William J. Johnston v. Spacefone Corporation

RONEY, Circuit Judge,

dissenting:

I respectfully dissent. Since the employer never produced goods for commerce, Johnston could not have been engaged in such production. This case is unlike those relied upon by the Court which hold that where the employer is engaged in the production of goods for commerce, the support personnel, so to speak, are engaged in that effort, even if they are engaged in research and development, maintenance, or office and administrative work. E.g., Borden v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945); Tormey v. Kiekhaefer Corp., 76 F.Supp. 557 (E.D.Wis.1948). In those cases the employees’ activities contributed in some way to the employers’ actual production of goods for commerce.

Here, however, Spacefone Corporation was formed for the sole purpose of developing and marketing a cordless extension telephone. It never accomplished that, nor did it manufacture and sell any other product. Thus plaintiff never aided in any way, directly or indirectly, the production of any good sold in interstate commerce. Even under the most expansive interpretation of the statute, he was not “engaged in the production of goods for commerce.” 29 U.S.C.A. §§ 206-207.

Nor was Johnston engaged in interstate commerce, even if his employer was not, to bring him within the principle of Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 211, 79 S.Ct. 260, 263, 3 L.Ed.2d 343 (1959). Johnston introduced evidence that he spent a substantial amount of time using an instrumentality of commerce, the telephone, in connection with his job for Space-fone. The regular and recurrent use of the mails and other channels of communication by an employee as a part of his duties is sufficient to demonstrate that the employee is engaged in commerce, Montalvo v. Tower Life Building, 426 F.2d 1135, 1143-44 (5th Cir.1970), but “[tjhis does not mean that any use by an employee of the mails and other channels of communication is sufficient to establish coverage.” 29 C.F.R. § 776.10(b) (1981). The trial court found that Johnston’s interstate telephone calls “were not part of his regular duties, were incidental to his primary employment, and did not constitute a substantial portion of *1184plaintiffs time.” 4 While the amount of usage is not determinative, utilization of the channels of interstate communication must be a regular and recurrent part of the employee’s responsibilities under Montalvo and 29 C.F.R. § 776.10(b) (1981). The trial court’s finding of fact is not clearly erroneous. Johnston failed to prove he was “engaged in commerce.” 29 U.S.C.A. §§ 206-207.

I would affirm.