James D. Hodgson, Secretary of Labor, United States Department of Labor v. Travis Edwards, Inc.

1971,11 formity date of this court in Clark it also opinion. with this Our mandate proceeded had of delay. to exhaust all avenues shall issue without appellate of that mandate. The review against Costs shall be taxed the school Supreme appli- Court denied the board’s board, appellants are allowed counsel February 22, cation for certiorari appeal $1,000. fees on this of of Little 1972. Board of Education Clark, Roсk 405 U.S. School District v.

936, 954, L.Ed.2d S.Ct.

(1972). to Since transfer students grades 4 in the eastern and west and 5 ern of Little Rock comes about sections board, through proposal of the school HODGSON, Secretary Labor, James D. courts, by approved Department federal Labor, United States Plaintiff-Appellant, orders transfer falls outside those court through Accordingly, reached we 803. deny any stay implementation EDWARDS, INC., TRAVIS Defendant- particular desegregation proce Appellee. dures. No. 71-1297. United Appeals, States Court of think it obvious that § We Fifth Circuit. apply present to mandate to cannot July 10, court, 1972.

be issued in this case this desegregation require which will Rehearing Rehearing En Banc grades primary the first in schools three 17, Aug. Denied 1972. sec located the eastern and western Certiorari Denied Dec. part tions of Little Rock. See 93 S.Ct. 685. implemen require full mandate will beginning until 1973- tation yеar. Thus, if the term even 74 school appeals,” should be “all as used application to an construed include grant Supreme for a certio Court

rari, ample time to the board will have Supreme Court.12 test our action part, part, reverse affirm We district and remand this case to proceedings in con- further court ginning year; meeting the 1972-73 school as cur- constitutional standards * ** (5) require rently Ed- Appellees the Board оf [Brief construed.” steps arrange ucation to take immediate at 2] transportation necessary for the under the case, opinion said In our we plan, application and to make for such part: may state be available or federal funds as the District remand this matter We * * purposes for such *. [449 ‍​‌​‌‌‌‌​​‌​​‌​​​​‌​‌‌​‌‌​​​​​​​‌‌​​‌​​​‌​‌​​​​‌‌‍(1) require instructions: Court with 499] plan submit a the Board of Education to parties unitary sys- no briefs 12. The have submitted the establishment of a intеrpretation elementary and con- directed to District tem to the schools 1971; limit our com- We struction no later than November Court applicability that section require ments to the (2) the Board of Education precise presented implement plan possible circumstances to the extent judgment fully appeal. year as to during We make no school and to current constitutionality implement plan of this sectiоn. the be- no later than Nash, Peter Labor, G. S. Sol. U.

Dept, Labor, Washington, C., Bev D. Regional erly Worrell, Sol., R. Edwin G. Salyers, Dept. Labor, Atty., At U. S. lanta, Margolin, Ga., Ann Bessie Carin Clauss, Player, Atty., S. Mack A. U. Dept. C., Labor, Washington, D. plaintiff-appellant.

Larry Boren, Lesh, Purnell, Locke, M. Laney Tex., Harry Neely, Dallas, R. & Nelson, Shreveport, La., for defendant- appellee. TUTTLE, Before INGRAHAM Judges.

RONEY, Circuit

Judge: TUTTLE, Circuit appeal question involves the

whether the Fair Labor applies Act Standards Henry C. 20-story building Building, Shreveport, Louisiana. The located court held this office build- district ing operation “enterprise an was not or the mean- for commerce” within the therefore, and, de- of the Act fendant, Edwards, own- Travis er-operator building, not be could Finding comply required therewith. employees cov- the defendant has Act, ered we reverse. (1) brought employees; (2) Office of Labor personnel (maids, porters, La- maintenance 17 of the Fair action under Section 3 (3) park employees); enjoin Ed- Travis and boiler room ing Act1 to

