Batts v. Professional Building, Inc.

• Decision Date: 21 November 1967
• Docket Number: Civ. A. No. 2348.
• Citation: 276 F. Supp. 356
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Lorenzo BATTS, Louise Davis and Mary McDade, Plaintiffs, v. PROFESSIONAL BUILDING, INC., a corporation, Defendant.

276 F. Supp. 356

Lorenzo BATTS, Louise Davis and Mary McDade, Plaintiffs, v. PROFESSIONAL BUILDING, INC., a corporation, Defendant.

Civ. A. No. 2348.

United States District Court S. D. West Virginia, Huntington Division.

November 21, 1967.

A. M. Foose, Huntington, W. Va., for plaintiffs.

James R. Bailes, Campbell, McNeer, Woods, Bagley & Emerson, Huntington, W. Va., for defendant.

CHRISTIE, District Judge:

This is a suit for recovery of minimum wages and liquidated damages under the Fair Labor Standards Act, 29 U.S.C.A. Section 201 et seq. Plaintiffs are employees of defendant, Professional Building, Inc., an office building tenanted by various professional and commercial offices. Lorenzo Batts is employed as a janitor and Louise Davis and Mary McDade are employed as elevator operators in the building. We are presently concerned with defendant's motion for summary judgment, which alleges, on the basis of the pleadings, a stipulation filed herein, and the affidavits submitted by the parties, that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.

I FACTUAL BACKGROUND

The facts culminating in the present dispute may be summarized as follows:

The Professional Building is a six-story office building located in Huntington, West Virginia. Space in this building is rented to members of the medical profession and persons in closely related professions and businesses. At present, and during the time relevant to this proceeding, the Professional Building was tenanted by eleven doctors and dentists, a medical laboratory technician, and two commercial establishments. One of the commercial establishments, Jahnig Manufacturing Company, Inc., manufactures orthopedic and prosthetic appliances. The articles manufactured and sold by Jahnig, including braces, artificial limbs and corrective shoes, are normally made to fit the needs of each individual patient and must be fitted prior to sale. As a consequence of this procedure, the bulk of Jahnig's sales are made to purchasers within the State of West Virginia. Sales to out-of-state purchasers normally account for less than 3% of Jahnig's total sales. The remaining commercial establishment, the Huntington branch of L. D. Caulk Company, is a retailer of dental supplies and equipment. L. D. Caulk Company is a Delaware corporation duly qualified to do business in the State of West Virginia. Goods are neither manufactured nor produced by this company at its offices in the Professional Building. Dental supplies and equipment, ranging from dental chairs to gauze, are sold directly to dentists and dental laboratories. The offices of both Jahnig and L. D. Caulk Company are located on the first floor of the office building.

Lorenzo Batts, in his capacity as janitor, is responsible for cleaning the building lobby and stairwell and the first floor offices which include the offices and storerooms of Jahnig and L. D. Caulk Company. In addition to these duties, he is responsible for certain light maintenance work, such as replacing light bulbs, installing toilet paper and paper towels, et cetera. The Professional Building is equipped with a single elevator. Louise Davis and Mary McDade are employed on alternate shifts to operate this elevator during business hours. The elevator operator working the latest shift is responsible for closing and locking the building.

In addition to their regular duties as janitor and elevator operators, respectively, plaintiffs allege that they regularly accept registered letters, special delivery letters, and parcel post packages addressed to tenants in the building, receipt therefor and deliver same to the tenants. Packages delivered to the building by commercial carrier are also allegedly handled in this same manner. A dispute exists concerning whether or not these services are regularly provided by the plaintiffs to the building tenants.

II COVERAGE UNDER THE FAIR LABOR STANDARDS ACT

Under Section 6 of the Act, 29 U.S.C.A. Section 206, an employer must pay prescribed minimum wages "to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce * * *." Section 3(b), 29 U.S.C.A. § 203(b), defines commerce as "trade, commerce, transportation, transmission, or communication among the several States * *" and section 3(j), 29 U.S.C.A. § 203(j), provides that

"`Produced' means produced * * or in any other manner worked on * * * and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State." (Emphasis added.)

