Archer v. Brown & Root, Inc.

• Citation: 241 F.2d 663
• Decision Date: 03 April 1957
• Docket Number: No. 16289.,16289.
• Parties: Wesley E. ARCHER et al., Appellants, v. BROWN & ROOT, Inc., and T. L. James & Co., Inc., d/b/a Louisiana Bridge Co., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

241 F.2d 663 (1957)

Wesley E. ARCHER et al., Appellants, v. BROWN & ROOT, Inc., and T. L. James & Co., Inc., d/b/a Louisiana Bridge Co., Appellees.

No. 16289.

United States Court of Appeals Fifth Circuit.

February 21, 1957.

Rehearing Denied April 3, 1957.

Gordon Goodbee, Covington, La., Bessie Margolin, Asst. Sol. Dept. Labor, Sylvia S. Ellison, Atty., Dept. Labor, Stuart Rothman, Sol. Dept. Labor, Washington, D. C., Lawrence P. Hochberg, Dept. of Labor, Washington, D. C., Earl Street, Regional Atty., Dallas, Tex., for appellants.

Ben H. Powell, Jr., Houston, Tex., James W. Wilson, Austin, Tex., Howard W. Lenfant, New Orleans, Lenfant & Villere, New Orleans, La., Powell, Wirtz, Rauhut & McGinnis, Austin, Tex., of counsel, for appellees.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The District Court, sustaining the Employer's motion for summary judgment, held that persons working on (a) the construction of the Lake Pontchartrain Causeway, (b) the production of materials for use in its construction, and (c) the construction of the field plant for the production of materials essential to construction of the Causeway, were not "engaged in commerce or in the production of goods for commerce * * *," 29 U.S.C.A. §§ 201, 206, and hence were not entitled to recovery of overtime and statutory penalties. A determination of non-coverage as to (a) is decisive, for (b) and (c) fall automatically with it. If coverage exists as to (a), the Employer virtually concedes (b), but vigorously asserts that (c) is still not within the Act.

(a) Construction of the Causeway

Since the Causeway represented something entirely new, not previously in existence to any degree, the status of coverage depends, not on the nature of the physical operations performed by the workers, but on the nature of this project as a facility of interstate commerce. The workers, joined here (as amicus curiae) by the Secretary of Labor as a formidable ally, claim that Mitchell v. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196, means not only what it says, but what the Court later said it said, "* * This Court recently rejected the `new construction' doctrine in determining whether an employee is `engaged in commerce' within the meaning of a like provision in the Fair Labor Standards Act * * *," Southern Pacific Co. v. Gileo, 351 U.S. 493, 500, 76 S.Ct. 952, 957, 100 L.Ed. 1357, 1365, so that "new construction" is now altogether insignificant. The Employer insists that Gileo is dicta and that Vollmer merely applied, without extension, the prior law, Chambers Construction Co. v. Mitchell, 8 Cir., 233 F.2d 717, 721, Wecht, Wage-Hour Law — Coverage (1951) at page 84, that a piece of new construction was covered if, as a repair, modification, extension or improvement of an existing facility, it had a vital relationship to the functioning of such an instrumentality or facility. So read, Vollmer became no pronouncement of a new principle, but simply a reversal of our decision, 214 F.2d 132, for error in that particular case. The path, likely somewhere between these extremes, we need not mark with precision. For here, as in Mitchell v. Hodges Contracting Co., 5 Cir., 238 F.2d 380, we decline, as unnecessary and unwise, the invitation to press the full limits of "naked" new construction under Vollmer.

Lake Pontchartrain (approximately 45 miles long east to west, and 25 miles north to south) is so situated with respect to the trade and commerce area of metropolitan New Orleans, located midway on the south side, that traffic from a northerly and northeastly direction has to follow a circuitous route around the south side of the Lake. With the spectacular commercial expansion of this area, the establishment of new businesses, the construction of new extensive industrial plants and the natural influx of people, the resultant traffic congestion presented a problem of great concern to the people of this area and Louisiana. To eliminate the circuitous route, to relieve already overburdened highways on the south side and to facilitate the flow of traffic in and out of New Orleans, the Lake Pontchartrain Causeway was conceived. By acts of the legislature, Act 90, Louisiana Legislature 1952 and the organic authority of the 1952 Constitutional Amendments, amending Subsection (g), Section 22, Article VI of the Constitution of Louisiana, LSA, the Parishes of Jefferson and St. Tammany and the specially constituted Greater New Orleans Expressway Commission, their operating agency, were authorized to build this Expressway and to finance its construction by 40-year Revenue Bonds from toll charges supplemented by substantial annual amounts from State Highway Fund No. 2 which came from all motor vehicle registration fees collected by the six parishes contiguous to Lake Pontchartrain. From the interim payments into Fund No. 2, a reserve of $5,000,000.00 had actually accumulated when the construction contract was let. Out of this reserve, the State Highway Department was obligated to construct access approach roads to the Expressway. The Expressway was declared to be "a part of the State Highway System * *," Act 90, supra; 1952 Constitutional Amendment, supra.

