Johnson v. Dallas Downtown Development Co., 10432.

• Decision Date: 10 December 1942
• Docket Number: No. 10432.,10432.
• Citation: Johnson v. Dallas Downtown Development Co., 132 F.2d 287 (5th Cir. 1942)
• Parties: JOHNSON et al. v. DALLAS DOWNTOWN DEVELOPMENT CO.
• Court: U.S. Court of Appeals — Fifth Circuit

132 F.2d 287 (1942)

JOHNSON et al. v. DALLAS DOWNTOWN DEVELOPMENT CO.

No. 10432.

Circuit Court of Appeals, Fifth Circuit.

December 10, 1942.

Chas. S. McCombs and Wm. Andress, Jr., both of Dallas, Tex., for appellants.

William Lipscomb, of Dallas, Tex., for appellee.

Irving J. Levy, Acting Sol., U. S. Dept. of Labor, and Mortimer B. Wolf, Asst. Sol., U. S. Dept. of Labor, both of Washington, D. C., and Llewellyn B. Duke, Regional Atty., U. S. Dept. of Labor, of Dallas, Tex., amici curiae.

Before SIBLEY and HUTCHESON, Circuit Judges, and KENNERLY, District Judge.

KENNERLY, District Judge.

Appellee is a Texas Corporation which owns and operates an office building in Dallas, Texas. Offices in the building were rented or leased by Appellee to numerous tenants. The thirteen Appellants are negro employees of Appellee, six being elevator operators and seven being porters or janitors. All are employed in Appellee's building. Alleging that since two years prior to the filing of this suit, they have been required by Appellee to work more than the maximum hours permitted, and have been paid less than the minimum wages fixed, by the Fair Labor Standards Act of 1938, Sections 201 to 219, Title 29 U.S.C.A., 52 Stat. 1060, Appellants brought this suit in the lower Court against Appellee under Section 16(b) of the Act, for wages, damages, and attorney's fees. The trial resulted in Judgment for Appellee, and Appellants are here, complaining of such Judgment.

Appellants say that under the facts, they are entitled to recover under both Section 6(a) and Section 7(a) of the Act, which fix a minimum wage and maximum hours of labor for employees "engaged in commerce" or "in the production of goods for commerce".¹

The facts are that six of the Appellants operated the elevators which carried the tenants, their employees, visitors, customers, etc. up and down to the various floors of the building, and seven Appellants cleaned and kept fit for use and occupancy the halls, lobbies, toilets, etc. and the offices of the tenants.²

Appellee's only business was owning and operating the building, Appellants were employed only in the building, and neither Appellee nor Appellants were engaged either in or about the building or elsewhere in the production of goods of any kind or character. Many of Appellee's tenants were engaged in intrastate commerce, but a substantial number of them were engaged, wholly or in part, in some type of interstate business or "in commerce" within the meaning of the Act. None of such tenants nor other persons were engaged in the production of goods of any kind or character in or about the building. None of Appellee's tenants were engaged in the production of goods elsewhere, but some of them were agents for concerns so engaged — not in or about the building but generally outside of Texas.

So that whether we look alone to the wording of Sections 6(a) and 7(a) respecting the "production of goods for commerce" or the definition of "produced" found in Section 3(j) of the Act,³ it is perfectly clear that neither Appellants nor any person with whom Appellants had any sort of contact or sustained any kind of relation was engaged in or about the building in the production of goods for commerce within the meaning of the Act.

Appellants apparently rely upon Arsenal Building Corporation and Kirschbaum v. Walling (two cases), 316 U.S. 517, 62 S.Ct. 1116, 1118, 86 L.Ed. 1638. There, some of the employees were, as here, elevator operators, porters, and janitors in the employ of owners and operators of large buildings, but there the tenants of both buildings were principally engaged in the production of goods for commerce, and some of the employees in some instances handled some of the goods so produced.⁴ It is perfectly plain that Appellants' case is not helped by that case.

But while neither Appellants, nor Appellee, nor Appellee's tenants were engaged in the production of goods for commerce in or about the building, a substantial number of Appellee's tenants were, as stated, "engaged in commerce" within the meaning of the Act. And Appellants who were the elevator operators say that, under the facts here, it follows that they were also so engaged, and that they were within the coverage of the Act. A similar claim is made by the Appellants who were porters and janitors.

While the provisions of the Act (Sections 6 and 7) with respect to "the production of goods for commerce" have, because of the liberal definition of production found in the Act (Section 3(j), been given a broad construction (United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L. Ed. 609, 132 A.L.R. 1430; Arsenal Building Corporation and Kirschbaum v. Walling, supra; Warren-Bradshaw Drilling Company v. Hall, 63 S.Ct. 125, 87 L.Ed. ___, decided November 9, 1942; and other similar cases), we do not think that Congress intended that the Act with respect to those who are only "engaged in commerce" should be stretched and strained to cover every person whose labor is of use or convenience or whose labor in some fashion contributes to the comfort or convenience of one who is so engaged. Overstreet v. North Shore Corporation, 5 Cir., 128 F.2d 450. Clearly, Congress intended the coverage of the Act to stop somewhere, and the line bounding coverage must be drawn somewhere.

In the Arsenal Building-Kirschbaum cases, supra, it is said by the Supreme Court: "`There is thus no point in the instant case in a demand for the drawing of a mathematical line. And what is reasonably clear in a particular application is not to be overborne by the simple and familiar dialectic of suggesting doubtful and extreme cases.' Santa Cruz Fruit Packing Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 660, 82 L.Ed. 954. `What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation.' Gully v. First National Bank, 299 U.S. 109, 117, 57 S.Ct. 96,...