bor Standards attendants; (4) violating stand the minimum lot concession wards, wage, from single employees;4 (5) overtime, record-keeping ‍​‌​‌‌‌‌​​‌​​‌​​​​‌​‌‌​‌‌​​​​​​​‌‌​​‌​​​‌​‌​​​​‌‌‍re- maid/ele operator. opin with- We are of quirements vator “en holding unpaid wages ion that be the office which would gaged produc employees in or in the if the office commerce due certain is, goods enterprisе. tion It for commerce.” a covered were stipulation therefore, unnecessary us to consider a for was submitted on case remaining employees it not in did whether the admits that facts. Defendant categories engaged employees pay since keep four so all of its records nor they become, requirements virtue of office em with the the in accordance upon ployees’ engagement Secretary, commerce,, a em Act, in thus the the showing and building opera- ployed enterprise in a covered and that the subject enti- entitled to would be the benefits of Act. tion is the tled the relief he seeks. to following We note the facts. Defend- coverage Inc., Secretary’s Edwards, ant Travis is a Louisiana claim of “enterprise” provi- corporation headquartered in Act’s Shreve- based on the Henry port, sions, the in amendments situs of the as contained the C. (80 Beck, 65) Building. Henry (75 president, and 1966 Stat. Its Stat. C. shareholder, covered who is a Prior 1961 the Act also director and to only employees Dallas, en- themselves resides in Two of- who other were Texas. production corporation, gaged in ficers themselves di- in the commerce goods shareholders,, commerce. The rectors and likewise live for in- out-of-state, At- in and one in amеndments extended one Dallas employed any employee lanta, Georgia. in clude who am,enterprise engaged inor in commerce respect employees With to the office commerce, goods for stipulated the employees regularly reveal that facts employee himself or not the customarily and engaged. so performed bookkeep- various clerical and including ing preparation duties and amendments a Under the covered making deposits, ledgers, of rent bank terprise employees “en- has one which payable. accounts receivable and in or in commerce * * * daily weekly fig- includ- “These and and facts ing employees handling, selling, or oth- re- ures are then assimilated into three ports, working copies of are mailed erwise that have been Henry produced Beck, President, in or C. Travis Ed- moved commerce.” 203(s).2 Inc., Texas, wards, Dallas, month. U.S.C. The issue before each Building us, then, is whether the Beck following: reports “These included the employees has involved in commerce managers “(1) Building prescribed by owners and the manner the Act. We report. mainly reflects association think it does. balance, profit loss state- and the ment, breakdown, appeal operating expense On this Building employees summary grouped payroll, a the Beck schedule categories, expenses parking separate receipts into lot. five wit: and seq. regularly et “handled” 29 U.S.C. These material, paper cleaning used and/or requirement 2. An additional is that light bulbs, towels and etc. gross business have annual sales excess $500,000. 203(s) operated (1). was 29 U.S.C. 4. This concession stand Defendant admits that the requirement.' until was sold Beck Build- two operation meets this statutory clearly Receipts “(2) definition encom- and disbursements category passes reports receipts each the various mailed to which show rent, parking lot and out-of-state officers and directors and such as Edwards, stockholders include Travis of disbursements which amount reports payroll question expenses information. such are without since among report January 1, re- transmissions or communications Prior argues expеnses However, receipts the states. defendant flected use of the here is inci- mails stand. concession purely local - dental of a showing “(3) monthly analysis A rent or in communi- business effect that such paid pay. A tenants or failed involve of busi- cations must some sort analysis copy of is also for- the rent activity profit-making order ness or officers, following direc- warded to the apply. not do the Act While we defendant, tors stockholders perceive requirement statu- Travis-Edwards, any tory would event definition we (a) Davis, Dallas, Texas. Mr. Wirt agree corporation such as that what a Atlanta, (b) Hutchison, Mr. B. Joe paying it em- this one finds worth its Georgia.” ployees a to consume do and which must inquiry Our is directed to whether portion of their on the substantial time “engaged in com- are job part profit- is not a of business’ that for in of merce or the making activities. Though plаin that commerce.” it is cov- upon Moreover, even the as erage will not here de- under the Act be sumption may require statute that the Building ten- rived what the mailing something