elevator hall, is it?—A. Yes, sir. '- Q. He uses it as an oXice, is that it?” Mr.- Merritt. Oh, I object. ted Mr. Rozen. I did not mean to lead the witness, your Honor. The Covrt.-Oh, yes; but what difference does it make? Ob- _ jection sustained. It is just a waste of time. Mr. Rozen. I wanted to show, your Honor, that the Railway Expressman uses a portion of the freight elevator floor ; some- times the fourth and sometimes the fifth, and that floor is cleaned and lighted and heated by the maintenance men‘ and employees of the. building. © The Court. Yes, I have heard all of that before. Q,, In addition to your duties as a porter, do you do any, other things in the building?—A. Well, if the chief tells us ‘to do something, we do it. Q. Will you‘ describe your regular duties outside of your - porter duties that the chief. tells you to do?--A. Well, most _ of the time we clean floors in order to pat down new linoleum, maybe. y Q. ‘Clean floors where?—A. Well, in some,showroom or in some storeroom. © Q. In premises that have been .leased to a tenant, you. mean?—A. Yes, or else he will send us—I mean Mr. Ferdi- hand—to paint somgfhing, mostly floors, and once in a while '. » walls too, /or we b down some partition or wall or show- - ease or something like that. Q. Do you do any other work besides that porter work?— A. Well, we relieve on the cars every day. -Q. You do?—A Yes. Q. At what hours?-—A. Between. elevén and twelve. Q. What cars do you refer. to?—A. ‘The freight cars. Q. That is every day in the wéek, is it?—A. Every day, -and once two hours on Friday.’ Q. When do you do two hours on a stretch?—A. On Friday. Q. These alterations, that you described, knocking down — walls, at what points in ‘the tenant’s ocpupancy are they’ made?-LA. Well, witha small tenant I would say only when . . they move-in or move to a different location, but ‘the bigger ones they will call us any time they have re to do. — r- me ep Klee 4 8 lata pink ae ee Q: You said Abed 3 you cleaned the ran in the build- ing?—A. Yes, sir. Q. Will you describe where those lavatories are located that you actually cléaned?—A, They are léeated in the public hall ‘on each end of the building—the west and the east. - Q. Are any of them ldcated inside of tenants’ premises that _ you clean?—A. Not from the building; no, sir. ~ Q. Haye you ever cleaned any of the lav atories or worked inside the premises in tRat respect, the premises of a tenant?— A. In. my own time; yes, sir. é The Covrr. “On my own time” you mean? ° The Witness. On my own time. The Court. They gave you something extra? | - The Witness. They give you one hour lunch, and if you have something to do, they give you-something extra for it. Q. How long have you been there, you say ?—A. About. fifteen months, I think. Q. Do you ever act.as a. fireman?—A. No, sir; I burn stuff, that is all, but not to make steam. gee: “Mr. Rozen. That is all, your Hgnor. Menarre: Q. During this period of fifteen months what have a : ~ been called upon to-do by your employer for some large’t ant in the way of.fixing up the floors or changing partition and so forth?—A. Removing oilcloth, cleaning floors, painting). floors and knocking down walls. Q. Now give me the “name of the tenant?— A; Wiesen ons. The-Covrt. That is the one we have been oes about’ ...The Witness. Yes; and. Max Schneck, and there is a guy on the third floor, Kaplan & Elias. The Court. Are they big tenants? 8 - The Wrrness. Well, they have got a half a floor. Q. What did you do for Kaplan & Elias, and when?—A. Well, Kaplan & Elias, they had a rush job of laying down linoleim in the showroom so we had to soak it with water. and scrape it after; dry it up again in order. so the lincleum could be laid right away. Q. Were they making any changes in those premises at that . time?—A. No, sir; ju@ to the floor covering.. ¢ _Q. How long had they been a tenant?— A. I could: not- tell you, sir, : Q. What time of year was it?