Roberg v. Henry Phipps Estate

• Citation: 156 F.2d 958
• Decision Date: 16 July 1946
• Docket Number: No. 303,Docket 20227.,303
• Parties: ROBERG et al. v. HENRY PHIPPS ESTATE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

156 F.2d 958 (1946)

ROBERG et al. v. HENRY PHIPPS ESTATE et al.

No. 303, Docket 20227.

Circuit Court of Appeals, Second Circuit.

July 16, 1946.

Alfred S. Julien, of New York City, for plaintiffs.

Harold H. Levin, of New York City (Proskauer, Rose, Goetz & Mendelsohn and Joseph M. Proskauer, all of New York City, on the brief), for defendants.

William S. Tyson, Sol., and Morton Liftin, Asst. Sol., both of Washington, D. C., Irving Rozen, Regional Atty., of New York City, and Eugene Green, Atty., U. S. Dept. of Labor, of Washington, D. C., for the Administrator of the Wage and Hour Division, U. S. Dept. of Labor, amicus curiæ.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This is an action by nine painters and one window cleaner, all employed by the defendant corporations in various buildings in the City of New York, to recover overtime wages, liquidated damages, and counsel fees under § 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b). It presents once again the recurrent question of the coverage of building maintenance workers in New York City. In addition, one of the plaintiffs, alleging his discharge from employment because of participation in the present suit, seeks an injunction against discriminatory employment practice under §§ 15(a) (3) and 17, 29 U.S. C.A. §§ 215(a) (3), 217. The work was performed at three different buildings — two of them the office buildings described in detail below and one of them a downtown loft building. The District Court granted six of the plaintiffs overtime wages for work done at the loft building and denied the remainder of their claims, dismissed the complaint entirely as to the other four plaintiffs, and denied the injunction. All parties appeal.

The defendant corporations are the owners of about fifteen buildings in the City of New York. All the plaintiffs except Roberg were employed as painters and decorators in all of these buildings. Their claims herein concern, however, only the three buildings noted above. Of these, the two office buildings adjoin each other at 580 Fifth Avenue and 1-11 West 47th Street. Roberg was a window cleaner employed exclusively at the office buildings. In their capacity as maintenance workers, plaintiffs were not themselves engaged in interstate commerce; they were, however, engaged in the production of goods for such commerce if a sufficient number of the tenants serviced by them were so engaged. A. B. Kirschbaum Co. v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; 10 East 40th St. Bldg., Inc. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, 161 A.L.R. 1263; Baldwin v. Emigrant Industrial Sav. Bank, 2 Cir., 150 F.2d 524, 161 A.L.R. 1234, certiorari denied Emigrant Industrial Sav. Bank v. Baldwin, 66 S.Ct. 171; Fleming v. Post, 2 Cir., 146 F.2d 441, 158 A.L.R. 1384.

In the present case the District Court held that the tenants producing goods for interstate commerce must occupy at least 20 per cent of the rentable space in order for the building maintenance workers to be covered. Finding that the loft building was occupied exclusively by tenants engaged in production of goods for interstate commerce, it gave judgment for the six painters there employed, but only to the extent of that employment. It found that the office buildings lacked 695 sq. ft. of the necessary 20 per cent space devoted to interstate production, and denied coverage of those buildings on that ground.¹ Alternatively, it held that the type of work done by plaintiffs was in any case too far removed from commerce to come within the terms of the Act. On appeal, plaintiffs attack this calculation of the space devoted to interstate commerce; and defendants urge that the nature of the work done precluded recovery even at the loft building. Since all the facts were stipulated, our problem is one of drawing the correct legal inferences therefrom.

We reject at the outset defendants' contention. The Act expressly provides that an employee need be engaged only in "any process or occupation necessary to the production" of goods for commerce, § 3(j), 29 U.S.C.A. § 203(j); and the test is not the relative importance of the work, but the practical necessity of its performance to the production of goods. Window cleaners and painters have been held necessary to production, Martino v. Michigan Window Cleaning Co., 66 S.Ct. 379, as have carpenters, porters, and even firemen. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638.