more than the mere do, dealing with ants the line of cases paper lines, aof across state neverthe coverage5 is nonetheless such derivative expressly less this court has disavowed directly bearing on what relevant profit profit notion a thе that or motive meaning here, e., of the involved the i. must attach to interstate communica “engaged “en- terms in commerce” and satisfy tions in order the commerce of for requirement the In PBA Bir of Act. of commerce.” mingham Goldberg, supra, v. the inter course, pivotal question Of the state communications consisted of Social regular exists, ad- there the Security recipients checks mailed out to Building, ministration of the Beck an el- in several noted that court states. ement of “commerce” sufficient to meet grasp while it was difficult the con statutory requirements. the think it We cept government employee that a work here, plain that if is “commerce” there Security pro on a claim Social was “engaged” the it office ducing goods commerce, “partially (by regular virtue of their interstate generally because commercе has a conno person- communications with executive profit,” tation of business neverthe nel) producing “goods” for and/or profit “no motive less there need be commerce. v. A. See Wirtz S. Giometti present (em constitute commerce.” (CA Associates, 399 F.2d 738 phasis supplied). 370; 298 F.2d 367 5, 1968); Birmingham PBA Gold- of v. Realty Co., see also Allen Atlantic su v. berg, (supra). pra. by Supreme “Commerce” is defined Section E. Court case of Ten 3(b) “trade, cоmmerce, Company Callus, Act as the 40th Street v. U.S. transmission, transportation, or commu- (1944), 1227, 578, 65 S.Ct. 89 L.Ed. among nication think, light prop- upon the States.” several we throws the no literally (emphasis supplied). disposition Taken er The claim case. Walling, 1962) (CA 5, ; 5. Kirschbaum v. Allen v. At U.S. 1638; Realty (CA Co., S.Ct. L.Ed. Public Build lantic 384 F.2d 527 ing Authority Goldberg, Birmingham manager building based the case was local of the was for upon in that director, also an interstate busi- officer and it is com nature of the knowledge corporate presi of- mon tenants ness carried on ordinarily responsible building. some indicated dent degree The court fice building management typical with the success and was a office being corporation. And, variety course, tenants, locally operated, responsible locally and directors are action owned president supervi being transac- no interstate overall there shown policy guidance corporate any sion and af kind tion therefore, building. assume, fairs. between We cannot distinction obvious; operating reports this is here that the no rela case and employees have regularly Edwards tion business matters in a broad sense of Travis by concerning Building. Though engage in interstate communication the Beck reports, may operating these value, intrinsic means preparation documents have no corporate requires a consid- and are for internal use of which only, they are, view, time. our nonetheless erable amount of their unexaeting sufficient to meet the stand Rather, situation think the we statutory ards of the definition “com analogous closely Allen here more (i. e., merce” “. . transmission or . Realty Co., supra, in which v. Atlantic among states). In communication” necessary element this court found the supported this conclusion we are pre material executive (C. Falk, case Shultz v. pared interstate in Atlanta to be sent 4, 1971), A. cert. denied in which Bell, agents employees of and Southern Appeals Court of for the Fourth Circuit occupied company a substantial a that held that under similar circumstances part building concerned. of the office mailing reports operating the out- us, anything, insofar If the before case of-state owners least element was at one applicability is con as the cerned, of the Act in the case satisfied the commerce which stronger Atlan is even than the requirement. Realty the case tic coverage case because in that conclude, therefore, We the office that of a activities was based the employees “engaged or are in commerce building, here the tenant of whereas the goods in the for com- corporation employees it of the Ed- merce.” It follows that Travis engaged in activities. self are interstate wards, “enterprise” and is a covered pure course, Of of interstate the volume employees, that all its or our deci communications irrelevant to they in com- themselves are involved de minimis rule sion there no since wage merce, hour are and covered the respect application the with provisions of the Act.6 Kip’s Big Boy, 431 F.2d Act. Schultz v. judgment The and the case reversed (C.A. 1970); Montalvo v. see also proceedings con- remanded for further (C. Building, Life Tower opinion. sistent with this 1970). 