—A. Tiat was about a month ago, or two weeks ago. =: Q, Was it when their oid lease was. expiring? °_A. I do not | _ think so, but I do not know. eae | EY ach - eee Cae e - 79 Q. Now, what did you do for Wiesen?—A. Well, for Wiesen we cleaned up many a time and we knocked down‘walls, and . we did the same work I just described, and we nioved stuff - around. _ | Q. And you did this all during the time. vou were employed by the Arsenal «Building Company, or did you get specially. — * paid for it by Wiesen?—A. No, we did not get specially paid. - We got a tip, but I did not consider that specially a because : it was too little for that. Pas - By the Court: ‘ Oo 4 ee -Q. Was. it on your office. time, so to speak? You did not : do that on your own time?—A. I didi it on the boss’ time. Yes, six. Q. And they gave you arlittle tip?—A,. Yes. fi Q. So you have been paid by: ‘the boss for the time?—A: ? By Mr. Merairr: ogy git Q. Who directed you to do that?—A. My chief, the super- intendent, Mr. Ferdinand. Q. How: long ago was it that you last did ek of that kind for Wiesen?—A. Ido not know. I would not know... It was inside of this one year I am there, or one and a half years. Q. Was some of that work being done when the arrangement. on the rooms was being changed?—A, Yes; some of the work when Wiesen took his son’s, part of the 21st floor and then :-the-whele-floor_the same floor, the 21st. - , Q. Andy ou ‘did this work. to get the. hey premises in shape - for Wiesen to oecupy?—A. Yes, sir; some, and some to get his shop in shape and his showrooms and stuff. ~ Q. Was it all done at about the same time?—A. No, sir. There was a period:in between. I do not know how long.“ Q. What did you do for Max Schneck?—A. Cleaning up, and we painted some and we did some of the same floor work,. you know. Q. Was that during the eda of his becee or whgn his lease * had expired ?2—A. Well, once 1 knew it was not expired, and the last time I would not know. He gave up a floor, or half a floor, or something like that. ‘ 3 ‘ Q. And in all of\ those instahges you were not paid by the tenant except “that he mav kave given you a ti Q: And in all of those instances you did the work during _your regular hours, and weré émployed by the:Arsénal Build- ing Company) 2—A. Yes, sir. Q. Do vou recall that Max Sener. gave up half a * floord— A. Yes, gir. Sen ae? are kee ies we % 5 ; 4 also. 2 80 — Q. Did you re is work at. about that time?—A. Some of it I did, yes, sir. nate ely Cage Q: Most of it?—A. Well, even mott of it; ; yes, sir. Q. And that was work done in conneetion with an effort to make the reduced premises suitable for his use, wasn’t it?— i A. Not only his reduced premnises, but the- ones “he occupied: ; ” Q. But it was all in connection with those changes involved . in the space he was taking?—A. One floor was the 11th and one fe was the 12th. ; & .Q. And on which floor did he give up half a floor?—A. ‘The id 12th, but we worked also on, the 11th, right on his present ; ; premises. ris «= Oe -Q. Were there changes being made in his occupancy ea © the 1th floor?—A. Idenot think so.. « — » .. Q. You mean that each room was being used’ for the same ' purpose that it had been used, before?—A. I would not know. _ Tonly know we worked in his passenger hall.. He put out some showcases and we had to knock out and paint. Q. But so far as you,knoW when he-reduced his two floors™ to a floor anda half it may have been involved in his particular space he was using on the 11th floor? A. It may be. Q Redirect exainination by Mr. Rozen: * Q. One more qu uestion: my associate reminds me I did rot . ask you whether‘all the porters relieved the freight-elevator men ?—A. All the porters but. the front hathporter: : Q. And what is‘his name?—A. Jay Garcia. - ra Q. He does not rélieve the freight elevator ib: Not zz on the freight cars. : ‘Q. Does he relieve on the passenger cars?—A. Not relieve. S He takes it for a half an hour or so, I think. | *.Q. Do you think or do you know?