Fleming v. AB Kirschbaum Co., 798.

Decision Date02 April 1941
Docket NumberNo. 798.,798.
Citation38 F. Supp. 204
PartiesFLEMING, Administrator of the Wage and Hour Division, United States Department of Labor, v. A. B. KIRSCHBAUM CO.
CourtU.S. District Court — Western District of Pennsylvania

Ernest N. Votaw, of Philadelphia, Pa., Abner Brodie, of Newark, N. J., and Edward J. Fruchtman, of Washington, D. C., for plaintiff.

Sidney L. Krauss, Wm. Clarke Mason, Frederick H. Knight, and Martin P. Snyder, all of Philadelphia, Pa., for defendant.

KIRKPATRICK, District Judge.

This is an action under the Fair Labor Standards Act (Sec. 17) to enjoin certain violations of Secs. 6 and 7, 29 U.S.C.A. §§ 217, 206, 207. The defendant concedes that, as to certain of its employees, it has not complied with the requirements of these sections.

The constitutionality of the act having been established by the Supreme Court in United States v. Darby, February 3, 1941, 61 S.Ct. 451, 461, 85 L.Ed. ___, the only question to be decided is whether it is applicable to this defendant.

The defendant is the owner of a six-story loft building in Philadelphia, portions of which it leases to manufacturing concerns, mostly in the clothing business. The tenants are engaged in interstate commerce, but the defendant has no interest in the business of any of its tenants.

As part of the consideration for the rent, the defendant furnishes the services of three elevator operators, two watchmen, three firemen, an engineer, a carpenter and a carpenter's helper, and a porter or cleaner, all of whom are employed and paid by it. It also employs a cashier and bookkeeper who are not involved in this proceeding. The elevator operators carry both passengers and freight in varying ratios between the several floors of the building. The watchmen pass through the building, closing windows, putting out lights, guarding against fires, etc. The engineer supervises the operation of the boilers, which produce steam used by some of the tenants in their manufacturing operations, the various pumps in the building, and the production of direct electric current which is used to light the building and is also used by two of the tenants; he also keeps the elevators in proper working order and takes care of the sprinkler tank. The firemen fire the boilers and occasionally supervise the running of the pumps when the engineer is called to another part of the building. The carpenter replaces sash chains, repairs the doors of the building and paints the common hallway, staircases, etc.

In general it may be said that the defendant through the above listed employees, heats the building, keeps it in repair, furnishes steam and direct electric current to those of its tenants who desire it, cleans those portions of the building which are not leased, and provides means of ingress and egress for its tenants, their employees, and for property being shipped to and by them. The defendant has no business, activities, or source of revenue other than those which are connected with its ownership and leasing of the building.

In United States v. Darby, the Supreme Court stated the objectives of the act. "As we have said the evils aimed at by the Act are the spread of substandard labor conditions through the use of the facilities of interstate commerce for competition by the goods so produced with those produced under the prescribed or better labor conditions; and the consequent dislocation of the commerce itself caused by the impairment or destruction of local businesses by competition made effective through interstate commerce." This epitomizes the declaration of policy contained in Sec. 2.

It is within the constitutional power of Congress to protect commerce against such dislocation. Specifically, Congress may exercise this power, either by excluding from interstate transportation goods produced under substandard conditions or by suppressing production of such goods, or by doing both. The second method of implementing its power is sustainable independently of the first. All this is expressly ruled in the opinion of the court.

The boundaries within which Congress may exercise its power to suppress production of condemned goods have not been precisely fixed by the Supreme Court. Congress itself has asserted the extent to which it proposes to exercise this power, by declaring in Sec. 3(j) of the Act that an "employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any * * * occupation necessary to the production thereof." Congress may exercise any of its powers to their full extent. Production is a term hardly easier to define precisely than commerce, but, granted the power to regulate or wholly suppress production for the purposes of the act, I do not think that Congress transgressed constitutional limitations in undertaking to deal with certain marginal activities so closely related with production that without regulating them there cannot be a plenary exercise of the power. This relationship is expressed in the phrase, "necessary to the production."

The activities of the employees involved in this case are, in my judgment, necessary to the production of the goods intended for interstate commerce manufactured by the tenants of the building, and I so find. The definition of "necessary" given by Chief Justice Marshall is fairly...

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