After extensive engineering and traffic studies, the Expressway was designed — as a production indigenous to this dynamic area almost had to be — as the world's longest bridge, to run 25 miles across the Lake, its southern end in the western part of metropolitan New Orleans just inside the Jefferson Parish line as required, and the opposite end, almost due north, just west of Mandeville, Louisiana in St. Tammany Parish. To finance the contract cost of $30,677,210.00 for the Bridge and its main approaches and the further estimated cost of $2,700,000.00 for extensions beyond the south terminus, plus all other direct costs aggregating $37,102,513.00, tax-exempt Revenue Bonds totaling $46,000,000.00 were issued and sold to investors.

The project, as adopted and officially represented by the contracting Parishes, made the Expressway something far beyond a highway of local value and convenience. For the contract expressly included the construction of three separate four-lane approach roads tying the north end of the Causeway into Highway U. S. 190 to give ready access to all traffic to and from points west, east and north on this arterial interstate highway. U.S. 190 is one of the principal arteries from East Texas through middle South Louisiana and Baton Rouge terminating in U.S. 11, a north-south highway and U.S. 90, an east-west artery, near the extreme easterly end of the Lake. These approaches provide access also to a network of State designated highways leading by several routes directly into Mississippi to connect there with similar State and Federal arteries. On the south end, the project called for the Expressway to run 3.2 miles on land to specifically tie into Airline Highway (U.S. 61 and 65), an important artery leading from Arkansas and Mississippi down through Baton Rouge, past Moisant International Airport, into the heart of New Orleans, connecting there with U.S. 90 to the east. And, as a part of the related projects to be financed from the accumulated reserve of $5,000,000.00 in State Fund No. 2, the State Highway Department became obligated to extend a four-lane super highway southward beyond Airline Highway to connect, by suitable traffic interchanges, with Jefferson Highway, U. S. 90, the main transcontinental east-west artery through Texas, South Louisiana, across the Huey P. Long Mississippi River Bridge, through New Orleans and to the Eastern Seaboard beyond.

The elaborate and expensive traffic interchange plans to connect the Expressway into these busy nationwide arteries was, of course, no accidental coincidence. It was the very heart of a plan without which the project would have been a colossal boondoggling waste, would have failed in its intended purpose to alleviate increasing traffic chaos and, most likely, would not have attracted a single dollar of investor's capital. If the Expressway was to be a useful, efficient carrier of traffic, if it was to be feasible from an economic and financing point of view, it had to be a direct link in the established network of interstate arteries made up both of federally designated highways and principal state highways.

The purpose that the Expressway, on completion, would be such a link is established beyond contradiction. That it was to be sponsored by State and Parish governments in recognition of responsibilities resting upon them reasonably to supply the public facilities needed for the movement of today's flood of local, state, interstate and foreign commerce, and was to be paid for by users, without either of them making the common trek to Washington for the beguiling grant of federal aid, detracts not a whit from its status as an interstate facility. Public funds, State or Federal, are not essential to the creation of instrumentalities of interstate commerce, cf. Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; Walling v. McCrady Construction Co., D.C.Penn., 60 F.Supp. 243, affirmed 3 Cir., 156 F.2d 932, certiorari denied 329 U.S. 785, 67 S.Ct. 298, 91 L.Ed. 673.

The purpose was thus clear, and the expectation that it would be a useful improvement of interstate facilities was certainly equally well-founded. Whether, and to what extent, entirely new traffic might be generated (i.e., traffic not previously using any of the other routes to and from New Orleans) was perhaps uncertain in the expert opinions of the traffic consultants. But there was none either as to the probable minimum volume of use by accepted classifications of passenger, truck and bus traffic, or the substantial savings in time, mileage and money on typical journeys to and from the New Orleans area and points to the north, northeast and east which would attract a considerable portion of existing traffic. Equally...