Greene v. Anchor Mills Co.

Seawell, J. The appeal of plaintiffs calls in question the conclusion of the trial court that they are not, upon the facts of the case, within the purview of the Fair Labor Standards Act of 1938, generally known as the Wage and Hour Law; Act of 25 June, 1938, chapter 1060, 29 U. S. C. A., sec. 201, el seq. The benefits of this Act are extended to an employee engaged (1) “in commerce”; or (2), “in production of goods for commerce” — meaning in both instances, of course, interstate commerce. Sections 206 (a) and 207 (a). Commerce is defined as “trade, commerce, transportation, transmission, or communication among the several states or from any state to any place outside thereof.” Sec. 203 (b). The employee referred to in the second class is defined as one engaged “in producing, manufacturing, mining, handling, transmitting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof in any state/’ 203 (j). It is not contended that plaintiff employees are engaged in any service necessary to the manufacture or production of goods intended for interstate commerce, since no manufacture or production of goods was carried on in the office building of the defendant in which they served. But it is contended that plaintiffs’ duties in servicing the building bring them within the first named class as being “engaged in commerce” [719] because some of the occupants of the building which they serviced were so engaged. The appellants rely largely on Kirschbaum v. Walling, 316 U. S., 517, 86 L. Ed., 1638, in which it was held that employees performing comparable services in a “loft” building, where production of goods for commerce was carried on, were held to be within the protection of the Act. We apprehend, however, that plaintiffs are not materially aided by Kirschbaum v. Walling, supra. That case and the case at bar differ in factual situation with respect to which the statute itself speaks discrim-inatively between the classes of employees respectively intended to be covered. The disjunctive “or” does not introduce matter explanatory or identical or interchangeable. An entirely new class is created and brought into the pale of the law by a definition far reaching in its obvious terms and in their reasonable implication — a definition significantly wanting as to the class with which we deal here, “those engaged in commerce.” Our reasoning from the law and our deference to well considered cases in the Federal jurisdiction constrain us to reject the more' enthusiastic construction placed upon the statute by appellants, and to hold that by the use of the phrase engaged in commerce the Congress did not intend to exhaust all the potentialities of coverage in the field of regulation it has thus entered, or that the description should be expanded to include employees who, like the plaintiffs, more remotely affect that commerce. Kirschbaum v. Walling, supra, 316 U. S., pp. 521-523, 86 L. Ed., pp. 646, 647; McLeod v. Threlkeld, 319 U. S., 497, 87 L. Ed., 1538. Since it took a further and more exhaustive definition to include employees of the second class mentioned, who might be said to be twice removed from the channels of commerce — those who were engaged in production of goods intended for commerce, but not yet in its flow, and those who are necessary to such production — it would seem that there was still room and occasion for a similar expansion of the class merely referred to as engaged in commerce, if it had been so intended. The word “necessary” is notoriously elastic — and in different connections has been used to express every shade of meaning between exigency and convenience. The Congress, in its wisdom, did not employ such a modifying word to prevent the drawing of a line between those who are actually engaged in commerce and those who more remotely affect it. In Kirschbaum v. Walling, supra (loc. cit., p. 521), after a historical review of instances in which the Congress did not see fit to extend its regulation into all areas within the constitutional limit, the Court said : “We cannot, therefore, indulge in the loose assumption that when Congress adopts a new scheme for Federal industrial regulation, it thereby deals with all situations falling within the general mischief which gave rise to the legislation. Such an assumption might be valid [720] where remedy of the mischief is the concern of only a single unitary government. It cannot be accepted where the practicalities of federalism-7-or, more precisely, the underlying assumptions of our dual form of government and the consequent presuppositions of legislative draftsmanship which are expressive of our history and habits — cut across what might otherwise be the implied range of the legislation. Congress may choose, as it has chosen frequently in the past, to regulate only part of what it constitutionally can regulate, leaving to the States activities, which, if isolated, are only local.” The embarrassment to local regulation of similar activities, clearly beyond the Commerce Clause and properly within the province of State action, has not infrequently been a consideration leading to more conservative measures in congressional regulation of industry and its