—A. That I kitow Q: He does work on the passenger elevators a half an hour each day 2—-A. Or it may be an hour. Q. Does he havé any spécial duties when he works on this passenger elevator?—A. No; sir; not that I know. ~ - Mr. Rozen. Thank you. | (Short recess.) ‘Eur Davis, called as a witness on behalf it the plaintiff, be ing first duly sworn, testified as follows: | Direct examination by Mz,. ReyMan: -Q:- Where do you live, Mr: Davis?—A. 129 Shearman Ave- nue, , Manhattan. » . : . tre ees an sir. 81 ¢ Q. And you are ntl. at the Arsenal Building, are - you?—A, 463 Seventh Avenue: ‘Q. What do yoy do?—I am assistant starter. ° Q. Assistant starter of the freight or the passenger item tors?—A, The. passenger elevators. Q. And-where is your station in the building?—A. I stay. on -the main floor, in the lobby. - Q. And there are two ways to-get into the building?—A. Two ways. “Q. Two where you stand?—A. Yes, sir. Q. Do the passenger elevators go ‘below the floor on. ‘which — you stand?—A.. Two of them; just two. Q. And where do they go 2A. The basement, and two—we have two cars go to the basement, and they go to the office,’ what we call, on the roof. Q. And that is the office’ “of Spear & Company?—A. Yes, © * Q. Do the stairways in the. building come outsin that lobby?—A. One stairway comes to the lobby; yes, sir. * : Q. And that one stairway runs to the upper floors—all of . them?—A.I suppose so. You see that is not my business. : Q. So far as you are concerned, there is one doorway to one stairway?—A, One stairway comes to the lobby. | Thé other stairways I do not know anything about. - Q. Do ron know who keeps that stairway clean?—A. I do a starter. re Q. In addition to passengers carried. on the elevators, the passenger elevators I am speakifig of, is anything else car- ried? Merchandise and packages es? A. Well, this is the only thing I see, if people coming in with boxes—not. big boxes— little boxes. I do not know what-they got or what they do because we are not supposed ‘to ask those questions. Q. The boxesgyou see brought in by people are usually car- | ‘ ried by one.person, is that so?—A., One person; yes. Q. Do you have anything to do at all with the freight ele- vators?2-A. No, sir. Q. Can you say whether or not merclia dise is carried up- staigs through the staifway you have mentioned?—A.: No, sir; Ido not.know. I am in the front at the passénger- elevators. Q. Can you. see the door from where you stand?—A. I see ___ the door but 1 do not s see anybody’ go away and go in with merchandise. re eet: saline gee Q. You do not-see any?—A. No, ‘sir. o 401225—41——6. fo 82 - Q.-What was ¥gur last answer, Mr. Davis?—A. I do not * see anybody come down—what do ya — Trucks or things? -Q. No; I at tryipg to ask you whether or not-that stair- ; ” - way there that cories into the lol A. Yes. | ” Q. ——is used frequently for the passage of merchandise?— A. No: there‘is no merchandise goes through there. People - goes up to the second floor or third floor, walking up there, and probably have a little box, you know. . That is, some people are rushed and they want to go right up, and if the elevator is not on the main floor they walk up, that is, to the -second floor. I do not mean they-go to the 22nd. By the Court: . Q. ‘Is this the floor I am showing you here [indicating on diagram | ?—A. I understand. I stand in the main lobby, your Honor. | oe Bes : -Q..Is this the main lobby opposite the passenger eleva- ~ ters?—A. That is the main lobby and the passenger ele- vators. ~@Q. And this is the staircase you are taiking doh the left l bE Saye” ye a Patan _——- 72 Sak att lee NG Sy yt tel 6 tat _as-you face the passenger elevators?—A. I did no k about. that stairway, but he asked me. I do not und nd that — part. I only said I was assistant starter and run the elevator during the reliefs. Q. On which side do you stand?—A. When I stand, they. stand on my left hand. Q. That is the sttirease?