Borella v. Borden Co.

• Decision Date: 07 December 1943
• Citation: 52 F. Supp. 952
• Parties: BORELLA et al. v. BORDEN CO.
• Court: U.S. District Court — Southern District of New York

52 F. Supp. 952

BORELLA et al. v. BORDEN CO.

District Court, S. D. New York.

December 7, 1943.

Newgass & Nayfack and Ralph H. Wiener, all of New York City (George W. Newgass, Nathan Cooper, and Leo H. Hirsch, Jr., all of New York City, of counsel), for plaintiffs.

Milbank, Tweed & Hope, Henry K. Greer, and John A. Kelly, all of New York City (John A. Kelly, of New York City, and George F. Keenan, of New York City, of counsel), for defendant.

CONGER, District Judge.

The plaintiffs bring this action, which was tried before the court without a jury, on their own behalf and on behalf of other employees of the defendant similarly situated. The action against the defendant is brought to recover overtime compensation and an equal amount as liquidated damages plus a reasonable attorney's fee pursuant to section 16 (b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216 (b).

Jurisdiction is conferred upon this court by virtue of Section 24 (8) of the Judicial Code, 28 U.S.C.A. § 41 (8).

There are no facts in dispute.

The defendant is a foreign corporation, organized under the laws of New Jersey, licensed to do business in this state and doing business in this district. It is the owner of a building located at 350 Madison Avenue, New York City, of which it occupies, in whole or in part, approximately seventeen of the twenty-four floors of the building in connection with the operation of its business. The head office of the defendant is located in this building, and the defendant occupies approximately 58% of the total rentable area of the building.

The plaintiffs are employed in connection with the operation and maintenance of the building as porters, watchmen, elevator operators, etc.

Plaintiffs contend that defendant is engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act. It bases this contention on two grounds. First: That defendant is engaged in the physical production of goods on the premises.

With respect to this claim, there are only two facts that merit attention. One is that ideas and rough drafts for labels, which are to be affixed to the products of the defendant and for advertising material for use throughout the country and abroad, emanate from this building.

The other is that the photostatic plant maintained by the defendant in the building is engaged in the production of goods and 5 per cent of its output is shipped across state lines.

I can't convince myself that either of these activities constitute "production of goods" as defined by the act.

These activities, however, may and should be considered in connection with the real question presented here, and that is whether the nature of the business carried on by the defendant at 350 Madison Avenue is such that plaintiffs may be said to be engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act. Defendant concedes that it is engaged in interstate commerce, but it denies that it is engaged in the production of goods at 350 Madison Avenue in New York City.

Defendant's business consists mainly in the sale and distribution of fluid, condensed and evaporated milk, case in, ice cream, butter, cheese and the products manufactured from milk. These products are processed, prepared or manufactured at factories and plants located throughout the United States and distributed from the plants and factories.

The actual production of goods for commerce is carried on in buildings separated entirely from 350 Madison Avenue.

The business of defendant is national and international.

At 350 Madison Avenue are the offices of the executives of the defendant, together with other employees (clerical), and the maintenance employees. It is the home office of the defendant and here are the various departments which direct and supervise the entire business of defendant.

In this building is the accounting department, with its various divisions; the sales division, the credit department, the traffic division, the legal department, the safety division; the Board of Directors hold their regular and special meetings here.

Notwithstanding all this, no goods, wares, products, commodities, merchandise or articles or subjects of commerce of any character or any part or ingredient thereof "* * * are produced, manufactured, handled or in any other manner...