5,A. reports sum, In note that we the Judge (dissenting): RONEY, Circuit dealing we are are such a nature with wrong majority presi to hold required I think as sent to the the are be employees en- are corporation defendant’s officе that dent the and two out-of- gaged Although and the commerce state directors. the record commerce, many mean- within the does not other direc disclose how Act, be, indicating only may that of the Fair Labor Standards tors there operated employees Building who Beck We note that the concession stand was being prior January, party its concession stand leased to a third Thus, unpaid employees, any, baсk to recover third leased are entitled if this wages party However, provided in the Act. ‍​‌​‌‌‌‌​​‌​​‌​​​​‌​‌‌​‌‌​​​​​​​‌‌​​‌​​​‌​‌​​​​‌‌‍as are not covered. they us, solely by employer’s fact that case before virtue of the since busi operating reports activity prepare aof and mail ness has no direct connection purely all, out-of-town di- local business with cannot interstate found em officers. Travis Edwards’ rectors and be that ployees perform support duties or which Secretary argues reports that The any aid in interstate business. employees state mail across holding “goods” 3(s) The Court converts an lines under are so otherwise local business into an inter- that the office workers merely corpo- “production state business because its president Alternatively, rate asserts directors and live outside commerce.” he state, “engaged they state. If lived in the office 3(s). there is little doubt that in commerce” under Building the Beck would be held to be held In certain circumstances have we majority local business.4 The concedes materials documents written that the cannot be derived here “goods” as Act uses that can be from the interstate activities of term,1 who mail that office workers Building tenants, and that “engaged in such materials can be Building does not fall the Public within be commercе.” But those cases cannot Authority Birmingham line and Allen authority as in this used a decision supra. of eases. notes 1 See every cases, those other case. In very argument presented by Secretary where case cited us The reports the Third was before such documents and were deter here (s) provide case of v. Wel mined to basis for Circuit Stevens Wagon coverage, employer International, F. come transacted some (3rd 1968). portion plaintiff 2d 75 of its in interstate com Cir. business Pennsylvania was a resident who were found case merce. Wagon operated performed who service Welcome “an covered essential be entirely scope integral employer’s] local its part which was inter of [the however, Co., operation. required was, She state Wirtz Wohl business.” Shoe monthly (5th daily, weekly, re In submit 382 F.2d Cir. Associates, customer) ; prospects Wirtz 1. Wirtz v. A. Giometti & these S. (5th Inc., (5th 1968); Corp., 21 v. 336 F.2d F.2d Pub C&P Shoe 399 738 Cir. Birmingham Authority 1964) (substantially Bldg. v. Cir. all shoes lic of Gold (5th by berg, employer from out-of-state F.2d 367 Cir. sold came 298 manufacturer’s) ; suppliers Mitchell and Bldg., 2. F.2d Montalvo v. Tower Life 426 (8th Kroger Co., Cir. v. 248 F.2d 935 1970) (5th ; Allen Atlantic 1135 Cir. v. operates (employer grocery 1957) interstate Realty (5th 1967), Co., 384 F.2d Cir. 527 ain) ; of Little Union Nat’l Bank ch Rock, 1185, denied, 989, 88 cert. 390 U.S. S.Ct. Durkin, (8th Ark. v. (1968). 19 1294 L.Ed.2d 1953) “large quan (bank Cir. handled (5th Inc., Valco, checks, stocks, bonds, F.2d Wirtz v. 407 1322 and com tities” of F.Supp. (S.D. 1969), aff’g paper shipped points 280 449 Cir. from mercial to and (small company operated Tex.1968) Light state) ; Cooperative loan out Meeker supplied Phillips, lend with funds out-of-state 158 F.2d Ass’n v. and Power er) ; Co., coopera (electric (8th 1946) F.2d Wirtz v. Wohl Shoe 382 698 Cir. operated (5th 1967) (employer upon provided power 848 Cir. interstate tive states) ; depended). in 42 Credit retail shoe outlets businesses Fleming, (5th Serv., Inc. v. F.2d 143 372 Callus, Bldg., employer’s 1967) (11% v. Street business 10 East 40th Cir. 1227, 1229, 583, customers); 578, 325 65 S.Ct. оut-of-state Benef U.S. was with (1945) (“Renting Wirtz, v. L.Ed. icial Fin. 346 89 1806 Co. of Wisconsin building exclusively 1965) space (7th (employer set aside in a was Cir. 340 variety office work finance an unrestricted branch sys interstate consumer office of Wardlaw, spontaneously tem) ; un satisfies common Wirtz 339 v. derstanding (4th 1964) (employees local business of what is F.2d 785 Cir. clippings a build makes and ing engaged mailed cards and out-of-state business.”). prospects, in local aim with of obtain- business 1056 interpretation finding ports company in Tennessee in favor of offices cov- analyzing Court, in erage The York. New the issue “commerce,”