—A. The staircase; yes, sir. - Q. When you start these elevators of course you face the. elevators?—A. i face the elevators. Q. Are two of you engaged in rinning these passenger ele- vators? You said you are an assistant.—A? I am an assistant, and there jis a man above me, which is the starter, and I.am . taking orders from him. I da relief like; I relieve him and I relieve the operators for lunch or recess. Q. You mean run the elevators?—A. Run thé elevators and | then assistant starter. . Q. You have a perfectly enormous traffic in the siovatere: , do you not?—A. Yes; we have. quite a ‘traffic. By Mr. ReyMan: | e zi ne Q. Mr. Davis, are you called upon from time to time to 4 " answer questions asked by people coming into eae ‘EB “ ony A. ‘Yes, sir. ~Q. Do they ask you about. the beistriaaida of the various tenants and for direction to the several floors?—A. Well, . : 3 * + = FIRB, Dik ae put a-witness on.the. stand. | . @*.* 8&3 Ay Se people that come. in in a hurry have asked me what floor i is SO- and-so, the tenant; and so this is a part of my business there, to.tell them and say the 12th or the 43th or the 15th and so on, and Itell them that and that is all. . Q. Do you know the busfpess of any of the peoplé -who come’ in there and that use the elevators?—A. Well, I pre- sume they are buying something or selling something, because _it is‘a garment building. The Court. I should. think that is a a safe guess. Q. .Do any of the people that come in there ever ask you about manufacturers with particular price «lists. or Mr. Merritt. I object to that questjon as incompetent, ir-. ’ relevant, and immaterial. The Court. Particular price lines? Mr. Reyman. Yes; price lines carried by the several ten- ants; whether or: not any questions are ever directed tow ards that The Courr. T cannot conceive of the relevaney of that. I sustain the objection.- ; Q. How long have you been there, Mr. Davis?—A. I am there since@928—about twelve years. ; Q. And you have known a number of the other elevator operators and porters there during the time you have worked ‘there, no doubt. Do you know of your own knowledge whether any employee, elevator operator, or porter or main- tenance Man was discharged on a complaint of any of the . tenants? Mr. Merritt. Objected to.as. incompetent, irrelevant, and immaterial. = The Court. Objection sustained. Mr. ReyMan. That is alli. Mr. Merritt. No cross-examination. Mr. ReyMan. If the Court please. we have asked the other side AQ produce and have here what are -conceded to be, I assume; pay-roll records of the Arsenal Building C orporation. . We have them here for the year 1941 so far, and‘also 1938 ‘and 1939. ~Thé authenticity of the records are adinitted, L-. . assume, Mr. Merritt. Oh; no. You will have to ot: a witness on. Mr. Revman. You want them prov ed? Mr. Merritt. Yes; but I won't be technical 2D it. We have been accommodating and gave you the material in ad- vance, so that you could look it over and’ wee about it,: but we do not concede there are admissions. Yotwill have to. oN es. He can authenticate them, or Mr. Ferdinand. 84 Mr. Rosaw. Why. cannot we is Mr. Spear on in oat _ Mr. REYMAN.: I will call Mr. ‘Ferdinand, ee Firnpiwanp, called ag a witness on behalf of the plain- tiff, being first duly sworn, testified.as follows: (Folders marked “Plaintiff s Exhibits 2 and 3” for identifica- tion.) Direct examination by. Mr. REYMAN: ‘ 3 Q. Where do you reside?—A. 8907—247 Street, Bellerose, - Long Island. s Q. What is your ‘devtigation® =A. Superintendent. Q. Of what?—A., 463 Seventh Avenue. Q. Who sea had employer?—A. Arsenal Building Cinna NE os « Q. You are in charge, are you not, ofsthe maintenance men, that is, the elevator operators and porters?—A.. Yes, sir. . > Q. Handymen. and: electricians?—A. All the help of the building. Q. The maintenance employees?