Collins v. Ford, Bacon & Davis

• Decision Date: 21 March 1946
• Docket Number: Civ. A. No. 5179.
• Citation: 66 F. Supp. 424
• Parties: COLLINS v. FORD, BACON & DAVIS, INC.
• Court: U.S. District Court — Western District of Pennsylvania

66 F. Supp. 424

COLLINS v. FORD, BACON & DAVIS, INC.

Civ. A. No. 5179.

District Court, E. D. Pennsylvania.

March 21, 1946.

William C. Ferguson, Jr. and Strong, Sullivan, Saylor & Ferguson, all of Philadelphia, Pa., for plaintiff.

Bell, Murdoch, Paxson & Dilworth, of Philadelphia, Pa., and Davies, Auerbach, Cornell & Hardy, of New York City, for defendant.

KIRKPATRICK, District Judge.

This is a motion by the defendant for summary judgment.

From the complaint, answer and affidavits it appears, without dispute, that the defendant-employer, under contract with Jacobs Aircraft Engine Company acting as agent for the Defense Plant Corporation, was supervising the construction of a plant for Jacobs Aircraft Engine Company of Pottstown, Pennsylvania. The plaintiff's employment was at the plant site and all his duties were performed there.

It has been settled by a large number of decisions that the original construction of a factory building does not constitute interstate commerce. Scott v. Ford, Bacon & Davis, Inc., D. C., 55 F. Supp. 982; Wells v. Ford, Bacon & Davis, Inc., 6 Cir., 145 F.2d 240. This is true, even though the factory is used after its construction for the manufacture of goods which are to be shipped in interstate commerce and even though a substantial part of the material used in the building is purchased in states other than the state in which the building is being erected and transported in interstate commerce to the site of the plant. Wells v. Ford, Bacon & Davis, Inc., supra; Brue v. J. Rich Steers, Inc., D. C., 60 F.Supp. 668. It, therefore, must be taken as undisputed that the defendant was not engaged in commerce.

Even so, the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., would apply if the plaintiff is himself engaged in commerce, provided the other requisite conditions prescribed by the law and regulations are present. McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538.

The plaintiff's position is, in substance, that he is engaged in commerce because information, in the form of plans and drawings, prepared by him were sent by mail to points outside the state and were used by contractors or subcontractors in making bids to do portions of the construction work at Pottstown.

To begin with, it is safe to say, that merely preparing, writing and mailing a letter to a point outside the state in which it is mailed does not in itself constitute an act of interstate commerce, nor does the fact that there may be a number of letters add anything. If the rule were otherwise, a social secretary, a lawyer's stenographer or a physician's office assistant would all be engaged in commerce and would automatically come under the Act.

Employees engaged in preparing and transmitting letters, containing information of one kind or another to points outside the state, may be subject to the Act and have been held so to be in several classes of cases:

1. Where the employer is engaged in interstate commerce and the employees are clerks, stenographers, office workers, etc., whose activities are an essential part of the employer's interstate business. Brown v. Minngas Co., D.C., 51 F.Supp. 363.

2. Where the transmission of information is, of itself, the employer's principal business. Moss v. Postal Telegraph-Cable Co., D.C., 42 F.Supp., 807.

3. Even though the employer may not be engaged in commerce, the preparation and writing of letters, soliciting or making arrangements for the purchase of goods in other states to be sent across state lines for use by the employer in connection with his business may constitute acts of commerce and bring the employees so engaged within the Fair Labor Standards Act. I say "may" because my attention has not been called to any case squarely laying down such rule. Several come rather close to it. International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27, L.R.A.,N.S., 493, 18 Ann.Cas. 1103; Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778; cf. ...