Defendants' real quarrel, however, is not so much with the nature of the activity itself as with the irregularity of its performance. They seem to contend that because the painters were employed in all fifteen of defendants' buildings, they were not daily engaged in the maintenance of the Fifth Ave.-47th St. premises and were therefore not covered by the Act. The Supreme Court's recent decision in Martino v. Michigan Window Cleaning Co., supra, 66 S.Ct. 379, 381, has established the irrelevance of the number of buildings serviced in a case where the maintenance workers were employed by an independent contractor, rather than by the operator of the building. Here plaintiffs not only decorated or painted the entire premises at least once in two years, but completely painted and redecorated the space rented on each change of tenancy, painted partitions at the request of tenants, and, in alternate years, washed ceilings and floors throughout the two buildings. It is true that certain of the painters spent a relatively small amount of time on the Fifth Ave.-47th St. premises; but five of the nine did the greater proportion of their work there, and the total group proportion was 68 per cent. Defendants employed all of them on a full-time basis in every one of their New York buildings. They maintained on the Fifth Avenue premises central offices from which plaintiffs received their instructions and from which they might be sent to any of the other buildings. We see no reason why the circumstances of their employment should bar the painters' recovery or why any individual employee who happened to spend less of his time at the premises in question should therefore be denied recovery for overtime hours actually worked there.

The real issue in the case, then, is whether the production of goods for interstate commerce by the tenants in the Fifth Ave.-47 St. premises was sufficient to bring the maintenance workers within the terms of the Act. Plaintiffs object initially to the trial court's treatment of the two office buildings as one unit for the purpose of calculation; but the consolidation was entirely justified. The two buildings — one consisting of thirty-three stories and a penthouse, the other of twelve stories and a penthouse — were joined at several floors by connecting corridors and lobbies. They were provided with a single heating and electric power plant and served, to the twelfth floor, by a single bank of freight elevators. Several of the tenants of one building occupied space in the other; and defendants' central office was itself located half in one building and half in the other. Indeed, plaintiffs referred to the buildings as a single one both in their complaint and in the trial court and are now hardly in a position seriously to press objections.

We think the court erred, however, in holding so rigidly and precisely to its 20 per cent yardstick. In A. B. Kirschbaum Co. v. Walling, supra, the Supreme Court held that where a building is occupied by tenants actually engaged on the premises in the physical manufacture of goods for commerce, the maintenance employees are within the Act. It did not, however, lay down any requirement as to the number of tenants who must be so engaged. And while the facts show that in one of the buildings there involved, most of the lessees were interstate producers, there is no indication of the percentage in the second building held covered.² The case of 10 East 40th St. Bldg., Inc. v. Callus, supra, on which the trial court relied, held only that a substantial proportion of the tenants must be engaged on the premises in actual production of goods for interstate commerce. See Baldwin v. Emigrant Industrial Sav. Bank, supra, 2 Cir., 150 F.2d 524, 525, 161 A.L.R. 1234; 55 Yale L. J. 421.

The 20 per cent test of substantiality had its origin in a statement by the Administrator that he would be likely to start proceedings for maintenance workers in cases where tenants occupying 20 per cent of the building were engaged in the production of goods for commerce. W-H Release No. PR-19 (rev.), Nov. 19, 1943. It was utilized by us affirmatively in Callus v. 10 East Fortieth St. Bldg., Inc., 2 Cir., 146 F.2d 438, reversed on other grounds 10 East 40th St. Bldg., Inc. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, 161 A.L. R. 1263, in Baldwin v. Emigrant Industrial Sav. Bank, supra, and in Gangi v. D. A. Schulte, Inc., 2 Cir., 150 F.2d 694, affirmed D. A. Schulte, Inc. v. Gangi, 66 S.Ct. 925; but it has never been more than a rough guide or, as the Supreme Court phrased it in the Gangi case, a "working hypothesis." We cannot believe, therefore, that a "shortage" of 695 sq. ft. in a building with an area of 316,300 sq. ft. is a sufficient basis for denial of coverage on the ground of lack of substantial interstate production on the premises.

Even if the 20 per cent standard were to be inflexibly applied, however, the amount of space devoted to production of goods for interstate commerce, as now defined, was far above this requirement. It was stipulated by the parties that Longines-Wittnauer Watch Co., Inc., a manufacturer of watches and timing...