Engebretsen v. EJ Albrecht Co.

• Decision Date: 23 July 1945
• Docket Number: No. 8748.,8748.
• Parties: ENGEBRETSEN v. E. J. ALBRECHT CO.
• Court: U.S. Court of Appeals — Seventh Circuit

150 F.2d 602 (1945)

ENGEBRETSEN v. E. J. ALBRECHT CO.

No. 8748.

Circuit Court of Appeals, Seventh Circuit.

June 29, 1945.

As Amended on Denial of Rehearing July 23, 1945.

Paul G. Sullins, of Chicago, Ill., for appellant.

Hirsch E. Soble, of Chicago, Ill., for appellee.

Before EVANS, and MAJOR, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

Appellant presents two questions. They involve the construction and application of the Fair Labor Standards Act. They are (a) the soundness of the fact finding that appellant worked fifteen hours a day instead of the fifteen and a half hours he alleged, and (b) the correctness of the court's conclusion that appellant's employment did not fall within the scope of the Act.

The trial court found against plaintiff and dismissed his complaint at the close of plaintiff's evidence.

The Facts. Appellant worked as a watchman and janitor at appellee's place of business in Chicago. Appellee's business, briefly stated, was that of engineering and construction. It designed and built dams, etc., without the state of Illinois, as well as within. Appellant worked for appellee from October 24, 1938 to July 15, 1943. He makes no claim for overtime for the period from January 1, 1941 to the end of his employment, because he was paid for that period in accordance with the provisions of the statute. He received no overtime payment for the balance of the period.

Appellant says he began work at 4:30 P.M. and quit work at 8 A.M. Appellee claims he began work at 5 P.M. and that one-half hour was consumed in sleeping or at lunch. Appellant says he never slept on the premises, and he took only fifteen minutes for lunch. Appellant's tasks were — sweeping the ten room office building, dusting, cleaning up generally, answering phone calls, and also, he devoted about a half hour out of every two to inspection tours of the premises in his capacity as guardsman or watchman.

Appellant never complained that his pay check was short for the daily half hour. There was also dispute as to his wages for the month of December, 1940. He could not remember when time and a half for overtime payment began, although the check stubs indicated it was December rather than January. He was paid 30 cents an hour, and no payment for overtime for most of the period.

We are not justified in disturbing the trial court's finding that appellant worked 15 hours a day rather than 15½ hours for the period involved. The evidence was conflicting.

The sharply contested issue is over the applicability of the Fair Labor Standards Act to appellant. The controlling sections of the Act read, Title 29, U.S.C.A.

Sec. 206. "Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates — * * *."

Sec. 203(b): "`Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof."

Sec. 203(j): "* * * 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 process or occupation necessary to the production thereof, in any State * * *."

The trial court found that in the prosecution of its business, during the period between October 24, 1938 and January 1, 1941,

"* * * defendant moved its construction equipment from or to Chicago as follows: (a) some small tools and supplies were sent from Chicago to Johnstown in September, 1939; (b) some small tools were sent from Arkport to Chicago, but the time of shipment does not appear; (c) seven tractors, 2 cranes, and small tools were sent from Sardis to Chicago in or about November, 1939; (d) some small tools were sent from Stickney to Chicago during the life and at the completion of the Stickney job."

The court also found:

"7. Plaintiff was not employed or engaged in the production of goods for commerce, or in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof.

"8. Plaintiff was not employed or engaged in trade, commerce, transportation, transmission or communication among the several states or from any state to any place outside thereof."

It appeared from the record that

"* * * said place of business consisted of several offices, and also a repair shop and yard in which machinery used on different jobs was repaired and reconditioned. That said machinery consisted of construction machinery, such as steam shovels, graders, concrete mixers, cranes, etc., which was brought back to defendant's principal place of business in Chicago upon the completion of construction jobs in a state other than the State of Illinois, where it was repaired, over-hauled, and reconditioned, and which said machinery was thereafter transported to other states than the State of Illinois and used in the construction of viaducts on interstate high-ways and in the construction of dams and flood control work and in the straightening of rivers, as herebefore alleged. Also, in its yard defendant at all times maintained certain quantities of lumber, which was shipped from said yard outside the State of Illinois for use on certain of said construction jobs in other states."

Also that there were employees who worked in the day time, who repaired broken parts, "fixed up," cleaned, and oiled the machinery and the tools stored on the premises.

As to the nature of defendant's business, the trial court found:

"* * * defendant was engaged in the performance of certain construction jobs, i.e., one at Stickney, Illinois; a dam at Arkport, New York; the outlet works of a dam at Sardis, Mississippi; and a river improvement job at Johnstown, Pennsylvania. * * * There is no evidence that the rivers upon which said work was done were navigable, or that they extended between states, or that the work was done for the purposes of commerce, or that it was anything but purely local construction work."

Concluding that appellant "was not employed or engaged in commerce, or in the production of goods for commerce, within the meaning of the Fair Labor Standards Act of 1938," the District Court dismissed the suit. This appeal resulted.

If appellant was an employee whose work or employment came within Secs. 203(b) or 203(j) then he was entitled to one and a half pay for the overtime work, for which he did not receive one and a half payment.

Did plaintiff's work bring him within the provisions of Secs. 203(b) or 203(j)?

Specifically, we must construe and apply the clause "employee who is engaged in commerce or in the production of goods for commerce," or whose occupation is "necessary to the production thereof * * *."

It has been held that an employee who acts as a guard is engaged in the production of goods in commerce, if the employer is so engaged. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Southern Package Corporation, 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165. It has also been held that a messenger for a telegraph company in delivering telegraph messages is not an employee engaged in "the production of goods for commerce" within Section 12 of the Act. Western Union Telegraph Co. v. Lenroot, 323 U.S. 493, 65 S.Ct. 335, 338.

The Supreme Court had previously proceeded with relative unanimity in determining who were under and who were outside the protection of the Act. Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165; Walling v. Jacksonville Paper Co., 317 U. S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Higgins v. Carr Bros. Co., 317 U.S. 572, 63 S.Ct. 337, 87 L.Ed. 468; Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682.

The case of Western Union Telegraph Co. v. Lenroot, however, resulted in a sharp division of the Court. In the Circuit Court of Appeals an united court held (2 Cir., 141 F.2d 400) that a telegraph company messenger was within the protection of the Act. In other words, it held a telegraph company was engaged in commerce and in the production of goods for commerce. The majority of the Supreme Court (a 5 to 4 decision) reversed this holding. The acuteness of the difference is shown by the fact that both sides charged the other with reaching its conclusion "by a series of interpretations so far-fetched and forced as to bring into question the candor of Congress as well as the integrity of the interpretative process."

However sharply drawn the controversy and the closeness of the decision in said case, and regardless of any opinion which we may have entertained in the absence of such decision, we accept the conclusion reached by the majority as the law of that case. Yet, the character of the services rendered by a telegraph operator or messenger differs quite materially from the kind of service which was rendered by appellant herein. Likewise services of a telegraph company are substantially different from those which marked the activity of the appellee. Hence the Lenroot case furnishes light but does not control disposition of the instant case.

Under the plain language of the statute and under the decisions we are convinced that plaintiff was required to show: (a) that he was an employee, (b) his employer was engaged in the production of goods for commerce, and his was an occupation necessary to such production; or, that he was (a) an employee (b) who is engaged in commerce.

In reaching our conclusion we must look to the employee's activity rather than the employer's activity, so far as "engaged in commerce" determines liability. Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L. Ed. 656; McLeod v. Threlkeld, 319 U.S. 491, ...