Addison v. Commercial Nat. Bank in Shreveport

• Decision Date: 31 March 1947
• Docket Number: Civil Action No. 1974.
• Citation: 70 F. Supp. 619
• Parties: ADDISON v. COMMERCIAL NAT. BANK IN SHREVEPORT.
• Court: U.S. District Court — Western District of Louisiana

70 F. Supp. 619

ADDISON v. COMMERCIAL NAT. BANK IN SHREVEPORT.

Civil Action No. 1974.

District Court, W. D. Louisiana, Shreveport Division.

March 31, 1947.

Robert J. Newson, of Shreveport, La., for plaintiff.

Cook, Clark & Egan, by C. D. Egan, all of Shreveport, La., for defendant.

DAWKINS, District Judge.

Plaintiff sues for overtime, liquidated damages and penalties under the Fair Labor Standards Act, 29 U.S.C.A. §§ 206, 207 et seq. He alleges that defendant operated a national bank in a building owned by it, and that "practically all of the remaining space," more than fifty per cent, "is occupied by concerns engaged in interstate commerce"; that his duties required him to assist "in the maintenance of said building and banking house, and in inspecting every door and lock in said building, including said banking house every night * * *"; that the period of his employment was from December 17, 1945, to April 1, 1946, at the rate of $120 per month, and from April 1 to July 8, 1946, at the rate of $124 per month, and that he worked twelve and one-half (12½) hours overtime each week during the entire period. His claim is for one and one half times the hourly rates above forty hours per week for both periods, or a total of $615.10, and a like amount as liquidated damages, together with $500 as attorneys' fees, or a grand total of $1730.20.

Defendant admits the employment and ownership of the building, but denies that plaintiff was covered by the provisions of the Act. It also averred that plaintiff, at his own request, was given two jobs which had previously been held by two persons at $60 per month for the first period above, and $62 for the second period from April 1st to July 8, 1946.

The facts are not in serious dispute, except as to the averment of defendant that plaintiff was holding two jobs at his own request. His duties were those of a night janitor or clean-up man, and operator of an elevator, for which he received wages as alleged in the complaint. According to his own testimony, he came on duty at 6:30 P.M. and quit about 7:00 A.M., Mondays through Fridays; Saturdays from 6:00 P. M. to 7:00 A.M., and Sundays, 5:00 P.M. to 7:00 A.M. The elevator was operated until midnight, for the few persons who had occasion to go into the building after the usual office hours, from the time he took over in the evening, and after that time, that is, midnight, if anyone happened to be in the building and wished to leave he let them out. The building was closed to entrance from the outside at twelve midnight.

After locking the front door at that hour, plaintiff went to the top of the building of some fifteen stories and proceeded downward "checking every door at each office, and going in and turning off the lights" when they were left burning. When he got to the bottom, he checked upon the stairways and cleaned them and then went into the bank, checking the bank doors, back and front, to see if any had been left open, turned out lights found burning, and mopped the lobby of the bank and stairways to the mezzanine floor, as well as those into the basement. He also mopped the four elevators and swept the sidewalk around the building. Early in the morning, he opened up the doors to let the maids in to get the offices ready for the tenants. He then went back to the fifteenth floor and came down, turning on the hall lights on all floors and opening up the fire escapes, toilet doors of the building, etc. He had nothing to do in the bank itself except to let the maids in to do the cleaning.

The bank occupied the first floor and basement, mezzanine and most of the second floor. It also retained regularly the services of a private detective agency to guard the banking quarters. The building had several tenants, who, like the Gulf Refining Company, were engaged in the oil business in more than one state, but did not carry on any of their manufacturing operations therein, although they kept offices for executives, accounting clerical help, etc. therein. The Gulf also operated a telegraph system, receiving and sending messages to its plants and offices in other states.

Prior to plaintiff's employment, the work which he performed had been done by two persons, an elevator operator and a cleaner, who also checked lights, doors, etc., each of whom was paid $60, but the plaintiff asked that he be permitted to do the work of both in order that he might earn sufficient for a living.

The question presented is, was the plaintiff engaged in the production of goods for commerce, and if not, was he engaged in commerce, or the performance of duties so closely related thereto, as to be for practical purposes a part of Interstate Commerce?