—A. That isright. The Court. How long have you been superintendent? __ ~ The Wrrness.. In.that pee building ever since it was opened, sixtcen years ago. Q: Do you keep records concerning the hours, wages, and other data concerning these maintenance employees?—A. Ido. - Q. I show you certain documents marked Plaintiff's Exhibits No. 2 for identification and No. 3 for identification, and ask you whether or not these sheets are sania by you or under’ your supervision ?—A. By me.. Q. Prepared by vou personally ?—A.. Yes, sir. Here is my signature [indicating]. _Q. And you have signed each one of the sheets?—A. Each one. Q. In each’ one of the two folders?—A. That is right; yes, ~ gir: Q. And-the records on thiere are the complete and accurate records of the hours and wages of the several employees whose names appear thereon for the periods shown?—A. That is right. - Q..Doyou want to look at them?—A. No, sir; _that i is my handwriting. The Court. What periods are shown on them? - : Mr, Reyman. We have here for the year 1940 and part: of ; the year 1941. Those are Plaintiff's Exhibits 2 for 1940, and 3 for 1941, for identification. . _A number of ledger sheets are bound in thése folders which I suggest ought to be numbered through for the purpose of the record. The Court. What do you mean by numbered through? Rll Reman. I think we ought to identify the number of - sheets. The Courr. Count them. I don’ t want to have a separate number for each sheet. : Mr. ReyMan. But a binders ought to show the number - of sheets. | The Court. All right. How many sheets do they contain? I suppose one for every week. - The Witness. Two, sir. * Be te Court. There ought to be 104 if I know how. to cal- culate. * Mr. Reyman.. That would be for Exhibit No. 2, and there are 20 sheets in Exhibit No. 3. They are offered 1 in evidence, , - if, the Cour# please: ~ Mr. Rigen. ‘I thought your Honor said ‘this morning you wanted thé pay-roll records in evidence. We have 1938 and 1939 and we are not offering them because we thought per-", . . haps—— - The Courr.‘t don’t know,what you want. to do but I thought the pay rolls ought t,t be a part of the evidence because that ‘ “Js one of your points. * > ss . Mr. Rozen. Yes; wets Henor. ~ ‘The Court. The number of rad they worked and what they got paid. © ei Mr. Rozen. Yes. — The Court. They ‘have oreo the whiniate limit of min- ‘imum pay now, haven’t they? At the present time? The - highest minimum pay required by the statute is enforced as against such employees as may be. subject to the Act? . _ Mr. Reyman. That is true. There was a minimum of 25 cents required in 1938 up to 1939. So now they are-receiv- © 6 ing 30 cents and the 30 cents will stand until seven years “ . after the effective date of the Act unless changed by Congress - _or an applicable wage order, but after the expiration of the - seven years from the effective date the minimum becomes 40 cents. (Folders marked “Plaintiff's Exhibits 4 and 5” ‘for identifi- cation.) , The Court. Are those others all right? Mr. Merritt. Yes. I have made rio objection. (Plaintiff's Exhibits 2 and 3 for —_——_ received in ev idence. ) Gs 8 6. Now, Mr. Fetdinand, I shdw you Plaintiff s Exhibit 4 for identification, purporting to be. records covering the year 1938 of the wages andshours and other information relating to the _ employees of tlt Arsenal Building, and ask you whether or not you ‘prepared. those retords?—A. I did; yes, sir. Q. And they are the authentic records of the corporation for those employees?—A. Yes, sir. = i were charged with the duty of preparing them?— A. Y CSS - Q. F dion you | Plaintiff’s 2xhibit 5 for identification, gv ing the year 1939 and ask you whether or not. those @@ tt true records for the same purposes as ‘to’ those employeés?