Brennan v. Wilson Building, Inc.

• Decision Date: 22 May 1973
• Docket Number: No. 71-1813.,71-1813.
• Citation: 478 F.2d 1090
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. The WILSON BUILDING, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 1090 (1973)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. The WILSON BUILDING, INC., Defendant-Appellant.

No. 71-1813.

United States Court of Appeals, Fifth Circuit.

April 27, 1973.

Rehearing Denied May 22, 1973.

R. F. Wheless, Jr., Cole Thomson, Houston, Tex., Charles L. Hale, Jr., Corpus Christi, Tex., for defendant-appellant.

M. J. Parmenter, Dept. of Labor, Dallas, Tex., Carin Clauss, Bessie Margolin, Asso. Sol., Bobbye Spears, Atty., U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and MOORE^* and RONEY, Circuit Judges.

MOORE, Circuit Judge:

In this appeal we are asked to decide whether certain building service employees of the appellant-employer are engaged in commerce for purposes of the Fair Labor Standards Act (FLSA)¹ and whether said employees are therefore covered by the Act's minimum wage and other provisions.

The action was brought by the Secretary of Labor pursuant to Section 17 of the Act² to enjoin appellant Wilson Building, Inc. ("the employer"), from violating the Act's minimum wage,³ overtime,⁴ and record-keeping⁵ requirements and to compel payment, with interest, of compensation owing to the employer's building maintenance personnel. The employer admits that it paid the named employees less than the prescribed federal minimum wage during the period in question (1967-70),⁶ that it failed to pay them the prescribed premium for overtime work, and that its bookkeeping records did not satisfy the Act's requirements. The employer, however, (1) denies that its payment and record-keeping practices were unlawful, arguing that it was not subject to the Act's requirements because it is a purely local business, and (2) urges that the district court erred in finding that the activities of the service employees engaged them in commerce for purposes of the FLSA. Concluding that appellant's elevator operators were engaged in commerce under 29 U.S.C. § 203(b),⁷ and that appellant was an "enterprise engaged in commerce" under 29 U.S.C. § 243(r)-(s)(1),⁸ the district court ruled that appellant had violated the Act and granted the relief sought by the Secretary. The district court's opinion is reported at 320 F.Supp. 664 (S.D.Tex. 1970). We affirm.

I.

The relevant facts are not in dispute. Appellant is a Texas corporation doing business in Corpus Christi. It has offices in that city at 1701 Wilson Tower Building which, together with the adjoining Wilson Building (also an office building), the Wilson Tower Garage, and two parking lots, appellant owns and operates for profit. The office buildings are occupied by a miscellany of tenants, including lawyers, doctors, accountants, geologists, oil companies, lease brokers, and others. The buildings and parking facilities are maintained by various of appellant's service employees, including (1) elevator operators, (2) maintenance employees (e. g., carpenters, mechanics, and plumbers) and (3) janitors and maids. The district court's findings as to each category of employees were as follows.

Elevator Operators.—Nine employees regularly operate the four elevators in the seventeen-story Wilson Tower Building. All four elevators transport passengers as well as persons delivering interstate mail, parcel post, and freight. Mail is delivered to the tenants twice daily, parcel post two or three times daily, and freight is delivered regularly each week to various tenants. The district court found that although the time devoted by the elevator operators to carrying postmen and freight deliverymen is small in comparison to the time devoted to the carrying of other passengers,⁹ "the interstate deliveries of mail, freight and parcel post to The Wilson Tower Building are sufficiently regular, frequent, and substantial in amount to constitute said elevator operators as being engaged in commerce; and the elevator operators are so closely related to the movement of commerce as to be a part of it." 320 F.Supp. at 666.

Maintenance Employees.—These employees remodel office space in appellant's two buildings and perform general carpentry and repair work for the benefit of tenants. The remodeling work is done at the request of tenants, pursuant to the rental agreement, subject to the approval of appellant. The lower court found that a substantial portion of the materials installed and supplies handled by the maintenance employees, such as the lumber used for wall paneling, doors, etc., is manufactured outside the state of Texas, 320 F.Supp. at 667. In addition, mechanics and plumbers maintain the air conditioning and heating systems in the buildings, and they, as do the other maintenance employees, handle replacement parts and goods which are manufactured out of state.

