Rosenberg

Appellants in these cases are a co-partnership maintaining an establishment for the performance of janitorial services for owners and lessees of apartment houses, office buildings, and the like. The services are rendered on a contractual basis. Among those having contracts with appellants are Wells-Fargo Bank & Union Trust Company, the American Trust Company and the Anglo California National Bank of San Francisco. These banks are substantially engaged in interstate commerce, 1 - although the greater part of their banking business is intrastate in character.

Appellees are laborers employed and paid by appellants to do the janitorial work in these banks pursuant to the aforementioned service contracts. They sweep, mop and dust, empty wastepaper baskets, polish cuspidors, clean toilets and wash down the walls thereof, vacuum rugs, empty ink wells, sweep the sidewalks, etc. A few are employed in janitorial work in and about a cafeteria operated by one of the banks exclusively for the use and convenience of its own employees. Claiming to be entitled to the benefits of §§ 6 and 7 of the Fair Labor Standards Act, 2 they sued appellants for overtime wages. The trial court granted…

(dissenting).

There seems no difference between removing the discarded papers used in the interstate banking transactions, cleaning the ink wells after their use in writing and signing such documents, making habitable by janitorial services the premises necessarily required to perform such interstate transactions and the functions of the railway gang which cleans the passenger coaches carrying persons interstate. Both appear services necessary to the conduct of interstate business. In both cases they are engaged “in actual work upon the transportation [interstate] facilities” as that phrase is used in McLeod v. Threlkeld, 319 U.S. 491 , 63 S.Ct. 1248, 1250 , 87 L.Ed.-, (June 7, 1943).

Merely cooking food for the men who maintain an interstate right of way seems a step substantially removed from cleaning the cars used in such transportation. Because an interstate bank’s premises are immobile and the cars move is no ground of distinction. For an analogy to support the majority opinion the Supreme Court would have to hold that one employed in the cleaning of railway tools and tool houses, both facilities of the maintenance of way men, was not serving interstate commerce.

The…