McComb v. Turpin

• Decision Date: 30 November 1948
• Docket Number: Civ. A. No. 4028.
• Citation: McComb v. Turpin, 81 F.Supp. 86 (D. Md. 1948)
• Parties: McCOMB v. TURPIN et al.
• Court: U.S. District Court — District of Maryland

81 F. Supp. 86

McCOMB v.TURPIN et al.

Civ. A. No. 4028.

United States District Court D. Maryland.

November 30, 1948.

Wm. S. Tyson, Solicitor, U. S. Dept. of Labor, of Washington, D. C., Ernest N. Votaw, Regional Atty., U. S. Dept. of Labor, of Philadelphia, Pa., and Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for plaintiff.

Herbert Levy, Levy, Byrnes & Gordon, Charles C. G. Evans, and Marbury, Miller & Evans, all of Baltimore, Md., for defendants.

CHESNUT, District Judge.

The Administrator of the Wage and Hour Division of the United States Department of Labor seeks an injunction against the defendants from further alleged violation of the Fair Labor Standards Act,29 U.S.C.A. § 201 et seq.The complaint alleges that the defendants have violated the Act(1) in failure to compensate their employees for work in excess of 40 hours per week at rates not less than one and one half times the regular rate at which they were employed; (2) failure to keep adequate records of the wages and hours of their employees; (3) and in shipping, delivering and selling goods in interstate commerce produced by employees in violation of the terms of the Act.In their answer the defendants deny that their activities or those of their employees subject them to the Act.

The facts of the case are contained in a stipulation.The defendants are engaged in the practice of professional or consulting engineers and architects with offices in Baltimore City, Maryland.Their work consists solely of consultation with specific clients with respect to engineering and architectural problems and the giving of advice and recommendations in the solution of such problems.In order to make their advices and recommendations clear to the client, drawings and specifications are in some cases prepared for his information and furnished exclusively to him.The original drawings are made on tracing cloth or paper and in some cases blueprints are made therefor for the defendants by an independent concern.The specifications prescribe what is to be done and the kind and quality of materials to be used.The clients usually obtain bids from various contractors for the work to be done, and, where competitive bids are received, defendants usually examine and tabulate them to determine the lowest bidder and to make further recommendations to the client pertinent thereto.Where the work to be done is local, that is, in or near the defendants' offices, in some casesthey inspect the work and report its progress to the client.The defendants are paid fees for their services by the respective clients.The defendants do not buy or sell merchandise of any kind for incorporation in work to be done by the client.They have no inventory and engage in no construction work and have no connection with other persons, firms or corporations so engaged.The defendants have no prejudicial (personal) interest in any project either as owner, contractor or producer or seller of materials.They do not engage in competitive bidding with others for their professional services.

All the employees of the defendants(other than the secretarial employees and office boys) have a knowledge of the application to the art and science of construction, of mathematics, natural laws, engineering and architectural principles, in which they must have had special training and must be competent to perform creative work in the development of plans for the structures to be erected.The defendants are members of the American Society of Civil Engineers and of the Maryland Society of Professional Engineers.

The "Associates" of the defendants are five in number and are registered professional engineers or architects.In addition to these five Associates the defendants employ eighteen other specially trained persons.With respect to the present professional activities and services of the defendants, the stipulation lists the names of their present clients, and the nature and location of the respective projects.Their present clients are the Mayor and City Council of Baltimore; the State of Maryland; the Consolidated Gas Electric Light & Power Company of Baltimore, and one individual, a private client.All the projects for these clients are located in the State of Maryland and in or not far from Baltimore.The nature of the projects includes a swimming pool and dog kennels (for the private client); a sub-station for the Gas & Electric Company; survey of a power plant for the Maryland Penitentiary; alterations and additions to the State House and Court of Appeals Building in Annapolis; and some construction work with regard to sewers and bridges.

In addition, and within the past year, the defendants have performed professional services as engineers and architects for a number of clients whose projects were located in Pennsylvania, Virginia and some other States.The nature of such projects included a sewage treatment plant, alterations to a paint plant, designs for conveyor galleries in control towers, and similar engineering or architectural projects.All these projects have presently been completed; but the defendants do not intend in the future to limit their services to Maryland clients; nor to projects to be located only in this State.They hold themselves out to render professional services in connection with many kinds of structures and equipment whether for original construction or for alterations or additions, and whether the clients owning or operating said establishments are engaged in interstate commerce or the production of goods for commerce or not.Mostly their services relate to the original construction of buildings rather than to additions or alterations.The plaintiff has filed as exhibits illustrative of the defendants' drawings and specifications, a familiar type of blueprint for an engineering or architectural project, and a voluminous set of specifications for a client to be used by it for obtaining bids for a particular project; and also a report to a client, in the nature of an audit or appraisal of the value of work completed and still to be done by a contractor or sub-contractor.

After hearing counsel and a study of the stipulation and a re-reading of the principal relevant judicial decisions cited by counsel, I reach the conclusion of law that the defendants are not subject to the Act, the provisions of which are now so well known that it is unnecessary to re-state them in detail.

In considering the problem presented by this case, it is well to keep in mind some of the broader aspects of the Fair Labor Standards Act and the general principles enunciated by the Supreme Court as guiding beacons.Of course, in enacting this piece of legislation, Congress did not exhaust the full scope of its power under the commerce clause of the Constitution, art. 1, § 8, cl. 3, and the judicial decisions applying the Act to specific factual situations, must bear in mind the implications of our dual system of government.Kirschbaum v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638.The result of these considerations, as well as of the consideration which motivated the passage of this law, is that it is difficult, but nonetheless necessary, to resolve opposites, the solution of which is one of degree which must be judged by rational considerations rather than bordering cases.The solution cannot be all black or all white; necessarily it represents the rational selection of one of many closely related and almost imperceptibly distinguishable shades of gray.As the Supreme Court has stated, the judicial interpretation of the Act has involved the courts"in the empiric process of drawing lines from case to case, and inevitably nice lines."10 E. 40th Street Building v. Callus, 325 U. S. 578, 579, 65 S.Ct. 1227, 1228, 89 L.Ed. 1806, 161 A.L.R. 1263.

With respect to required compensation of employees for work in excess of 40 hours a week, it will, of course, be remembered that the Act covers only those employees who are themselves engaged in interstate commerce or in the production of goods for commerce.It is not contended in this case that any of the defendants' employees are engaged in interstate commerce, but counsel for the plaintiff does contend that, although the so-called "Associates" are probably excluded from the coverage of the Act by reason of being professional employees, there are 18 or more other employees who are engaged in the production of goods for commerce.One of his contentions is that the mere preparation of the plans intended to be sent by mail, express or messenger to a client in another State, irrespective of the nature of the building or structure proposed to be constructed, constitutes production of goods for commerce.This can be true only if the definition of the word "goods" as contained in the Act is construed to cover the preparation of the plans, drawings and specifications referred to in the stipulation.The definition § 203(i) defines "goods" to mean "goods * * * wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof".I do not think even this broad literal definition could fairly be construed to apply to the plans, drawings and specifications prepared by or under the supervision of the defendants or their employees.They are only a physical embodiment in words of professional conclusions.A short quotation from the opinion of Justice Holmes in Federal Base Ball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U. S. 200, 208, 209, 42 S.Ct. 465, 466, 66 L.Ed. 898, 26 A.L.R. 357, is also here apposite.The question there was whether baseball clubs were engaged in interstate commerce.

"That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words.As it is put by the defendant, personal effort, not related to production, is not a subject of commerce.That which...