Janitors and Maids.—These employees perform custodial services for the benefit of tenants, as required by the rental agreement between tenants and appellant. Their work includes cleaning offices and hallways, stocking restrooms with soap, paper towels, and toilet paper, and replacing light bulbs and fluorescent lamps throughout the buildings. The district court found that a substantial quantity of the electrical and janitorial supplies handled by the janitors and maids is manufactured out of state.

As noted, the district court concluded that the elevator operators' transportation of mail, parcel post, and freight is regular, frequent, and substantial enough to render the operators "engaged in commerce" within the meaning of the Act, thus satisfying the requirement of Section 203(s) that appellant's enterprise have employees engaged in commerce. Regarding the maintenance employees, janitors, and maids, however, the court concluded that even though they handle products which have travelled interstate, they are not engaged in commerce because the products do not meet the Act's Section 203(i) definition of "goods".¹⁰ The court determined that "such materials when handled and worked on by appellant's employees are in the hands of the ultimate consumer," i. e., appellant, and that they therefore are out of the flow of commerce. 320 F.Supp. at 669. By virtue of the elevator operators' engagement in commerce, however, the court ruled that the other named employees are employed in an enterprise engaged in commerce and that they too are entitled to the benefits of the Act.

On appeal both appellant and the Secretary find fault with the district court's decision. Appellant argues that the court erred in finding that the elevator operators are engaged in commerce and in ruling that all the employees in question are covered by the Act's enterprise doctrine. The Secretary, while agreeing with the court's result, argues that the court erred by not ruling that the activities of the maintenance and janitorial employees provide independent grounds for sustaining enterprise coverage under the Act. Since we are of the opinion that the elevator operators are engaged in commerce within the meaning of Section 203(s) we need not, and do not, reach the question whether the activities of the other employees provide an independent ground for finding engagement in commerce; under the Act's enterprise doctrine¹¹ they are entitled to the benefits prescribed by the FLSA.

II.

We begin our analysis of the question whether appellant's elevator operators are engaged in commerce mindful of Mr. Justice Frankfurter's exhortation that the "search for a dependable touchstone by which to determine whether employees are `engaged in commerce or in the production of goods for commerce' is as rewarding as an attempt to square the circle." A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 520, 62 S. Ct. 1116, 1118, 86 L.Ed. 1638 (1942). In that case the Court, as it has in numerous cases since, recognized that application of the FLSA to an infinite number of industrial and commercial situations is essentially a line-drawing exercise, and that in delineating between areas of activities regulated by the Act and those left to state regulation, courts should be guided by the fixed points of national policy, legislative history, and administrative practicalities. 316 U.S. at 523, 62 S.Ct. 1116. Writing as we do thirty years after Kirschbaum, we are aided by a fourth guideboard—the long line of judicial decisions which have construed the outer reaches of the Act. We need not dwell on points which, by now, the cases have rendered irrefutable, although we do well to note at the outset the fundamental precepts that influence our reasoning in the present appeal. Thus, for example, it has been firmly established that the phrase "engaged in commerce" within the meaning of Section 203 of the FLSA is to be given a broad, liberal construction rather than a strained, technical one in order to effectuate the Act's purposes, Mitchell v. C. W. Vollmer & Co., Inc., 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196 (1955); Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 211, 79 S.Ct. 260, 3 L.Ed. 2d 243 (1959); Shultz v. Mack Farland & Sons Roofing Co., Inc., 413 F.2d 1296, 1300 (5th Cir. 1969); that the Act has a remedial and humanitarian purpose, Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 83 L.Ed. 949 (1944); Mitchell v. Ballenger Paving Co., Inc., 299 F.2d 297, 301 (5th Cir.), cert. denied, 370 U. S. 922, 82 S.Ct. 1565, 8 L.Ed.2d 503 (1962), which was designed to provide a minimum standard of living necessary for the health, efficiency, and general well-being of workers (29 U.S.C. § 202(a)), as well as to prescribe certain minimum standards for working conditions, Wirtz v. Ti Ti Peat Humus Co., Inc., 373 F.2d 209, 212 (4th Cir.), cert. denied, 389 U.S. 834, 88 S.Ct. 37, 19 L.Ed.2d 94 (1967); and that Congress intended the Act "to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce," Walling v. Jacksonville Paper Co., 317 U.S. 564, 567-568, 63 S.Ct. 332, 335,...