Connell v. Vermilya-Brown Co.

• Decision Date: 19 October 1946
• Citation: 73 F. Supp. 860
• Parties: CONNELL et al. v. VERMILYA-BROWN CO., Inc. et al
• Court: U.S. District Court — Southern District of New York

73 F. Supp. 860

CONNELL et al. v. VERMILYA-BROWN CO., Inc. et al

District Court, S. D. New York.

October 19, 1946.

Jacob Bromberg, of New York City (Sol L. Firstenberg, of New York City, of counsel), for plaintiffs.

Eidlitz, French, Fink and Markle, of New York City (James Randall Creel, of New York City, of counsel), for defendants.

COXE, District Judge.

This is a motion by the defendants for summary judgment in their favor.

The action is brought by eleven former employees of the defendants for additional overtime compensation, liquidated damages, and an attorney's fee, under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

The defendants were jointly engaged in the construction of an Outlying Defense Base, known as Fort Bell and Kindley Field, in the Bermuda Islands, under a cost-plus-a-fixed fee contract entered into with the United States (by Lt. Col. J. D. Arthur, Corps of Engineers, United States Army), dated February 4, 1941. This construction work was being performed exclusively in areas leased to the United States for ninety-nine years pursuant to an executive agreement between the United States and British governments, dated March 27, 1941, providing for the leasing to the United States of various areas, including areas in the Bermuda Islands, for the establishment of naval and air bases. See 55 Stat. Part 2, pp. 1560-1591.

The plaintiffs were employed by the defendants at different times during the period from September 1941 to the middle of 1943 in connection with the construction of this Defense Base, and all of the work for which the plaintiffs are now asking overtime compensation was performed in Bermuda and directly concerned with such construction. Seven of the plaintiffs were employed as patrolmen and acted as policemen in the leased areas; the other four plaintiffs were employed as fire patrolmen and acted as firemen in the same areas. During the course of their employment, one of the plaintiffs, who had been employed as a patrolman, was promoted to be a "sergeant of police", and another of the plaintiffs, who had been employed as a fire patrolman, was promoted to be a "lieutenant" of the fire department.

The defendants make three contentions in support of the motion, namely, (1) that the Fair Labor Standards Act has no application to the employment of the plaintiffs in the leased areas of Bermuda, (2) that the plaintiffs were engaged in work of original construction, and were, therefore, not covered by the Act, and (3) that two of the plaintiffs are exempt from the provisions of the Act as executive and administrative employees.

The Fair Labor Standards Act has no application to the employment of the plaintiffs in the leased areas of Bermuda. This Act, in Sections 206 and 207, provides for minimum wages and maximum hours for employees "engaged in commerce or in the production of goods for commerce" 29 U.S.C.A. §§ 206(a) and 207(a). Section 203(b) defines "commerce" as meaning "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof", and Section 203(c) defines State as meaning "any State of the United States or the District of Columbia or any Territory or possession of the United States" 29 U.S.C.A. § 203(b) and (c).

None of the leased areas of Bermuda in which the construction work of the defendants was being performed was a "Territory or possession of the United States" within the meaning of the language of the Fair Labor Standards Act. The plaintiffs make no contention that any of these leased areas is a "Territory" of the United States, but they insist that such areas are possessions of the United States. Whether they are possessions of the United States depends on whether they are within the sovereign jurisdiction of the United States. That is a...