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April 16, 1953

TOBIN, Secretary of Labor

The opinion of the court was delivered by: BYERS

This is an action (complaint filed August 26, 1949) under the Fair Labor Standards Act for an injunction against the defendant for failing to make, keep, etc. adequate and accurate records of its employees and the wages, hours and other conditions, etc., of the Act by reason of the allegedly repeated violations thereof, which the plaintiff asserts. The case does not turn upon any issue of failure to pay wages according to the statutory rates.

The requirement as to records, 29 U.S.C.A. § 211(c), is:

 Every employer subject to any provision of sections 201-219 of this title or of any order issued under said sections shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of sections 201-219 of this title or the regulations or orders thereunder.'

 The employees of the defendant concerning whom the plaintiff complains of a failure to adhere to the foregoing are:

 Watchmen (4);

 Electrician (1);

 A maintenance man (not in the employ of the defendant when this action was started); and

 Office employees.

 The principal, if not the only, argument is made concerning the watchmen, and their status is to be understood in light of the following circumstances which are undisputed:

 The plaintiff is the owner of a considerable parcel of land fronting on the Brooklyn side of the East River with about 20 buildings, which it leases to various tenants; the extent of the property can be understood by consulting Plaintiff's Exhibit 1.

 These several premises are the subject of written leases running from the defendant to the tenants, which are uniform in respect of a provision to the effect that the landlord provides no services whatever in connection with any building or any part thereof; there is no testimony of any departure from that condition with the exception of occasional activities of the maintenance man who was concededly not in the defendant's employ when the complaint was filed.

 It is undisputed that many of the tenants are engaged in interstate commerce or in the production of goods for interstate commerce and the character of the occupancy as so described is not the subject of controversy.

 Such commerce moves into, through and out of the properties owned by the defendant in motor trucks and freight cars operated by the Jay Street Connecting Railroad, a common carrier engaged in the transfer of railroad cars and contents, which cars arrive on floats at the pier or piers shown on Exhibit 1. That railroad is an entirely separate corporation from the defendant, and rents a right of way from it consisting of land on which the railroad has installed and maintains trackage, switches, loading platforms and equipment and rolling stock. Access to the railroad facilities is obtained directly from city streets adjoining the property, which streets also afford access to other portions of the defendant's property.

 The testimony is that the stockholders in the defendant are not the stockholders in the railroad, and the officers are not common to both corporations. It is necessary to keep this distinction in mind because of the obvious effort on the part of the Government to argue (contrary to the proof), that the watchmen in question perform services for both corporations, and therefore the above record keeping requirement should be construed as though there were no legal and substantial distinction between the two corporations.

 Since the status of the watchmen is the only material matter in controversy, primary consideration will be given to what the testimony shows concerning them, and the findings will be accordingly restricted.

 Findings of Fact.

 1. Prior to September 14, 1947, certain of the watchmen now in the employ of the defendant had been in the employ of the Jay Street Connecting Railroad, but that employment terminated on the last mentioned day for reasons concerned solely with the proper and economical administration of the carrier.

 2. From and after October 1, 1947 (except as to John Ginaitis who started in September, 1948), the four watchmen who testified in this case, namely William Dennis, James Smith, Paul Slikas and John Ginaitis, were employed by the defendant as night watchmen and their sole duty was to observe from the outside the various buildings and structures on the defendant's premises during the nighttime so as to detect, if the occasion should arise, the presence of fire ...

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