Martino v. Michigan Window Cleaning Co.

• Decision Date: 14 July 1943
• Docket Number: No. 3449.,3449.
• Citation: 51 F. Supp. 505
• Parties: MARTINO v. MICHIGAN WINDOW CLEANING CO.
• Court: U.S. District Court — Western District of Michigan

51 F. Supp. 505

MARTINO v. MICHIGAN WINDOW CLEANING CO.

No. 3449.

District Court, E. D. Michigan, S. D.

July 14, 1943.

Leon A. Cousens, of Detroit, Mich., for plaintiff.

Davidow & Davidow, of Detroit, Mich., for defendant.

PICARD, District Judge.

In an opinion rendered in this same matter February 3, 1943, denying plaintiff's petition for a summary judgment, this court expressed itself as follows: "Therefore, this court believes that the Kirschbaum case is not applicable; that there is a difference basically generating from the facts and that before plaintiff would be entitled to recover he would have to show that the greater part of the `servicing' engaged in by the employer is not in intrastate commerce. It may be that the burden of proof is on defendant but in any event this court must know whether defendant was engaged mostly in intrastate commerce or interstate commerce." We quote the above because of the evident misunderstanding of plaintiff as to its interpretation. The important part of that paragraph to this court is contained in the words: "but in any event this court must know whether defendant was engaged mostly in intrastate commerce or interstate commerce".

Admittedly the question here turns upon the interpretation to be given that part of Section 13 of the Fair Labor Standards Act, 29 U.S.C.A. § 213(a) (2), which is as follows: "(a) The provisions of sections 6 and 7 shall not apply to * * * (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce."

We decided in our original opinion that defendant was a service establishment, so that question is out of the way. Obviously then in conformity with the law above if more than 50 per cent of its business was interstate commerce, then its employees were under the act. But when this court rendered its February 3, 1943, opinion it didn't know whether defendant actually sent its men out of the state to service customers; whether the greater per cent of its customers were those who had their business here in Michigan but who were engaged in interstate commerce; or whether its business was a combination of the two. This court did not bind itself, as intimated by plaintiff's counsel in his briefs, to any conclusions, simply because it was seeking facts. If more than 50 per cent of defendant's business was intrastate commerce, then the answer would have been simple; but because, as the facts stipulate, more than 50 per cent of its business was devoted to serving Michigan customers engaged in interstate commerce or buildings where the occupants thereof were engaged in interstate commerce, the question was entirely different and presented this court with necessity for further deliberation and research.

The question here then is: "Is a service establishment engaged in interstate commerce because its employees (who do not go out of the state to work) do render service to customers who are admittedly engaged in interstate commerce, which service indirectly aids those customers `in the production of' their `goods for interstate commerce' and which service amounts to more than 50 per cent of the service establishment's business?"

If the position contended for by plaintiff is a correct statement of the law, then a comparatively few people, service establishments or otherwise, would not be included as subject to the Fair Labor Standards Act. If rendering the service of washing windows in a building for occupants who are engaged in interstate commerce automatically makes the window washers engaged in interstate commerce, it would be difficult under our complex economic and commercial life to conceive a situation where any workman...