Bozant v. Bank of New York, 281

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: L. HAND, SWAN, and CHASE, Circuit
• Citation: 156 F.2d 787
• Parties: BOZANT et al. v. BANK OF NEW YORK.
• Docket Number: Docket 20199.,No. 281,281
• Decision Date: 08 July 1946

156 F.2d 787 (1946)

BOZANT et al. v. BANK OF NEW YORK.

No. 281, Docket 20199.

Circuit Court of Appeals, Second Circuit.

July 8, 1946.

Harry Rodwin, Goldwater & Flynn, and Minna F. Kassner, all of New York City (James L. Goldwater, of New York City, of counsel), for appellants.

Harold H. Levin and Reeves, Todd, Ely & Beaty, all of New York City (Joseph M. Proskauer and David Cohen, both of New York City, of counsel), for appellee.

William S. Tyson, Sol., and Bessie Margolin, Asst. Sol., both of Washington D. C., Irving Rozen, Regional Atty., of New York City, and Morton Liftin and Eugene Green, Attys., U. S. Department of Labor, both of Washington, D. C., for Admr., Wage and Hour Div., U. S. Department of Labor, as amicus curiae.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiffs appeal from a judgment, summarily dismissing their complaint in an action for overtime, under § 16(b) of the Fair Labor Standards Act of 1938, § 216(b) of Title 29, U.S.C.A. They are twenty-two "maintenance" or "service" employees, who took care of a building, owned by the defendant at 48 Wall Street, New York City; and the only question involved is whether they are within the Act. The defendant moved for summary judgment upon affidavits of the superintendent of the building, of its comptroller, and several of the tenants. The plaintiffs answered by affidavits; and the following facts appeared. The bank itself occupies fifty per cent of the rentable 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 substantial question is whether the defendant and the other banking firms are engaged in the "production of goods for commerce," under § 203(j) of Title 29. The plaintiffs do not assert that any ordinary chattels are manufactured, produced or handled in the building; and the only articles which can fall within the definition of "goods" under § 203(i) are stocks, bonds, commercial paper of all sorts, letters, legal documents, advertising pamphlets, papers and records and the like. Occasionally, the Bank "multigraphs" a letter for its customers, and runs off a hundred copies, some of which it sends out of the state; also it prepares and sends out bulletins, and at times brochures, announcements, pamphlets, and the like. In addition to these activities, to an undisclosed extent it prepares and works upon certificates of stocks, bonds and other securities; and it prepares cheques, notes, drafts, and other commercial paper of all kinds. Finally, it endorses, stamps, wraps in bulk, and ships outside the state, many millions of dollars worth of stocks, bonds and other securities. The Judge concluded that no manufacturing, production or handling of "goods for commerce" went on in the building; and that therefore the bank was not engaged in "the production of goods for commerce" under § 203(j); and it followed that the plaintiffs, as "maintenance" or "service" employees, were not engaged in an "occupation necessary to the production thereof."

On June 11, 1945, the Supreme Court decided two cases, in general outline similar to the case at bar: 10 East 40th Street Building, Inc. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, and Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865. Each concerned a large office building in the City of New York, occupied by many tenants. In the first the owner of the building carried on no business of its own; in the second the owner, the Borden Company, occupied more than half the space for its executive offices. Each case had come up from us and we had held the "maintenance" employees of each to be within the Act; the Supreme Court disagreed as to the first case, but agreed as to the second; the change being due to a shift in the votes of Douglas Frankfurter and Jackson, JJ. In 10 East 40th Street Building, Inc. v. Callus, supra, many of the tenants were executives of companies which were engaged in the "production of goods for commerce," whose relation to production was therefore the same as was that of those executives of the Borden Company who occupied the Borden Building. On the other hand some of the tenants in the 40th Street building were only sales agents, or in other relations incidental to the production of goods; and these we had counted with executives. However, we do not find in the prevailing opinion any reliance upon a difference between executives and other agencies; the decisive distinction was that the Borden Company owned the building and itself made use of it as part of its production of goods for commerce: i. e. milk. This appears in the following passage (325 U.S. at pages 583, 584, 65 S.Ct. at page 1230, 89 L.Ed. 1306): "an office building exclusively devoted to the purpose of housing all the usual miscellany of offices has many differences in the practical affairs of life from a manufacturing building, or the office building of a manufacturer." The court also distinguished the situation before it from A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, because no actual physical manufacture went on in the 40th Street building; and in Baldwin v. Emigrant Industrial Savings Bank, 2 Cir., 150 F.2d 524, we regarded that as the basis for a reconciliation of the two decisions. Therefore, in the case at bar, if the Bank does produce "goods" within the building, as we shall show that it does, both A. B. Kirschbaum Co. v. Walling, supra, and Borden Co. v. Borella, supra, support the plaintiffs' claims: with the proviso, of course, that the proportion of "goods" produced in the building is enough to color the activities of the employees as a whole.

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...