Shultz v. Wilson Building, Inc., Civ. A. No. 69-C-52.

• Decision Date: 27 August 1970
• Docket Number: Civ. A. No. 69-C-52.
• Citation: 320 F. Supp. 664
• Parties: George P. SHULTZ, Secretary of Labor, United States Department of Labor v. The WILSON BUILDING, INC., a corporation.
• Court: U.S. District Court — Southern District of Texas

320 F. Supp. 664

George P. SHULTZ, Secretary of Labor, United States Department of Labor v. The WILSON BUILDING, INC., a corporation.

Civ. A. No. 69-C-52.

United States District Court, S. D. Texas, Corpus Christi Division.

August 27, 1970.

M. J. Parmenter and William E. Everheart, U. S. Dept. of Labor, Dallas, Tex., for plaintiff.

Owen D. Cox, Boone, Davis, Cox & Hale, Corpus Christi, Tex., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SEALS, District Judge.

The Secretary of Labor, United States Department of Labor brought this action to enjoin defendant from violating the provisions of sections 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), hereinafter referred to as the Act, and to restrain the withholding by defendant of payment of any minimum wage and overtime compensation found by the court to be due defendant's employees under the Act, together with interest thereon at the rate of six per cent per annum from the dates said amounts became due.

This cause having been tried before the court and having considered the pleadings, discovery, stipulations, exhibits, oral testimony of witnesses, and statements of counsel, the court now makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. Defendant, at all times since February 1, 1967, has been a corporation having its principal office and place of business at 1701 Wilson Tower Building, Corpus Christi, Nueces County, Texas.

2. Defendant, during the period since February 1, 1967, has been engaged in the ownership and management of The Wilson Building and The Wilson Tower Building, and during the period since August 1, 1967 has been engaged in the operation of The Wilson Tower Garage and two (2) parking lots, all of which are located in Corpus Christi, Texas.

3. Defendant's annual gross volume of business done for each of the years 1966, 1967 and 1968, was in excess of $500,000, and its annual gross volume of business done for the year 1969 was in excess of $250,000.

4. United States mail and parcel post have been regularly delivered directly to the offices of some of The Wilson Building and The Wilson Tower Building tenants in every week by United States mailmen during the period since February 1, 1967, and in making such deliveries they use the elevators located in said buildings. A substantial portion of such mail and parcel post has been, and is being, mailed to these tenants from points outside the State of Texas.

5. Freight has been regularly received by tenants in The Wilson Building and The Wilson Tower Building in every week since February 1, 1967. Freight delivered to the tenants in such buildings above the street floor is transported by means of the passenger elevators in such buildings. A substantial portion of such regularly delivered freight has been shipped from places located outside the State of Texas direct to the addressee tenant.

6. There are two passenger elevators serving the Broadway Street entrance and two passenger elevators serving the Leopard Street entrance to The Wilson Building. There are no employee operators for the elevators at the Broadway Street entrance or at the Leopard Street entrance of said building. There is no starter for these self-operating elevators. The automatic elevators are operated by the mailman in making regular deliveries and by mailmen for parcel post and also by delivery men making freight deliveries.

7. The Wilson Tower Building has four passenger elevators serving it at the Carancahua Street entrance, which during working days are operated, and have been operated since February 1, 1967, by employees of the defendant. One elevator can be, and is at night and on Sundays, placed on automatic so no operator is necessary, and it is then operated by the passenger. Ordinarily, from 2,000 to 3,000 passengers travel on The Wilson Tower Building elevators (up and down) each day, 5 days each week. The passengers are tenants, employees of tenants and clients, customers and other persons doing business with the various tenants.

8. There are nine employees of defendant who are designated elevator operators operating elevators in The Wilson Tower Building. Elevators which are operated by employee operators carry passengers indiscriminately with no distinction as to the nature of business of the passenger. The postman delivering mail has no priority rights to the use of any of the elevators and he usually rides with other passengers. Passengers have prior right to use of the elevators during business hours over freight and parcel post deliveries.

