Fleming v. AB Kirschbaum Co., No. 798.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtKIRKPATRICK
Citation38 F. Supp. 204
PartiesFLEMING, Administrator of the Wage and Hour Division, United States Department of Labor, v. A. B. KIRSCHBAUM CO.
Docket NumberNo. 798.
Decision Date02 April 1941

38 F. Supp. 204

FLEMING, Administrator of the Wage and Hour Division, United States Department of Labor,
v.
A. B. KIRSCHBAUM CO.

No. 798.

District Court, E. D. Pennsylvania.

April 2, 1941.


38 F. Supp. 205

Ernest N. Votaw, of Philadelphia, Pa., Abner Brodie, of Newark, N. J., and Edward J. Fruchtman, of Washington, D. C., for plaintiff.

Sidney L. Krauss, Wm. Clarke Mason, Frederick H. Knight, and Martin P. Snyder, all of Philadelphia, Pa., for defendant.

KIRKPATRICK, District Judge.

This is an action under the Fair Labor Standards Act (Sec. 17) to enjoin certain violations of Secs. 6 and 7, 29 U.S.C.A. §§ 217, 206, 207. The defendant concedes that, as to certain of its employees, it has not complied with the requirements of these sections.

The constitutionality of the act having been established by the Supreme Court in United States v. Darby, February 3, 1941, 61 S.Ct. 451, 461, 85 L.Ed. ___, the only question to be decided is whether it is applicable to this defendant.

The defendant is the owner of a six-story loft building in Philadelphia, portions of which it leases to manufacturing concerns, mostly in the clothing business. The tenants are engaged in interstate commerce, but the defendant has no interest in the business of any of its tenants.

As part of the consideration for the rent, the defendant furnishes the services of three elevator operators, two watchmen, three firemen, an engineer, a carpenter and a carpenter's helper, and a porter or cleaner, all of whom are employed and paid by it. It also employs a cashier and bookkeeper who are not involved in this proceeding. The elevator operators carry both passengers and freight in varying ratios between the several floors of the building. The watchmen pass through the building, closing windows, putting out lights, guarding against fires, etc. The engineer supervises the operation of the boilers, which produce steam used by some of the tenants in their manufacturing operations, the various pumps in the building, and the production of direct electric current which is used to light the building and is also used by two of the tenants; he also keeps the elevators in proper working order and takes care of the sprinkler tank. The firemen fire the boilers and occasionally supervise the running of the pumps when the engineer is called to another part of the building. The carpenter replaces sash chains, repairs the doors of the building and paints the common hallway, staircases, etc.

In general it may be said that the defendant through the above listed employees, heats the building, keeps it in repair, furnishes steam and direct electric current to those of its tenants who desire it, cleans those portions of the building which are not leased, and provides means of ingress and egress for its tenants, their employees, and for property being shipped to and by them. The defendant has no business, activities, or source of revenue other than those which are connected with its ownership and leasing of the building.

In United States v. Darby, the Supreme Court stated the objectives of the act. "As we have said the evils aimed at by the Act are the spread of substandard labor conditions through the use of the facilities of interstate commerce for competition by the goods so produced with those produced under the prescribed or better labor conditions; and the consequent dislocation of the commerce itself caused by the impairment or destruction of local businesses by competition made effective through interstate commerce." This epitomizes the declaration of policy contained in Sec. 2.

It is within the constitutional power of Congress to protect...

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16 practice notes
  • Missel v. Overnight Motor Transp. Co., No. 4867.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Enero 1942
    ...Gonzalez, 1 Cir., 117 F.2d 11, 16; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52, 56; Fleming v. A. B. Kirschbaum Co., D.C., 38 F.Supp. 204, 206. Only in this way can the coordination of our economic life and the elimination of unfair differentials in labor conditions be effectiv......
  • Kirschbaum v. Walling Arsenal Bldg Corporation v. Same, Nos. 910
    • United States
    • United States Supreme Court
    • 1 Junio 1942
    ...wages at lower rates than those fixed by the Act. In No. 910, the District Court granted an injunction, Fleming v. A. B. Kirschbaum Co., 38 F.Supp. 204, and the Circuit Court of Appeals for the Third Circuit affirmed. 124 F.2d 567. In No. 924, the District Court denied an injunction, Flemin......
  • Murphy v. Georgia Aero-Tech., No. Civil 214.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • 5 Mayo 1943
    ...54 Stat. 399, 40 U.S.C.A. § 276a. 10 See Wood v. Central Sand & Gravel Co., D.C., 33 F.Supp. 40, 47; Fleming v. A. B. Kirschbaum, 38 F.Supp. 204; Id., 3 Cir., 124 F.2d 567; Id., 316 U.S. 517, at page 526, 62 S.Ct. 1116, 86 L.Ed. 1638; Stucker v. Roselle, D.C., 37 F. Supp. 864, 867; Muld......
  • BUILDING SERVICE EMPLOYEES, ETC. v. Trenton Trust Co., Civ. 2656.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 8 Diciembre 1943
    ...However, the defendant does not admit that it is engaged in interstate commerce. The cases of Fleming v. A. B. Kirschbaum Co., D.C., 38 F.Supp. 204, affirmed 3 Cir., 124 F.2d 567, and Fleming v. Arsenal Bldg. Corporation, D.C., 38 F.Supp. 207, reversed 2 Cir., 125 F.2d 278, both cases affir......
  • Request a trial to view additional results
16 cases
  • Missel v. Overnight Motor Transp. Co., No. 4867.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Enero 1942
    ...Gonzalez, 1 Cir., 117 F.2d 11, 16; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52, 56; Fleming v. A. B. Kirschbaum Co., D.C., 38 F.Supp. 204, 206. Only in this way can the coordination of our economic life and the elimination of unfair differentials in labor conditions be effectiv......
  • Kirschbaum v. Walling Arsenal Bldg Corporation v. Same, Nos. 910
    • United States
    • United States Supreme Court
    • 1 Junio 1942
    ...wages at lower rates than those fixed by the Act. In No. 910, the District Court granted an injunction, Fleming v. A. B. Kirschbaum Co., 38 F.Supp. 204, and the Circuit Court of Appeals for the Third Circuit affirmed. 124 F.2d 567. In No. 924, the District Court denied an injunction, Flemin......
  • Murphy v. Georgia Aero-Tech., No. Civil 214.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • 5 Mayo 1943
    ...54 Stat. 399, 40 U.S.C.A. § 276a. 10 See Wood v. Central Sand & Gravel Co., D.C., 33 F.Supp. 40, 47; Fleming v. A. B. Kirschbaum, 38 F.Supp. 204; Id., 3 Cir., 124 F.2d 567; Id., 316 U.S. 517, at page 526, 62 S.Ct. 1116, 86 L.Ed. 1638; Stucker v. Roselle, D.C., 37 F. Supp. 864, 867; Muld......
  • BUILDING SERVICE EMPLOYEES, ETC. v. Trenton Trust Co., Civ. 2656.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 8 Diciembre 1943
    ...However, the defendant does not admit that it is engaged in interstate commerce. The cases of Fleming v. A. B. Kirschbaum Co., D.C., 38 F.Supp. 204, affirmed 3 Cir., 124 F.2d 567, and Fleming v. Arsenal Bldg. Corporation, D.C., 38 F.Supp. 207, reversed 2 Cir., 125 F.2d 278, both cases affir......
  • Request a trial to view additional results

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