— -A. Yes, sir, they are. Mr. Rey MAN. They are offered 3 in ev idence, if your Honor please. : (Plaintiff's Exhibits 4 and 5 for identification para in Rhesus Fe : Cross examination by Mr. Mesarrr: Q. Some testimony has been offered here as to some of the »uilding service employees of they Arsenal Building, tp the ef- . _T- f fect that they have cleaned floors and helped lay linoleum and — . _ knock down Walls, in connection with the leased premises of some of-the tenants. Can you tellus under what circumstances your employees do that work? . ' - Mr, Rozen. Dol unde rstand, your Honor, he is making him - ' Kis own witness now? The Covrr. That makes,no. difference now under the sfes- ent rules, , Anyway tlffs:is a convenient way to do it. aa A. We do that to make lg in renewal of leases. Such as kflocking down partitions, Meaning floor$ and So forth. Will ‘you tell us just theeroutine, as to the way in which : you do that? ‘Does it have to eomé by direction from you, or ~ how ig it done?—A, Weil,.when I am’told by the office, Spear "-«€ Company, just what we intend to do to that loft, I isste orders te my:help to gu ahead and do it. That is as-to cleaning and knocking down partitions. Q.: Would that apply to the laying. down of linoleum? : A. Notdaying linoleum. “{amean they never lay linoleum. Q. It would apply to cleaning, the floors in the prémises of » the tenants?— A, That is right, be ‘fore the tenants move in; V es sir. f The Cov fi. What they said about lavias tineleum was a little ‘bit eqtivoecal. It might have meant that‘they cleaned the floors before the Lioleum was laid and it might have’ meant they were laying the linoleum. Of course, you would ¢ ‘ al ‘ . 4 Reg t4i de: SILER etic a i at rd . oS ae ae, a ~ ¥. ae ; 87 : have to have the floor pretty. clean to lay linoleum, otherwise the slightest unevenness or plece of dirt would cut by degrees © through it. Mr, Merritt. I rather gather you have the right answer. - Q. So far as-your knowledge is concerned you ‘have never- known anv’ of. your employees actually laying linoleum for any of the tenants?—A. No, sir. a Q. Have you ever known of your employees cleaning the floor preparatory to the laying of linoleum by the anes | A. No, sir. : ae The Court..Of course, ‘these people would want to put the, linoleum jn themselves,’and I think it is most unlikely that a person of just ordinary experience would take part in the lay- -ing of it, as it would have to be done right to have it flat. I dg-not think it is very material, anyliow. Q. Have you'known of-any instance where your employees -have’ cleaned the floors of any of the leased premises excépt , on. order's receiyed from your—-A. W ell, I don’ t ‘know of any eee at all. e Court.; You would Hot be apt to, I guess, ” The Wrrness. I guess not. Q. Do’ you mean by that. that it would ‘be contrary to the rules,,and' regulations of the building. for your employees to clean floors without directions from you?—A., Yes, sir. The Court. Are you through? Mr. Merrrr. With that particular point, yes. The Covrr. Is there a caesura so I could ask a question? Mr. Merritt. Yes, sir. a ‘By the Covet: ©) ct . Q. I would like.to ask you one or two things, There has — ef put in evidence a ttle folder about the Arsenal Building - whieh. contains the customary handsomie * architecture, etc., . and ground plan. Am I to understand this is on the norths, dast corner of 35th 8 ‘treet and SeventhsAvenue?—A. That. is correct ; yes, sir. . ’ mt That means yu do. hot occupy the’ whole block ?— A. No, sir; not the whole block. Q. It says 200 feet on 35th Street and 98 feet Auincties en” Seventh Avenue.—A. That is correct; yes, sir. Q. The reason I ask: you these things i is because I want. to get a picture in my mind how, the people come in. T he main entrance ‘as. T understand it is this doorway shown. in ‘this picture in the midtlle of the building on Sev enth Avenue.— LA. Yes, sir; there i is also § a side entrance on the ‘street. , a 88 ’ ? . ° : > ~~ Q. I was going. to say there: i is. leo a side. entrance which i is over on 35th Street?—/A. Yes, sir. Q. In addition to that there is beyond a place ‘aie you can bring in freight from 35th Street?