Wirtz v. AS Giometti & Associates, Inc.

• Citation: 399 F.2d 738
• Decision Date: 23 August 1968
• Docket Number: No. 25444.,25444.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. A. S. GIOMETTI & ASSOCIATES, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 738 (1968)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. A. S. GIOMETTI & ASSOCIATES, INC., et al., Appellees.

No. 25444.

United States Court of Appeals Fifth Circuit.

August 23, 1968.

Bessie Margolin, Associate Sol., Dept. of Labor, Robert E. Nagle, Donald S. Shire, Attys., Dept. of Labor, Charles Donahue, Solicitor of Labor, Beverley R. Worrell, Regional Attorney, Washington, D. C., for appellant.

Hoke Smith, Atlanta, Ga., for appellees; Smith, Cohen, Ringel, Kohler, Martin & Lowe, Atlanta, Ga., of counsel.

Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The only issue presented in this appeal is whether draftsmen who make plats and maps of land boundary locations are engaged "in the production of goods for commerce," 29 U.S.C.A. § 206(a), so that their Employer¹ is required to comply with the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. More specifically, we must decide whether the plats and maps prepared by Employer's draftsmen are "goods" within the meaning of the Act. The District Judge held that they were not and dismissed the case. We disagree and reverse.

The facts were stipulated and may be severely capsulated. The Employer concedes that it does not at this time comply with the wage, overtime, or recordkeeping provisions of the Act. The Employer's business involves the preparation of maps and plats to aid attorneys, banks, businessmen, prospective land buyers, and lending institutions in ascertaining the exact boundary lines of property in the State of Georgia. Some of the employees are engaged in field work — doing the actual surveying — while others act as draftsmen, reducing the field notes and observations into a drawing, a visual representation of the boundary marks.

Interstate commerce is not really in question for the facts also show that almost all of the local lending institutions who procure these drawings which are produced by those working for the Employer and who make loans based on the lands involved later sell that security to mortgage investors outside the State of Georgia. Similarly, in about 90 percent of the residential surveys made, at least one copy of the drawings is sent outside the State of Georgia. Nor is the question of the importance of these actions in the work schedule of employees of any significance. The fact is that there is no dispute that preparing these drawings involves a substantial amount of the employees' time.

As a physical matter these papers on which the plats appear are "things." Likewise the paper is changed from an unrevealing blank piece of paper to one which is not only a "thing" but a thing on which something else has been added — perhaps two things, (a) the artistic-engineering concept of the scrivener-artist-draftsman, and (b) the lines, squares, angles, curves making up the drawing plus the physical ingredients of India ink or other mediums in which they are sketched. What is it then, which makes something less than "goods" out of physical material which in the operation is changed from a blank nothing into something significant?

This is what leads us to the Employer's contention so successfully pressed below. With conceptualistic ingenuity which perhaps rivals our own efforts to describe the Employer's work product, it contends, and the District Judge found, that these drawings and plats are nothing more than physical embodiments of professional conclusions concerning title, area, ownership, etc., and therefore do not come within the definition of "goods" contained in 29 U.S.C.A. § 203(i).²

As we view it, an Act meant to operate directly in the very practical matter of hourly, daily, and weekly pay of non-owner wage-earners cannot tolerate such metaphysical dialectic as the basis for its application. Getting it out of these heady heights, the decisions so far reject it.

Thus in the early days of FLSA the Court in Western Union Tel. Co. v. Lenroot, 1945, 323 U.S. 490, 65 S.Ct. 335, 89 L.Ed. 414, held that telegraph messages from Morse's historic dots and dashes traveling imperceptibly at electrifying speeds which today would be considered a slumbering pace were "subjects of commerce" and thus constituted "goods" as defined in the Act. If a Court in those relatively unsophisticated days could conclude that "ideas, wishes, orders, and intelligence" were subjects of commerce, 323 U.S. at 502, 65 S.Ct. at 341, 89 L.Ed. at 423, we would be hard pressed to find a rational, definable distinction between such intangibles held to be within the Act and the tangible maps and plats produced and distributed by the Employer here.³

Our recent opinion in Allen v. Atlantic Realty Co., 5 Cir., 1967, 384 F.2d 527, is also highly relevant to the issue presented here. In that case this Court held that "ideas, plans, practices, suggestions, reports, statement of policies, etc. * *" prepared by a management group and printed for distribution...