Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before MARIS, GOODRICH, and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a civil action by a building service employee against his employer, the owner of the building, for unpaid minimum wages, ovedrtime compensation, liquidated damages and counsel fees under the Fair Labor Standards Act of 1938.*fn1 The plaintiff was a caretaker or janitor of the building which contained six apartments, a garage and two stores. One of the stores was occupied by a tenant who was engaged in interstate commerce in shipping automotive parts, by mail, to points outside the Commonwealth of Pennsylvania. The District Court, on defendant's motion, dismissed the complaint of the ground that it did not state a cause of action under the Act because it did not disclose that the plaintiff was engaged in interstate commerce or in the production of goods for interstate commerce. The appellant argues alternately, - 1. That he was engaged in the production of goods for commerce; 2. That he was engaged in commerce; or 3. That the issue is one of fact to be decided by the court below only after a full trial.
On his first point the appellant urges that he comes under Section 3(j) of the Act 29 U.S.C.A. § 203(j) which reads:
"'Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed inproducing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State."
In support of this proposition it is suggested that the word "handled" in the Act includes the wrapping and mailing of a finished product by a merchant, such as the tenant here.Kirschbaum v. Walling, Arsenal Building Corporation, 1942, 316 U.S. 517, 62 S. Ct. 1116, 1121, 86 L. Ed. 1638, is cited as sustaining this thought. That decision stands for no such doctrine. There the tenants were manufacturers of clothing for interstate commerce and the service employees in the two buildings involved, functioned for the benefit of those manufacturers. The Supreme Court held that: " 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 eomployees are to be regarded as engaged in an occupation necessary to the production of goods for commerce.'"
Walton, Adm'x, v. Southern Package Corporation, 320 U.S. 540, 64 S. Ct. 320, 321, follows the Kirschbaum opinion. In that case a night watchman for a manufacturing plant was held to "make a valuable contribution to the continuous production of respondent's goods." Regarding the relationship of the watchman's employment to production, Mr. Justice Black said at page 543 of 320 U.S.., at page 321 of 64 S. Ct. that it:
" * * * had that 'close and immediate tie with the process of production for commerce' which brought him within the coverage of the Act."
Nor is Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S. Ct. 125, 87 L. Ed. 83, of any help to the plaintiff. That suit concerned employees of an independent contractor who partially drilled oil wells which wells were later "brought in" by other workmen. Part of the oil obtained mvoed in interstate commerce. The Supreme court held at page 91 of 317 U.S., at page 126 of 63 S. Ct., 87 L. Ed. 83:
" * * * they were engaged in a 'process or occupation necessary to the production' of oil."
" * * * drilling a well is a necessary part of the productive process to which it is intimately related."
Under the present facts the manufacture of the automotive parts had been concluded prior to the parts being received by the tenant at all. There was nothing he did with them, that rendered them any more complete or that was intended to be an operation necessary to their final development. He merely wrapped and mailed out the merchandise in exactly the same condition as it was when turned over to him. He was in no way connected with the process of production of the automotive parts themselves.
Plaintiff's next contention is that he is in interstate commerce because of his relationship as janitor or caretaker, of the building, with the particular tenant who admittedly is so engaged. The most recent opinion of the United States Supreme Court on this general subject is McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 1538. There, the employee was a cook who prepared ans served meals to maintenance-of-way employees of an interstate railroad under a contract between his employer and the railroad company. The court, ...