Brue v. J. Rich Steers

• Decision Date: 21 April 1945
• Citation: 60 F. Supp. 668
• Parties: BRUE et al. v. J. RICH STEERS, Inc., et al.
• Court: U.S. District Court — Southern District of New York

60 F. Supp. 668

BRUE et al. v. J. RICH STEERS, Inc., et al.

District Court, S. D. New York.

April 21, 1945.

Gay & Behrens, of New York City (Edward J. Behrens, of New York City, of counsel), for plaintiffs.

John F. X. McGohey, U. S. Atty., of New York City (Louis Mansdorf, Asst. U. S. Atty., of New York City, of counsel), for defendants.

GODDARD, District Judge.

Donoghue, one of the plaintiffs in this suit for overtime wages under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., has moved for summary judgment. The defendants are four contracting companies who were joint venturers on a contract with the United States to construct new dry docks at the Brooklyn Navy Yard. It is conceded that the plaintiffs were inspectors and do not come within the provisions of the Davis-Bacon Act, 40 U.S.C.A. § 276a, or of 40 U.S.C.A. §§ 324-326. The moving plaintiff has submitted affidavits describing his part in the construction work, and has also included pictures of the dry docks under construction.

The complaint alleges that the plaintiffs were the employees of the defendants; that the defendants were engaged in interstate and foreign commerce, and in the production of goods for interstate and foreign commerce, and that each of the plaintiffs, as an employee of the defendants, was engaged in the production of goods for interstate and foreign commerce. The complaint goes on to allege that the plaintiffs were engaged in the construction of marine equipment, to wit—two dry docks in an arm of the East River; that the materials for the construction of the dry docks were brought to the site of the work by ships traveling in interstate commerce from Pennsylvania and New Jersey. The plaintiffs, while employed by the defendants, worked weeks of more than forty hours; that they were paid for their time over the forty hours at a rate less than time and a half. They are suing for the alleged balance due them, for an equal sum as liquidated damages, and for reasonable attorneys' fees, in accordance with the provisions of the Fair Labor Standards Act. 29 U.S.C.A. §§ 207, 216(b).

The answer of the defendants denies that the plaintiffs were employed by them, and in one affirmative defense alleges that the plaintiffs were employed by the government. It also denies that the plaintiffs were engaged in the production of goods for interstate commerce.

On this motion, the defendants have withdrawn all of their defenses, except the defense denying that the moving plaintiff was engaged in interstate commerce or in the production of goods for interstate commerce and that the plaintiff was not covered by the Fair Labor Standards Act.

According to the affidavit and exhibits of the moving plaintiff, Donoghue, channels were first dredged out of the East River in the location of the proposed dry docks. Steel piles were sunk into the bottom of each channel and cut off to proper length. Steel forms were then brought by boat from New Jersey and placed underwater on the steel piles. Tremie boats were then brought to the site, and were used to chute tremie cement from the mixing plant ashore into the steel forms underwater. The last step of pouring the concrete into the forms under water was a difficult one and Donoghue's service consisted in watching and inspecting this operation. He had to see that the proper grade of concrete was sent down into the underwater forms, to see that the forms were evenly filled, and he had to see that the concrete was poured without any leaks—either of unwanted water into the forms, or of concrete out of the forms.

When the first dry dock was partially completed, Donoghue devoted part of his time to supervising the placing of the two-foot coat of concrete on that portion of the dry dock. Then he supervised the task of putting the fill-in around the dry dock so as to join the dry dock in with the rest of the Navy Yard. As soon as a section of the dry dock had been finished, the Navy started constructing a ship there.

Several reasons are urged in behalf of plaintiff in support of the contention that he was engaged in commerce (interstate) or in producing goods for commerce as defined in the Fair Labor Standards Act.

It is apparently contended that as he was working on a float anchored in the East River—navigable waters—he was engaged in commerce. This would be relevant if the question of admiralty jurisdiction were involved. However, it is to be remembered that a seaman is expressly excluded from coverage under the Fair Labor Standards Act, 29 U.S.C.A. § 213(a) (3), and that it is not the location but the nature of plaintiff's occupation which is determinative. Anderson et al. v. Manhattan Lighterage Corporation, 2 Cir., 148 F. 2d 971. The decision turns not upon whether an employee's activities affect or indirectly relate to interstate commerce, but whether they are actually in or so closely related to the movement of commerce as to be a part of it. The character of the work of the employee is the decisive factor—not whether his employer was engaged in interstate commerce. McLeod v. Threlkeld et al., ...