incidents. See historic review in above citations. Until Congress acts again and provides new definitions for those who are “engaged in commerce,” or extends its categories by language which will become the dictionary of the law, we are compelled to give the language used a common sense definition, with the aid of well considered cases. We have already observed that no definition was attempted in the statute of the phrase employed to designate this class — othér than those “engaged” in commerce. There is a frank recognition in the law that those only are to be included who are actually so engaged, and not merely engaged in incidental occupations which might more or less affect it, or even'more remotely aid it. The test, as applied in McLeod v. ThrelJceld, supra (loe. cit., p. 497, 87 L. Ed., 1543), is thus given: “The test under this present act, to determine whether an employee is engaged in commerce, is not whether the employee’s activities affect or indirectly relate to interstate commerce, but whether they are actually in or so closely related to the movement of the commerce as to be a part of it. Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase, 'production of goods for commerce.’ ” Stoilca v. First National Banlc (1943), 290 N. Y., 195, 48 N. E. (2d), 482, 88 L. Ed., . It is impossible in a matter of this sort to formulate a satisfactory rule of general application, nor can we 'extract a principle from the decided eases that will enable us to draw the line with an exactness which will satisfy all minds. We are convinced, however, that the line must be drawn in closer proximity than these plaintiffs stand to an actual movement of some sort across State lines, within the definition of “commerce” provided in the statute, whether -of things tangible or intangible. The word engaged, we think, has that connotation. It is [721] regrettable, of course, that because of its poverty, our language does not always afford words of absolute precision; but it is to be noted that when we come to consider those who are to come within the Act because of their connection with the manufacture or production of goods for interstate commerce, the same word “engaged” qualifies production and manufacture, and it was thought essential to enlarge and extend the meaning of that word so as to include employees related to manufacture or production of goods, as these plaintiffs now claim to be related to ■ the movement of commerce. There is, after all, a rather wide margin standing between those who directly participate in such movement and those whose activities are more remotely ancillary thereto. The. course of decision has been very uniform in denying the application of the Act to factual situations and relations similar to those presented in the case at bar. Lofther v. First National Bank of Chicago, 138 F. (2d), 299 (O. 0. A. 7th); Johnson v. Dallas Downtown Development Company, 132 F. (2d), 287 ( 0. 0. A. 5th) ; Rosenberg v. Loren-zetti, 137 F.. (2d), 742 (C. 0. A. 9th); Rucker v. First Nat. Bank of Miami, Oklahoma, .138 F. (2d), 699 (0. C. A. 10th) ; Tate v. Empire Building Corporation, 135. F. (2d), 743 (0. 0. A. 6th) ; Cochran v. Florida National Banking Corporation, 134 F. (2d), 615 (0. C. A. 5th) ; Johnson v. Masonic Building Company, 138 F. (2d), 817 (C. C. A. 5th). Amongst the State court decisions holding similarly may be cited the following: Stoikes v. First Nat. Bank of the City of New York, 48 N. E. (2d), 482 (N. T.); Cecil v. Gradison, 40 N. E. (2d), 958 (Ohio); Johnson v. Nat. Life Ins. Co., 166 S. W. (2d), 935 (Okla.); Baum v. A. C. Office Building, 143 P. (2d), 417 (Oal.) ; Robinson v. Massachusetts Life Ins. Co., 158 S. E., 441 (Tenn.). In Walling v. Jacksonville Paper Co., 317 TJ. S., 564, 87 L. Ed., 460, the Court held that the clause “engaged in commerce” covered every employee “in the channel of interstate commerce,” as distinguished from those who merely affect that commerce. This holding is cited in McLeod v. Threlkeld, supra, with the same distinction. This expression must be considered within the frame of its reference, and so considered, applies to those who directly participate in movements or communications within the “channels of commerce.” In Walling v. Jacksonville Paper Co., supra, the Court was dealing with a defendant whose employee was definitely and actually engaged in distribution well within the channels of commerce. The point to which the Court was speaking was whether an employee engaged within the State in completing the shipment, or distributing the goods so shipped, was within the channels of commerce. There is a reference to Walling v. Jacksonville Paper Co., as cited, in Horton v. Wilson & Co., 223 N. C., 71, 25 S. E. (2d), 437, and neither [722] tbe expression referred to nor anything else in that case is at variance with tbe view here presented. In Horton v. Wilson & Co., supra, tbe defendant was engaged both in interstate commerce and in tbe local sale and delivery of goods acquired in interstate commerce after they bad come to rest in defendant’s warehouse in this State; but Horton directly participated in various ways in defendant’s interstate commerce. Tbe judgment of tbe court below is Affirmed.