Appeal from the District Court of the United States for the Northern District of Oklahoma, Franklin E. Kennamer, Judge
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
Appellants brought this suit against their former employer, The National Bank of Miami, Oklahoma, to recover unpaid overtime compensation, liquidated damages, and attorney's fee, as provided by the Fair Labor Standards Act of 1938, 52 Stat. 1060-1069, 29 U.S.C.A. §§ 201-219. The trial court held that the employees were not covered by the Act, entered judgment for the employer, and the employees have appealed.
The appellee bank owns and operates a six-story office building in Miami, Oklahoma. With the exception of a small lobby, the entire first floor is used by the appellee for the purpose of engaging in a national banking business. All space above the first floor is leased to vaious tenants and access to this part of the building is by use of said lobby, where appellee maintains and operates two electric elevators, which are used to convey the tenants and the public to and from the offices located on the upper floors. At various times during 1938, 1939, 1940, and 1941, the appellants were employed as elevator operators to work alternate work weeks of 42 and 46 hours, for which they were paid § 5 per week.
The tenants, leasing space from appellee, during the years in question, were engaged in various businesses and professions, but those whose business activities related in any way to interstate commerce were: the executive and administrative offices of a mining and smelting company, engaged in operating lead and zinc mines in Oklahoma, Kansas, and Missouri, from which mines lead and zinc ore moved in interstate commerce; the executive offices of arailroad company, whose trains moved in interstate commerce; the offices of a company engaged in the sale of chat and crushed rock in Oklahoma and other states, small samples of which were occasionally mailed from this office interstate to propective customers, but the majority of such samples were shipped direct from the company's plant, located elsewhere; an attorney at law, who also owned a certain patented office device which he infrequently shipped interstate to purchasers from a supply retained in his law office, but the majority of such shipments were made from his residence; the office of an abstract company who prepared and delivered abstracts interstate; a sales office for the LaSalle Extension University, the educational courses of which were sold and conducted through interstate communications; the office of a salesman for the DuPont Company, which sold powder and other explosives interstate; a firm of brokers, who sold stocks and bonds throughout the coutnry, and the proviate office of the bank's inactive president. The space occupied by the foregoing tenants represented approximately 51 per cent. Of the occupied space in the building and approximately 40 per cent. of all space. Some of the tenants in the building were depositors of the appellee bank, and they of course, used the elevators while going to and from the banking establishment, located on the first floor, for the purpose of transacting their banking business.
Our problem is to determine whether the appellants, as operators of the elevators in this building, were "engaged in commerce or in the production of goods for commerce," as those phrases are used in Sections 6 and 7 of the Fair Labor Standards Act, 29 U.S.C.A. §§ 206, 207.
There is no fixed formula by which the courts can ascertain with exactitude whether the employee is "engaged in commerce or in the production of goods for commercie," but the decision in each case must turn upon the attendant facts. However, thus far the judicial process has developed certain fundamental precepts to guide us in the determination of coverage under these phrases. Namely, Congress did not intend to exercise the full scope of its commerce power, but plainly indicated its purpose to leave employment essentially local in character to state control.*fn1 Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. 1638, Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S. Ct. 332, 87 L. Ed. , Jewel Tea Co. v. Williams, 10 Cir., 118 F.2d 202. Moreover, the phrases "engaged in commerce or in the production of goods for commerce" are not synonymous but supplementary to each other. They were deliberately chosen as appropriate language to delineate entirely different fields of coverage under the act. Furthermore, coverage under either phrase of the act depends upon the character of the employment and not the nature of the employer's business, Kirschbaum Co. v. Walling, supra, Walling, v. Jacksonville Paper Co., supra, and the burden is upon the one asserting coverage to show that the employee is engaged either in commerce or in the production of goods for commerce, without regard to the business of the employer. Warren-Bradshaw Co. v. Hall, 317 U.S. 88, 90, 63 S. Ct. 125, 87 L. Ed. , and Stoike v. First National Bank, 290 N.Y. 195, 48 N.E.2d 482, certiorari denied 64 S. Ct. 50, 88 L. Ed. .