Plaintiff has cited a number of cases in support of his contention, in which duties similar to those involved here, were performed, and in which it was held that the persons so employed, were covered by the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The first case is that of Baldwin v. Emigrant Industrial Savings Bank, 2 Cir., 150 F.2d 524, 525. There the plaintiffs were operators of both passenger and freight elevators, porters, watchmen and firemen. The District Court found that a substantial number of tenants in the building occupied offices, storerooms, showrooms for taking orders for goods manufactured elsewhere, which were sold to customers, both within and without the state, and were thus engaged in interstate commerce. The Court said: "But this does not mean that the plaintiffs, too, are engaged in interstate commerce, for their activities are not `actually in or so closely related to the movement of the commerce as to be a part of it'." citing authorities. Thus the contention that the plaintiffs were themselves engaged in interstate commerce was eliminated, and the Court turned to the second proposition as to whether they were engaged in the production of goods for commerce. Reference was made by the Court of Appeals in that case to the fact that in Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L. Ed. 1638, the Supreme Court had held that "service employees of a building occupied by tenants engaged in manufacturing are in an occupation necessary to the production of goods for commerce, and therefore within the coverage of the Act." Reference was also made by the Court in the Baldwin case to the holding of the Second Circuit in Callus v. 10 East Fortieth Street Bldg., Inc., 2 Cir., 146 F.2d 438, in which it had been found that more than twenty per cent of the rental space in the building "was devoted largely to miscellaneous offices of manufacturers," and for that reason, it was decided that the statute applied, but the Supreme Court had reversed that decision on the ground that "renting of office space used for the carrying on of ordinary office activities `is local business and makes the employees of such a building engaged in local business'." 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, 161 A.L.R. 1263. The Court then concluded that the issues turned on the proposition as to whether the tenants were actually engaged in manufacturing in the building itself, as distinguished from the maintenance of offices, and stated its interpretation of the decision by the Supreme Court with conclusions as follows:

"The line it drew appears to be that maintenance employees of a building such as the one here involved are covered by the Act only if a substantial amount of the rentable area is devoted to the actual physical production on the premises of goods for interstate commerce. What proportion of the total rentable area would be considered a substantial amount is not stated in express terms. The dissenting Justices did refer to the Administrator's standard, saying, however, that whether 20 per cent occupancy was a reasonable minimum was not in issue, since the 32.5 per cent occupancy for production was clearly so substantial as to remove any doubt. There seems to us, therefore, no reason to withdraw our approval of the Administrator's conclusion; but as we shall see, here, too, considerably more than 20 per cent of the building is occupied for activities necessary to the production of goods for commerce." (Emphasis by the writer of this opinion.)

The next case relied upon by plaintiff is that of Bozant v. Bank of New York, 2 Cir., 156 F.2d 787, 789, in which the opinion was written by Circuit Judge Learned Hand. The demand was also for overtime under Sec. 16(b) of the Fair Labor Standards Act of 1938, Sec. 216(b), Tit. 29 U.S. C.A., and had been dismissed on a motion for summary judgment. It alleged that the plaintiffs, twenty-two in number, were "maintenance" or "service" employees, who took care of the building owned by the defendant. The matter was heard in the lower court on affidavits. The Court of Appeals found, from proofs, that the "bank itself occupied fifty per cent of the rental space in the building, and leases the remainder to other tenants. Of these, about sixteen per cent are firms doing a banking business, which may be taken as the same as that of the bank; six per cent are brokers; and about twenty per cent are lawyers." The Court then proceeded as follows:

"In deciding that issue we must take against the defendant every question as to which there is the least doubt, for the appeal is from a summary judgment. Some of the activities which went on, we agree should on no theory be counted. A lawyer who in the course of his practice writes letters, or draws deeds or wills, or prepares briefs and records, is not on that account within § 203(j); and the same is true of the correspondence of a broker and of a banker. The definition of `goods' in § 203(j) might literally go so far even as that; but it would be unreasonable to the last degree to suppose that Congress meant to cover such incidents of a business whose purpose did not comprise the production of `goods' at all. Indeed, were it otherwise, the Act would sweep into its maw every business, however local,...