In adopting the phrase "engaged in commerce or in the production of goods for commerce" rather than "engaged in commerce in any industry affecting commerce," Congress chose to exercise only part of its constitutional power over commerce, "leaving to the States activities which, if isolated, are only local." Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942). Thus, in the absence of any "constitutional criteria" or preliminary administrative judgments such as provided under the National Labor Relations Act, the courts must assume the responsibility of construing the general terms of the Act in determining whether particular situations fall within or without the regulated area. Such responsibility requires the "drawing of lines" which in borderline cases sometimes appear arbitrary, but which nevertheless must be drawn on the basis of the larger considerations of national policy, legislative history, and administrative practicalities as well as the particular facts of each individual case. 10 East 40th Street Building, Inc. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945).

(A) Engaged in Commerce: In resolving questions of coverage under the Fair Labor Standards Act, it is the activities of the employee rather than those of the employer which are decisive. Thus, although the employer's establishment might be described as "purely local," if in the course of his employment the employee of necessity engages in commerce or in the production of goods for commerce, his eligibility for coverage under the Act is thereby established. Kirschbaum Co. v. Walling, supra.

The standards by which it is determined whether or not an individual is engaged in commerce are "obviously more exacting than the test of whether his occupation is necessary to production for commerce." Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944). As propounded by the courts, the test is said to be "whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity." Mitchell v. Lublin, McGaughy & Associates, 358 U. S. 207, 212, 79 S.Ct. 260, 264, 3 L.Ed.2d 243 (1959); Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L. Ed. 1196 (1955). Plaintiffs rely upon their activities with respect to the delivery of packages and mail to the various tenants in support of their claim that they are "engaged in commerce" as that term is used in the Act. Mr. Justice Douglas has remarked in the case of Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460 (1942), that in passing the Fair Labor Standards Act Congress clearly intended "to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce." (Emphasis added.) An examination of the cases reveals that the courts have been more than willing to accommodate this objective. Thus, where porters employed in an office building accepted, on behalf of the tenants, freight and express shipments (a substantial part having moved in interstate commerce) and carried them to their respective offices, the Court, in Wirtz v. Columbian Mutual Life Insurance Company, 246 F.Supp. 198 (W.D. Tenn.1965), held that as a result of such activities the porters were engaged in commerce and, therefore, entitled to the benefits of the Fair Labor Standards Act. Other courts in similar situations have concluded that activities such as those engaged in by the porters in Wirtz v. Columbian Mutual Life Insurance Company, supra, qualify as being "in commerce" within the meaning of the Act. Sucrs. De A. Mayol & Co., Inc. v. Mitchell, 280 F.2d 477 (1960); Wirtz v. Cannarella, 233 F.Supp. 572 (E.D.S.C. 1964); Mitchell v. Royal Baking Company, 219 F.2d 532 (5th Cir. 1955); McComb v. Herlihy, 161 F.2d 568 (4th Cir. 1947). Although the courts have responded favorably to the suggestion that employees accepting and moving freight and express shipments are in fact engaged in commerce, nevertheless, such a finding does not necessarily follow from the mere fact that an employee has on occasion engaged in such activity. The activity of the employee that brings him within the protection of the Act must be more than sporadic or isolated instances of conduct which might otherwise be considered in commerce under the decisions of the aforementioned cases. Stated more positively, "the work of an employee in interstate commerce must be substantial in order to entitle him to the protection of the statute." Wirtz v. Cannarella, supra, 233 F.Supp. at 573-574; Crook v. Bryant, 265 F.2d 541 (4th Cir. 1959).

It is in the light of this requirement of "substantial" work that we must now examine the activities which plaintiffs allege bring them within the requirements of the Act. Plaintiffs allege that they receive packages and mail and deliver them to the tenants in the building "about every day of the week." In addition, plaintiffs allege that they aid in transporting other articles such as X-ray developer solutions and...