Specifically, we are urged to hold that these employees, as elevator operators, were engaged in the production of goods for commerce on the authority of Kirschbaum Co. v. Walling, supra. In that case the court held that elevator operators and other building employees were engaged in the production of goods for commerce, because the services which they performed were so closely and intimately associated with the actual production of goods for commerce as to be in reality a part of the process. There, concededly, the tenants occupying the building were actually engaged in the production of goods for interstate commerce, and the elevator operators in the building ran both the freight elevators which started and finished the interstate journeys of goods going from and coming to the tenants, and the passenger elevators which carried employees, customers, salesmen and visitors. In holding that elevator operators, under these facts, were engaged in the production of goods for commerce, the court said [316 U.S. 517, 62 S. Ct. 1121, 86 L. Ed. 1638]: "in our judgment, the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation 'necessary to the production of goods for commerce.'" But, the court significantly observed that the criterion was necessarily one of degree and must be so considered in defining coverage under the phrase "production of goods for commerce." See, also, Warren-Bradshaw v. Hall, supra; Walling v. Patton-Tulley Transp. Co., 6 Cir., 34 F.2d 945; Hanson v. Lagerstrom, 8 Cir., 133 F.2d 120, and Consolidated Timber Co. v. Womack, 9 Cir., 132 F.2d 101.
But the facts before us which bear upon the phrase "production of goods for commerce" are only remotely analogous to the facts in the Kirschbaum case. The exectuive and administrative offices of the mining and smelting company were located in the building serviced by the elevator operators, and this company was deoubtless engaged in the production of goods for commerce, but it is not shown on this record whether any of the goods were produced in the buiding, or that any of the employees transported to and from the offices are directly or indirectly engaged in the production of the goods. The same is true of the chat and crushed rock company, and the abstract company, which produced abstracts, some of which were shipped in interstate commerce. In any event, the relationship is not shown to be "close and immediate." Under these facts it cannot be said that the activities of the elevator operators were an essential part of, or necessary to, the production of goods for commerce.
It is, also, urged that the employees come within the coverage of the phrase "engaged in commerce," chiefly because they are employees of a national bank, which they contend is engaged in commerce, and for the reason that certain tenants, serviced by the elevators they operate, are "engaged in commerce."
As an appropriate criterion for the interpretation of the phrase "engaged in commerce", used in the Fair Labor Standards Act to measure coverage, the courts have adopted the judicial construction of the similar phrase "employed * * * in such commerce" used to measure coverage under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. § 51.*fn2 See Overstreet v. North Shore Corp., 318 U.S. 125, 63 S. Ct. 494, 87 L. Ed. ; McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 1538; Walling v. Patton-Tulley Transp. Co., supra, and Consolidated Timber Co. v. Womack, supra.
In Overstreet v. North Shore Corp., supra, the Supreme Court in measuring coverage under the phrase "engaged in commerce," embraced what it deemed the "practical test," announced in Pedersen v. Delaware, Lack. & West. R.R. 229 U.S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and Philadelphia, B. & W.R.R. Co. v. Smith, 250 U.S. 101, 39 S. Ct. 396, 63 L. Ed. 869, construing the phrase "employed * * * in such commerce," as contained in the Federal Employers' Liability Act. Those cases announced the rule that an employee was deemed to be "employed * * * in such commerce" when the employment was so closely and intimately related to interstate commerce as to be in practice and legal contemplation a part of it. Applying this "practical test" to the phrase "engaged in commerce" the court held in the Overstreet case that the seller of tickets on a toll bridge, over which interstate traffic moved, and the operator of the draw bridge, which was raised to permit passage of interstate water traffic,as well as the maintenance and repair man on the said bridge, were "engaged in commerce," within the meaning and scope of the Fair Labor Standards ACt. See, also, Pedersen v. J. Fitzgerald Const. Co., 318 U.S. 740, 63 S. Ct. 558, 87 L. Ed. .*fn3
In Overnight Motor v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682, the Supreme Court had no difficulty in holding that a rate clerk, employed in the office of an intersta te motor carrier, was a transporta tion worker engaged in interstate commerce within the meaning of the act, and in Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S. Ct. 332, 335, 87 L. Ed. , the court held that it was the purpose of the act to extend federal control under the phrase engaged in commerce "through-out the fartherest reaches of the channels of interstate commerce," and that if a substantial part of an employee's activities related to goods whose movement in the channels of interstate commerce was established, the employment was covered by the act. But, in the more recent case of McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 1253, 87 L. Ed. 1538, the Supreme Court adopted and applied a somewhat different notion of the phrase "engaged in commerce."*fn4 In that case it was held that the phrase included every employee in the "channels of interstate commerce," but limited coverage to activities actually in or so closely related to the "movement of the commerce" as to be practically a part of it. This concept of commerce is likewise bottomed upon decisions of the Supreme Court construing the phrase "employed * * * in such commerce" in the Federal Employers' Liability Act. Shanks v. Dclaware, L. & W.R. Co., 239 U.S. 556, 36 S. Ct. 188, 60 ...