plaintiff’s with connection employee engaged an in commerce quote appropriate follow found by applying practi- should be decided ‍​‌​‌‌‌‌​​‌​​‌​​​​‌​‌‌​‌‌​​​​​​​‌‌​​‌​​​‌​‌​​​​‌‌‍ing language Mitchell v. Welcome F.Supp. standards, cal rather than technical (W.D. Wagon, Inc., 674 139 Co., Mitchell & v. C. W. Yollmer 349 (6th Cir. Tenn.1954), 892 232 F.2d aff’d 860, U.S. S.Ct. 99 75 L.Ed. 1956): (1954), 1196 but it self evident d Dеfen with “The communications appellant’s the record before us that including the offices, divisional ant’s regard- activities were local nature executory serv rare transmittal postal less of her communications with internal, and purely contracts, are ice appellee’s City York Mem- New daily reports sent like confidential phis ap- accept Nor can we subscribers, incidental offices. by the performed pellant’s services the local she contention that was records, reports and employee. The goods have no value contract the service See, commerce. Mitchell v. Welcome They Defendant’s not their own. Wagon, supra, F.Supp. 139 at sell not does objective Defendant page 679 and cases cited therein.” preparation and goods. Their them as business transmission incident reasoning I think that the Third comprise the purpose not does whose production applies equal Circuit in Stevens with all, con do not presented force to here.5 the situation production of engaging in the stitute ‘goods.’” [cita Finding employee group F.2d at that no other omitted]. tions engaged in commerce defendant concluded: then for commerce Court meaning Act,6 within the of the I would Labor Fair realize “We given a liberal Act is to be affirm District Court. Standards decision F.Supp. (M.D.Fla.1969) ; Irby (4th Falk, v. F.2d 340 Cir. Shultz v. majority relies, Davis, F.Supp. (E.D.Ark.1970) ; upon 1971), which the reports Co., F.Supp. Mayer point were not in here. There Wirtz Constr. business, (D.N.J.1968). but mailed to owners party to third customers business. support cites no cases purpose of the business was Part of the argument concerning parlcing lot engage in these interstate communica- attendants and the contention tions. “goods” handled automobiles are beyond any rea- far reaches employer 6. The is the consumer of interpretation sonable Statute. soap, towels, light wax, paper bulbs, and repair other concession and maintenance items man As to the stand, they relationship state ufactured outside of the bear no building employees, maintenance busi “handled” the defendant’s making applicable thus in Wirtz v. “ultimate con ness was found Savannah Co., (5th еxception, 3(i) sumer” F.2d contained Bank & Trust 362 857 1966) ; and the cases of v. Wirtz v. Columbian Mut. Shultz Cir. F.Supp. (S.D. (6th Bldg., Inc., Co., Wilson F.2d 903 Cir. 320 Life Ins. 380 664 Tex.1970) Neely, ; 1967) ; Nat’l Bank & Shultz v. Arnheim & v. First Wirtz (10th ; F.Supp. (W.D.Pa.1969) Co., 641 324 Trust 365 F.2d Cir. Sherry best, Corp., cf. concession stand was Mitchell v. Corine At distinguish (4th 1959), to the customers of Cir. a small convenience ing and was not related activi this ease from the facts the follow 3(r). Secretary: ty meaning within the See cases relied on Falk, (4th Shultz v. Cir. C.F.R. 779.211. 1970) Corp., operator ; could The maid-elevator Wirtz v. Melos Constr. “еnterprise” impart (2nd 1969) ; v. alone F.2d 626 Cir. Shultz Petersburg, Union Bank of business. Trust St. REHEARING ON PETITION FOR

AND PETITION REHEAR- FOR EN BANC

ING PER CURIAM: Rehearing is denied The Petition for Judge panel and no member of this nor regular on the Court active service having polled requested that the Court be banc, (Rule rehearing Federal en Appellate Procedure; Rules of Local 12) Fifth Rule the Petition Circuit ‍​‌​‌‌‌‌​​‌​​‌​​​​‌​‌‌​‌‌​​​​​​​‌‌​​‌​​​‌​‌​​​​‌‌‍Rehearing En Banc is denied. America, UNITED STATES Appellant, Anthony Gordon Vincent EASTMAN and * Tony Heston, Hueston a/k/a a/k/a Tony DeJest. 71-1643, Nos. 71-1644. Appeals, United States Court of Third Circuit. Argued Dec. April 5, Submitted Aug. 8, Decided * spelled ways documents, Hueston in various in various but he was indicted “Hueston.”

Case Details

Case Name: James D. Hodgson, Secretary of Labor, United States Department of Labor v. Travis Edwards, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 18, 1972

Citation: 465 F.2d 1050

Docket Number: 71-1297

Court Abbreviation: 5th Cir.