—A. That is right, there is an entrance there for freight. © Q. As I look at this picture it shows also whére the spiral - chute is. You know-what the spiral chute 4 is, of course?——A. Yes, sir. - é Q. The spiral chute froin its pogition “ae I would saysseems (ty be gn your left-hand side if you were facing the freight ele- “vators—A. Yes, sir; correct. Q. Where is the entrance in which the American -Express Company trucks come to ayail themselves of the use of that - spiral chute?—A.. It is a separaté, entrance = a drive- way. q . floor. Q. ‘Can you show it to me here?—A. Yes, 5 sir. Q, De net mark it.—A. The spiral chite is here. That’ was widened some time back. ~ This is the fire tower stairs coming down, and the express runway is right in here. Of course, that is before-—— ° Q. Yes; I understand it was formerly owned by another com- pany. before you bought it——A. Yes, sir. Q: So the express runway is——A. it of the freight hall now? * Q. West of it?—-A. Yes, sirs Q. Just west of the main freight hall?—A. That i is right. Q. The express trucks would come in here at 35th Street?— A. 35th Street; yes, sir. - Q. There would be room for one truck to back i in ?—A. That. is all. Q. Can it back all the way in so’ that it is off the sidew#tlk?— A.. Yes, sir; backs all the way in. Q. Then there is a chute, and it can Back far enough i in to get in contact, can it, er near the chute?—A. Yes; there i is a little , platform, dnd from the platform to the mezzanine flopr it is * open. It is‘about 6 or 7 feet. There is just &% little drop. ‘ Q. I was just wondering whege the passenger elevator i s— A. That circles around the passenger cars. - The building is , practically 100 feet deep,.and the runway goes deep, } Q. So when’you ge in you go arourid the passenger cars,’ and you- have, to back out aroungape passenger cars?—A. No,: ‘sir; there are passenger cars in ba®® of that yet.. Q. Is it on the floor below ?—A. No, sir; it’ is on the main afi 89 era -Q. Yes;. that: is , right, So this.is not the mezzahine I see ' here?—A. ‘No, sir; the fire tower stairs coming down. Q. This is the first Hoor?—A. That is the first floor; yes, sir’ Q.° So all the elevators go down to the mezzanine; all go down to this floor?—A. Freight cars only go to the mezzanine. The passengers do not stop at the mezzanine. There is no *~ connection by the passengers with the mezzanine floor. fe V.0 @ There is no connection between the paysen ger oo and the mezzanine floor at all?—A. No, sir. Q. Add the passengers cannot get off there?—A. They ea- _ not gétjoff there: . °Q. They have the spiral chtite here, but this is the- main floor alid-the spiral chute stops xd the mezzanine, does it?— _ 4A. It stops at the mezzanine; yes, sir. , - , Q. The spiral chute goes down from the seid ke the mezzanine: and when. the American Railway Express trucks come in F suppose they oeny back in, don’ t they?—-A. They back right in; yes, sir. - Q. They back in and get into a position whens there 1 is an- _ other little chute that curves around?——A, Just a drop. Just «4, aslightdrop.. - (Adjourned, to Teesday, April 1, 1941, at 1 o'clock, a. m. n-) q ¢ .o ‘New York, April 1, 1941 joey, 7) ‘clock a.m. ; -. DRIAL “RESUMED, ; “Mr. Merritt. If it will be of any help to'your Honor, here is a diagram that was prepared by some of the people having to do with the defefidant’s building, and I uriderstand the counsel for the Governmént are glad to have it-offered. Mp. REYMAN. Perfectly agrecatie. I should like to ‘have it in. The eins That is one I was talking ‘about yesterday i in reference to the chute and other things? Mr. Merritr. Yes, The Court. It represented what it was lovioerty under: dif- ferent ownership. ‘ ori Merritt. This represents the present condition of the uilding. The Court. The witness ean testify to that and it may be @ very good thing to have it in. Mr. Merritt. Yes; I suppose he can. a The Court. -1 40 no [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0043%3A1. Public record. Not legal advice.