Brennan v. Metropolitan Trash, Inc., No. 74-1200

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SETH, BARRETT and DOYLE; WILLIAM E. DOYLE
• Citation: 513 F.2d 1324
• Parties: 22 Wage & Hour Cas. (BN 100, 75 Lab.Cas. P 33,191 Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. METROPOLITAN TRASH, INC., a corporation, Defendant-Appellant.
• Docket Number: No. 74-1200
• Decision Date: 13 January 1975

Page 1324

513 F.2d 1324 22 Wage & Hour Cas. (BN 100, 75 Lab.Cas. P 33,191 Peter J. BRENNAN, Secretary of Labor, United States
Department of Labor, Plaintiff-Appellee,
v.
METROPOLITAN TRASH, INC., a corporation, Defendant-Appellant. No. 74-1200. United States Court of Appeals,
Tenth Circuit. Argued Nov. 14, 1974.
Decided Jan. 13, 1975.

Donald S. Shire and Melanie Franco Nussdorf, Attys., U. S. Dept. of Labor (William J. Kilberg, Sol. of Labor, Carin Ann Clauss, Associate Sol. and Tedrick A. Housh, Regional Sol., U. S. Dept. of Labor, on the brief), for plaintiff-appellee.

Robert G. Shepherd, Jr., Denver, Colo. (William Andrew Wilson, P. C., Denver, Colo., on the brief), for defendant-appellant.

Before SETH, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Metropolitan, the appellant, was adjudged by the district court to be liable under the Fair Labor Standards Act. ¹ Damages were not in issue. It was stipulated that the back wages amounted to $10,485 covering the period from January 8, 1971 through August 27, 1973, and that thereafter the sum of $79.44 accrued each week. The sole issue on this appeal is whether Metropolitan's activities are covered by the Act. To be more specific, the issue is whether Metropolitan is an enterprise which had employees engaged in commerce or in the production of goods for commerce. ²

Page 1325

The action arises under Section 207(a)(1) of the subject Act which prohibits a workweek longer than 40 hours unless the employee is paid time and one-half for the hours in excess of 40 hours.

Basically, Metropolitan is a local corporation which collects trash from the premises of its customers and disposes of it. Its president testified that more than one-half of the trash hauled by it is collected from commercial customers and that at least 95% of its income is derived from commercial customers. There was testimony of six of Metropolitan's customers at the trial who said that they were engaged in the production of goods for commerce. The trial court so found and concluded. We affirm.

Manufacturers which were shown to have been served by Metropolitan included the following:

(1) Benjamin Moore Co. paint manufacturer.

(2) Colorado Tanning & Fur Co. custom tanning company.

(3) ITT, Continental Baking Co. baking company.

(4) Cutler Hammer Co. manufacturer of equipment for the newspaper industry.

(5) Packaging Corporation of America manufacturer of paperboard.

(6) Skyline Corp. manufacturer of mobile homes.

Metropolitan has authority from the Colorado Public Utilities Commission to provide trash removal service. It is required to provide the service to all members of the public who desire its services (for a price, of course).

Ordinary refuse is hauled and disposed of by Metropolitan. This consists of paper, metal, bottles, pieces of metal, etc. Several types of containers are furnished by Metropolitan according to the particular needs of the customer. These containers remain the property of Metropolitan but are in the possession of the customer.

A further factual stipulation was that at least 80% of Metropolitan's equipment and repair items are manufactured in states other than Colorado.

The work performed by Metropolitan's employees is to a large degree ordinary labor. No special training is given and the containers are placed in a manner which serves the convenience of the Metropolitan employees so that they are seldom required to enter the customers' premises. The services are performed within the confines of Denver.

The trial court found that "two or three employees of defendant's regularly engage in removal of trash or rubbish on a basis intimately related to the production of goods for commerce" and thereby their activities are directly related to the goods for commerce in that their efforts are essential to such production. ³

It is apparent that the dispute presented is a legal one as to whether Metropolitan's services are closely related and directly essential to the production of goods for commerce.

Page 1326

It is to be recognized at the outset that the Fair Labor Standards Act does not utilize fully the powers granted by the commerce clause of the Constitution. Mitchell v. H. B. Zachry Co., 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753 (1960); Mitchell v. Lublen, McGaughy & Assoc., 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959); McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943); Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942). Thus, § 203(j) provides in part that "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.) We are, of course, concerned with the latter two clauses and, particularly, the final one in § 203(j) which says "or in any closely related process or occupation directly essential to the production thereof." It is agreed by Metropolitan that its employees regularly remove trash from the manufacturing facilities which are used for producing goods for commerce, and it is also conceded by Metropolitan that this activity is related and essential to their operation, so...