Tobin v. Girard Properties, 14295.

• Decision Date: 06 August 1953
• Docket Number: No. 14295.,14295.
• Citation: 206 F.2d 524
• Parties: TOBIN v. GIRARD PROPERTIES, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 524 (1953)

TOBIN v. GIRARD PROPERTIES, Inc.

No. 14295.

United States Court of Appeals Fifth Circuit.

August 6, 1953.

Bessie Margolin, Asst. Sol., U. S. Dept. of Labor, Washington, D. C., Earl Street, Regional Atty., U. S. Dept. of Labor, Dallas, Tex., William S. Tyson, Sol., William A. Lowe, Herbert Lasky, Attys., United States Department of Labor, Washington, D. C., for appellant.

Lyon L. Brinsmade and Jack Binion, Houston, Tex., Butler, Binion, Rice & Cook, Houston, Tex., of counsel, for appellee.

Before HOLMES, BORAH, and RIVES, Circuit Judges.

BORAH, Circuit Judge.

This action was brought by appellant, the Secretary of Labor, seeking to enjoin appellee, Girard Properties, Inc., from future alleged violation of the minimum wage, overtime compensation, and record keeping provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 201 et seq. The employees involved in the alleged violations are elevator operators and starters, elevator mechanics, janitors, and building maintenance engineers employed by appellee in its office building. The appellee answered admitting noncompliance with the provisions of the Act and set up as a defense that its employees were not "engaged in commerce or in the production of goods for commerce". A trial was had and the District Court found that the building employees were not "engaged in commerce" within the meaning of the Act and dismissed the case. This appeal challenges the correctness of this holding and raises no other issue as appellant abandoned in the District Court his contention that appellee's building maintenance and service employees were engaged "in the production of goods for commerce."

The facts are not in controversy and were found by the District Court to be as follows:

"Defendant (appellee) is a Pennsylvania corporation maintaining its principal place of business in this City and State. It has constructed and now owns and operates a sixteen-story and basement office building located at 1114 Texas Avenue, Houston, Texas. In its architectural and structural characteristics, the building is in all things similar to other office buildings of similar size in this City and other cities of this area. The defendant leases its office space to various tenants and renders the usual type of service incident to the operation of such an office building, consisting of maintaining and servicing a bank of elevators, heating and cooling systems, janitor service, building maintenance, upkeep, etc.

"During the period in question, the rentable area of the defendant's building has been leased to and occupied by approximately thirteen tenants. The thirteenth to sixteenth floors, inclusive, are occupied by firms of attorneys, public accountants, insurance companies, sales offices of large interstate concerns, and offices of a gas transmission company, and the administrative office of one company engaged in the sale of scrap metal. A concession stand occupies a small portion of the first floor, wherein the lessee sells tobacco, soft drinks and confections. The first twelve floors and a portion of the basement are leased by the defendant to the Southwestern Bell Telephone Company (whose tenancy undoubtedly occasioned this litigation). These twelve floors occupied by the Telephone Company are used by it exclusively for executive and administrative activities, such as offices for executives, conference rooms, lounges, recreation and club rooms, etc. The Telephone Company has no communication or transmission equipment whatsoever in the defendant's building, and none of its employees actually engage in any communication or transmission activities upon the defendant's premises.

"Adjacent to the south wall of the defendant's building is an entirely separate and distinct building owned by the Southwestern Bell Telephone Company and known as the Telephone Exchange Building. This telephone building is not the normal office building, having higher ceilings and more heavily reinforced floors in order to accommodate the heavy telephone and transmission equipment. A large amount of such equipment is located in the Telephone Company building.

"Not only are the two buildings separate structures, but the Telephone Company maintains and operates its own building entirely separate and distinct from that of the defendant. The Telephone Company has its own elevators, heating and cooling systems, its own building employees, including janitors, elevator operators, plumbers, electricians, and other maintenance employees. These Telephone Company employees do not perform any work in the defendant's building, nor do the similar employees of the defendant perform any of their work in the Telephone Company building.

"For the convenience of the Telephone Company and its officers and employees who utilize space in the defendant's building, the defendant caused doorways to be cut in the walls of the basement, first, ninth, tenth and eleventh floors of defendant's office building and constructed doors and passageways so as to provide a connection between such floors of the defendant's building and the offsetting floors of the Telephone Company building. As the floor levels of the two buildings are not the same, it is necessary to descend or ascend a series of steps in going from one building to another through these passageways.

"During the period in question, the defendant has been employing from forty-five to fifty persons in the capacities of janitors, elevator operators and starters, mechanics, and building maintenance engineers who perform the types of services which their titles indicate, such as cleaning and maintaining the offices, hallways and restrooms in the building, operating and maintaining in operating condition the elevators, heating and cooling systems, electrical equipment, etc. These employees perform these services for the accommodation and convenience of all of the tenants upon all of the floors. * * *"

On the foregoing facts appellant contends that appellee's building maintenance and service employees are engaged in commerce because their work is an integral part of the operation of the telephone company's interstate communication system. Specifically, we are urged to hold that these employees were engaged in commerce on the authority of Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L. Ed. 1865. In that case the Borden Company owned and operated an office building in which 58% of the rentable space was used for its central offices, where its production of goods for interstate commerce was administered, managed and controlled, although the goods were actually produced at plants located elsewhere. The court held that the executive offices and administrative employees working in the central office of this industrial organization were actually engaged in the production of goods for commerce and that the maintenance employees working in the building were engaged in an "occupation necessary to the production" of goods for interstate commerce within the meaning of § 3(j) of the Act, and were therefore covered by the Act.

The issue in the instant case as to whether the employees involved were engaged in commerce within the meaning of the Act was not before the court in the Borden Case. The two cases also differ in this important particular: that here, unlike in Borden, neither appellee, nor its employees, nor any of its tenants are engaged in the "production of goods for commerce" in appellee's office building. Despite this difference and others apparent appellant claims that the building facilities in the instant case are much more closely linked with the operation of the interstate enterprise than was the Borden building and it is argued that the facts here call for the application of the Borden decision, "unless wholly different principles are to be applied to the `in commerce' phase of coverage of the Act" than is applied to the "production of goods for commerce" phase of coverage. In this connection the further argument is made that there is no sound basis in the statute, or in the decisions of the Supreme Court and of this Court, for applying basically different standards in determining the applicability of the Act to building maintenance employees who have the same degree of integration with the interstate commerce of the telephone company as maintenance...