Aubuchon v. Frazier
| Decision Date | 12 July 1951 |
| Docket Number | No. 5413.,5413. |
| Citation | 99 F. Supp. 985 |
| Parties | AUBUCHON et al. v. FRAZIER et al. Defendants (Reconstruction Finance Corp., Third Party Defendants). |
| Court | U.S. District Court — Eastern District of Missouri |
Strubinger, Tudor, Tombrink & Wion, and Dennis E. Woodside, all of St. Louis, Mo., for plaintiffs.
Fordyce, Mayne, Hartman, Renard & Stribling, and Thomas Rowe Schwarz, all of St. Louis, Mo., for defendants.
Sidney B. McClanahan, of St. Louis, Mo., for third party defendant.
Forty-seven plaintiffs, performing guard duties on an original construction project for defendant corporation, sue for overtime compensation under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The matter of hours worked by the plaintiffs is not in issue. The questions presented: (1) Are guards of an original construction engaged in interstate commerce if a major portion of the materials used in the construction flows in interstate commerce and there are other interstate features of the operation? (2) If plaintiffs meet the interstate commerce test, are defendants relieved of liability under the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq.? (Because failure to pay overtime was the result of reliance by defendants on an interpretative bulletin issued by the Secretary of Labor, through the Wage and Hour Administration, that employees engaged in original construction are not generally within the scope of the "Act".)
Defendants, on November 27, 1941, contracted with Defense Plant Corporation,1 on a cost-plus-fixed-fee basis, for construction of a building at Granite City, Illinois, to house a foundry and machine shop. The building was constructed on a vacant tract of over one hundred acres. The Agency was a wholly-owned Government subsidiary. Work started on the project early in 1942. At the outset the project was enclosed with a fence. Although the contract did not specifically require defendants to guard the premises, soon after the work started the Agency served notice on defendants, through its supervising engineer, William S. Flohr, that the project must be guarded. The guards were procured through F. W. Bender, to insure investigation of those applying for the work. On January 12, 1942, Bender made his recommendations for the various guard posts, and organization of the guard service with lieutenants and a captain in charge. The "original purchase order" for guards (defendants' Exhibit No. 16), dated January 2, 1942, was on a forty-hour week basis. On March 12, 1942, the original purchase order was changed to a forty-eight hour week basis. This change resulted when Flohr advised defendants that payment to guards for overtime was not justified because guards were not within the coverage of the Fair Labor Standards Act.
Construction started in January, 1942. Guard service, originally confined to gates and grounds, was broadened, as the building progressed, to cover both the inside and outside of the buildings. The number of guards varied. Some posts required guards for three eight-hour periods, some for two eight-hour periods, and some for one eight-hour period. All guards rotated on the various posts with the exception of two. Whether the guards rotated shifts does not appear. As of November 24, 1942, there were seventeen posts. An example of location of posts and whether on one or more shifts is shown by defendants' Exhibit 5.2
A major portion of materials that went into the building was received at Granite City through interstate transportation. Switch tracks of the St. Louis Terminal Railroad passed through a gate of the fenced enclosure. The gate was kept locked except when material was being delivered by train. Some building materials arrived by truck, as well as rail. As a rule all materials were checked at entrance gate, by a receiving clerk, that they might be dispatched to proper siding or location to make it convenient in the building operation. The train switch foreman had a key to the rail gate; also the guard on that post had a key available. The cars and trucks were inspected at the gate by guards for discovery of unauthorized persons. Defendants' administrative building had a telephone switchboard over which long distance calls were made. This building housed the records of defendants. In the inside of the building was a guard post.
The building was erected for lease to the General Steel Castings Corporation.3 The Lessee had a building in the immediate vicinity in which a cafeteria was operating. The defendants' employees used the cafeteria. Employees of other industries in the neighborhood also used the cafeteria. It was semi-public. Defendants had a guard posted at the cafeteria to maintain order after their employees started to use it. Power wires, with part at least of the power passing interstate, with transformers, were on the premises. Defendants used power from this source in their building operations.
Early in 1943 the main building had progressed to a point where the Lessee called for possession of a part to commence production. Delivery of a part of the building was then made by defendants to the Lessee. As the building progressed, additional parts were delivered in like manner to the Lessee. The Lessee produced castings which thereafter moved in interstate commerce. Upon space being turned over to the Lessee, that part of the building was partitioned off with open wire netting fence from the part of the building still under construction. (See blueprint, defendants' Exhibit No. 12.) The Lessee was required to, and did, furnish guards for that portion of the building in use by it, and defendants were relieved of responsibility for guard service on delivered portions of the building. Instructions on division of guard responsibility were specific. Flohr advised defendant, in part, as follows, on February 13, 1943:
As a result of the Flohr communication defendants issued an order on the same day to all its foremen from which the following excerpts are taken:
`Restricted Area'
`Keep Out'
"After the establishment of these `Restricted Areas' and the placing of signs, the Guard Force will be charged with the duty of keeping all unauthorized persons from entering said `Restricted Areas'.
* * * * * *
The foregoing instructions from Flohr, and defendants to their foreman, resulted from a telegram dated February 11 (defendants' Exhibit No. 13) from W. L. Drager, Chief Engineer, to Flohr:
The terms of these directives were carefully carried out by the defendants. Defendants' Exhibit 9, an order from defendants' superintendent on the job, is illustrative of the procedure of defendants following the orders from Flohr. After the Lessee took over a part of the building, a section of the wires conveying power to the Lessee passed over grounds patrolled by defendants' guards. The power transformers were then guarded by Lessee's guards. Portions of the grounds adjacent to parts of the building taken over by Lessee were fenced off and patrolled by Lessee's guards, but a saboteur intent on reaching Lessee's operation might have passed a fence or gate guarded by defendants' guards or over ground policed by defendants' guards. Defendants' guards stationed inside the building under construction could look through the wire netting and see the Lessee's operations. All...
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Donahue v. George A. Fuller Co.
...belonged. To establish this defense all the above conditions must be present and the burden of proof is on the defendants. Aubuchon v. Frazier, D.C., 99 F.Supp. 985. It is agreed that the defendants submitted Donahue's wage schedules to the Contracting Officer for approval and that they wer......