Wirtz v. SAVANNAH BANK & TRUST COMPANY OF SAVANNAH

• Decision Date: 02 December 1964
• Docket Number: Civ. A. No. 1351.
• Citation: 247 F. Supp. 547
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. SAVANNAH BANK & TRUST COMPANY OF SAVANNAH, a Corporation, Defendant.
• Court: U.S. District Court — Southern District of Georgia

247 F. Supp. 547

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. SAVANNAH BANK & TRUST COMPANY OF SAVANNAH, a Corporation, Defendant.

Civ. A. No. 1351.

United States District Court S. D. Georgia, Savannah Division.

December 2, 1964.

Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, for plaintiff.

James P. Houlihan, Jr., Savannah, Ga., for defendant.

SCARLETT, District Judge.

This is an action brought by Plaintiff seeking to enjoin Defendant from allegedly violating the provisions of § 15(a) (2) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 201 et seq.).

The Defendant, Savannah Bank & Trust Company of Savannah, is a banking corporation organized under the laws of Georgia with its offices located in Savannah, Georgia. The Bank's principal office is located in a fifteen story bank and office building at the Northeast corner of Bull and Bryan Streets, in Savannah. The Bank, itself, occupies approximately 22% of the space in the building with the remaining 78% of the building being occupied by a variety of tenants who rent office space from the Bank.

Savannah Bank is a commercial bank engaged in all the usual activities of a commercial bank. It is a member of the Federal Reserve System and its deposits are insured by the Federal Deposit Insurance Corporation.

This action involves the wages of twelve cleaning and maintenance employees, hereinafter called "office building employees", whose duties are limited to those portions of the building leased to tenants. The question before this Court is whether these employees are covered by the Minimum Wage provisions of the Fair Labor Standards Act as Amended. They are not paid the minimum wage provided by the Act but are paid somewhat better than the going rate for this type of service in the Savannah area.

The 1962 Annual Report of the Bank is a part of the record submitted to the Court for its consideration. This Report shows that the gross operating earnings of the Bank for the year 1962 were $2,763,543.90. This is broken down into interest earned on loans, $1,671,801.02, interest earned on securities $521,725.16, income from services $456,523.45 and bank building rentals of $113,494.27. These figures are fairly representative of the Bank's earnings in other years, including 1963. Building rentals, in particular, vary only slightly from year to year.

By stipulation, the parties have submitted this case for decision by the Court on the basis of the record to date which includes all pleadings, stipulations, various affidavits and the testimony of Defendant's President, Auditor and Building Manager, which was taken by Plaintiff. The only pleading that has not been considered by the Court is Defendant's Motion for Summary Judgment which is not urged. However, the affidavits in support of that Motion are a part of the record that has been considered by this Court. Finally, Plaintiff has stipulated that it does not contend in this action that the office building employees, whose duties are limited to the rented portions of the Building, were subject to the provisions of the Fair Labor Standards Act prior to the Amendments of 1961.

Thus, the sole question before the Court is whether the Amendments to the Fair Labor Standards Act, which became effective on September 3, 1961, extended the coverage of the Act to Defendant's office building employees.

In 1961, and effective on September 3, 1961, Congress enacted various Amendments to the Fair Labor Standards Act. The pertinent provisions of the Act are contained in Title 29 of the United States Code and are as follows:

"Section 203(d) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization."

"Section 203(r) "Enterprise" means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor; * * *"

"Section 203 (s) "Enterprise engaged in commerce or in the production of goods for commerce" means any of the following in the activities of which employees are so engaged, including employees handling, selling or otherwise working on goods that have been moved in or produced for commerce by any person:

(3) any establishment of any such enterprise, except establishments or enterprises referred to in other paragraphs of this subsection, which has employees engaged in commerce or in the production of goods for commerce if the annual gross volume of sales of such enterprise is not less than $1,000,000;"

Subparagraphs 1, 2, 4 and 5, of Section 203(s) admittedly do not apply here.

Plaintiff has argued extensively that the legislative history of the 1961 Act shows a clear and unmistakable intent on the part of Congress to extend the coverage of the Act to employees such as Defendant's office building employees. These arguments, based on the use of various isolated words in the Senate Committee Report are unconvincing and the Court finds there is nothing in the legislative history of the Act to show any intention on the part of Congress to...