Fleming v. Arsenal Bldg. Corporation, No. 87.
Court | U.S. Court of Appeals — Second Circuit |
Writing for the Court | L. HAND, C. E. CLARK, and FRANK, Circuit |
Citation | 125 F.2d 278 |
Parties | FLEMING v. ARSENAL BLDG. CORPORATION et al. |
Docket Number | No. 87. |
Decision Date | 30 December 1941 |
125 F.2d 278 (1941)
FLEMING
v.
ARSENAL BLDG. CORPORATION et al.
No. 87.
Circuit Court of Appeals, Second Circuit.
December 30, 1941.
Irving J. Levy, of Washington, D. C., for appellant.
Walter Gordon Merritt, of New York City, for appellees.
Before L. HAND, C. E. CLARK, and FRANK, Circuit Judges.
L. HAND, Circuit Judge.
The plaintiff appeals from a judgment, dismissing after trial his complaint against the defendants — filed under § 17 of the "Fair Labor Standards Act of 1938" — to restrain violation of § 15(a) (2) of that act 29 U.S.C.A. §§ 217, 215(a) (2). The only question is whether § 7(a) 29 U.S.C.A. § 207(a) requires the defendants to pay "time and a half" to their employees. (We may ignore the defendant, Spear & Co., Inc., for any decision as to it must concededly follow that as to the Arsenal Building Corporation, of which we shall speak as the defendant.) The facts are as follows. The defendant owns a twenty-two story loft building in New York City, of which it lets out substantially all the space to manufacturers of women's clothes,
We think that the employees here in question are "engaged * * * in the production of goods for commerce" within § 7(a), and for that reason we do not find it necessary to decide whether they are also "engaged in commerce." First, are they engaged in the production of goods at all? Section 3(j), 29 U.S.C.A. § 203(j), defines that phrase as meaning, "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." Whatever may be thought of the applicability of this definition down to the last clause, we are satisfied that the "occupation" of these men was "necessary to the production" of the clothes. If instead of leasing space in the defendant's building, the manufacturers had each owned and occupied a whole factory of his own, this conclusion seems to us scarcely debatable. Cutters and stitchers cannot work in a cold or filthy building; they must have light and power to drive their machines; they cannot be required to carry goods from one story to another. Those who make and keep the factory fit for them in these ways are as "necessary" to "production" as they are themselves.1 Yet it would as much defeat the purpose of the act, as expressed in § 2, 29 U.S.C.A. § 202, to deprive such workmen of its protection when they chance to be employed by a different employer, as when they are employed by the employer of the cutters and stitchers. And a competing dressmaker may find his rival's lower rent as "unfair" a differential...
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