9. A mailman makes two regular trips per day in The Wilson Tower Building delivering mail. He is inside the elevator about five minutes during each day. He does not deliver mail to all the tenants each day, nor does he get off of the elevator on each floor of the building.

10. The ground-floor tenants in The Wilson Building and The Wilson Tower Building have outside entrances and a few have entrances from the building ground-floor lobbies. The employees of such tenants and their customers do not use the elevators to reach the offices of such tenants, nor are the elevators used to deliver regular mail, parcel post packages, and freight to such tenants.

11. The time of the operators of the four elevators in The Wilson Tower Building which is taken up solely in carrying interstate freight, and mailmen who carry regular mail and parcel post deliveries, is very small in comparison to the time required of the operators in connection with the other regular uses of such elevators. But the interstate deliveries of mail, freight and parcel post to The Wilson Tower Building are sufficiently regular, frequent and substantial in amount to constitute said elevator operators as being engaged in commerce; and the elevator operators are so closely related to the movement of commerce as to be a part of it.

12. Defendant employs individuals who do janitorial work in both The Wilson Building and The Wilson Tower Building, such as cleaning the various offices which are occupied by tenants, cleaning and waxing hallways, washing windows, keeping restrooms clean and stocked with soap, toilet paper and paper towels, emptying wastebaskets, vacuuming rugs, and similar types of work. All such services are performed for the benefit of the tenants in the two buildings and are required by defendant's rental agreements, either directly or indirectly.

13. Defendant employs individuals who do maid work in both The Wilson Building and The Wilson Tower Building, such as cleaning the various offices which are occupied by tenants, keeping restrooms clean and stocked with soap, toilet paper and paper towels, emptying wastebaskets and dusting. All such services are performed for the benefit of the tenants in the two buildings and are required by defendant's rental agreements, either directly or indirectly.

14. Defendant employs maintenance employees who do such work as remodeling office space and making repairs in The Wilson Building and The Wilson Tower Building. All such work is performed for the benefit of the tenants in the two buildings and is required by defendant's rental agreements, either directly or indirectly.

15. Defendant employs one employee, Lupe Perez, who regularly, since February 1, 1967, has replaced burned-out light bulbs and fluorescent lamps throughout both The Wilson Building and The Wilson Tower Building in tenant offices, hallways and restrooms. The furnishing of such light bulbs and fluorescent lamps is required by defendant's rental agreements, either directly or indirectly.

16. All of the materials and supplies handled by employees of defendant doing janitorial work and maid work and by maintenance employees and by mechanical engineering employees are owned by defendant at the time they are used in and around The Wilson Building and Annex and The Wilson Tower Building. The defendant has complete control over such materials and can change brands and suppliers at will, without the consent of any tenant. The soap, paper towels and toilet tissue in the restrooms can be removed from the containers and replaced by defendant at will and such materials are available for use, not only by tenants, but by employees, clients and customers of tenants, employees of defendant and sometimes strangers. The light bulbs and lamps in the various offices of the tenants can be removed and replaced by defendant at will without the consent of any tenant. The light bulbs and lamps purchased by defendant are used in the lobbies and hallways of the buildings owned by defendant, as well as in office space occupied by tenants. The wax, detergent and other cleaning materials are used in the lobbies and hallways of the buildings as well as in the office space occupied by tenants, and are used by defendant to preserve the halls, lobbies of the buildings, and to keep them clean, as well as to keep the office space occupied by tenants clean and neat and in a state of preservation.

17. The materials and supplies handled by employees of defendant doing janitorial work and maid work, and by maintenance employees and by mechanical engineering employees, are purchased by defendant from business concerns in Corpus Christi, Texas. Soap, paper towels and toilet tissue and the wax, detergents and other cleaning material are purchased primarily from one distributor which owns the materials on its shelves as a part of its stock of merchandise for sale, and it sells and delivers supplies to defendant from such stock of merchandise. The light bulbs and lamps are purchased from a distributor in Corpus Christi, Texas, who owns the stock of merchandise on its shelves, and it sells and delivers such items to defendant from the stock of merchandise the distributor owns and has on its shelves for sale. The materials purchased by defendant,...