Crabb v. Welden Bros.

• Decision Date: 01 December 1947
• Docket Number: No. 13435-13439.,13435-13439.
• Citation: 164 F.2d 797
• Parties: CRABB v. WELDEN BROS. WELDEN BROS. v. DEDRICK. DEDRICK v. WELDEN BROS. C. F. LYTLE CO. et al. v. PETERSON. SAME v. VOLLUM.
• Court: U.S. Court of Appeals — Eighth Circuit

164 F.2d 797 (1947)

CRABB v. WELDEN BROS.

WELDEN BROS. v. DEDRICK.

DEDRICK v. WELDEN BROS.

C. F. LYTLE CO. et al. v. PETERSON.

SAME v. VOLLUM.

Nos. 13435-13439.

Circuit Court of Appeals, Eighth Circuit.

December 1, 1947.

Peter W. Janss, of Des Moines, Iowa, and Bert E. Church, of Kansas City, Mo., for Welden Bros., C. F. Lytle Co. and Green Construction Co.

Howard L. Bump, of Des Moines, Iowa, for S. F. Crabb and Frank B. Dedrick.

Mr. Alfred T. Vollum, of Albert Lea, Minn., for Gustaf E. Peterson and Gilbert E. Vollum.

Charles M. Bump, of Des Moines, Iowa, for Frank B. Dedrick.

William S. Tyson, Sol., Morton Liftin, Acting Asst. Sol., and Frederick U. Reel, Atty., U. S. Department of Labor, all of Washington, D. C., and Reid Williams, Regional Atty., U. S. Department of Labor, of Kansas City, Mo., for Administrator of Wage and Hour Division, Amicus Curiae.

Before GARDNER, WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

These appeals are from judgments entered in four separate actions brought to recover alleged unpaid overtime compensation, liquidated damages, attorneys' fees, and costs, under the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The employer defendants have appealed in Nos. 13436, 13438 and 13439, while the employee plaintiffs have appealed in Nos. 13435 and 13437. The employer defendants on these appeals contest any right of recovery by any of the plaintiffs. The employee S. F. Crabb has appealed on the ground that he was denied any compensation for overtime, and the employee Frank B. Dedrick has appealed on the ground that while he recovered judgment, his overtime compensation was incorrectly computed. All the actions were consolidated for purposes of trial and although a separate judgment was entered in each case the appeals have been consolidated in this court and are presented on a single record.

During the war with Japan, and as a military measure, the United States, early in 1942, proposed the building of a highway from Dawson Creek, British Columbia, through Fort Nelson, Watson Lake and Whitehorse, Canada, to Fairbanks, Alaska. The United States and the Canadian government entered into an agreement by which the Public Roads Administration of the United States was to build the highway at the expense of the United States, and to maintain the highway through Canada until six months after the termination of the war. Early in May, 1942, the Public Roads Administration employed the C. F. Lytle Company and the Green Construction Company as project managers and ultimately some eighteen other contractors to assist in the construction of the highway. The contracts were cost-plus-a-fixed-fee contracts, by the terms of which all expenses and operating costs were to be paid by the United States and title to all materials, supplies, tools, equipment, services, power fuel and machinery was vested in the United States, it compensating the contractors for their property. Some equipment of the contractors was leased to the government. The C. F. Lytle Company and the Green Construction Company had general charge of the project under the immediate direction of the Public Roads Administration. All claims of the employees here involved are for services performed in 1943.

The proposed highway extended in a general northwesterly and southeasterly direction and with the exception of a few miles southeast of Fairbanks was through a complete wilderness. The location of the various trails, highways and places can be more readily understood by reference to the map known in the record as Exhibit 1. Prior to the construction of the new highway known in the record as the Alcan Highway, there was a highway which extended from Valdez almost directly north to Big Delta and thence northwesterly to Fairbanks. This highway was known as the Richardson Highway and was not a good road. The Alcan Highway extended from Whitehorse, Canada, in a general northwesterly direction along the Tanana River Valley through the wilderness to Big Delta, at which point it formed a junction with and utilized the Richardson Highway to Fairbanks. In order to expedite the work so as to comply with the Army's requirement for completion, additional points of entry besides that existing at Big Delta had to be established. The Richardson Highway was westerly from the Alcan Highway and the junction with the Alcan Highway at Big Delta formed the apex of an inverted V, the Richardson Highway being the westerly wing of the V, and the Alcan Highway being the easterly wing of the V. The Public Roads Administration and the Army authorities decided to use an old trail extending from Gulkana on the Richardson Highway northeasterly to Slana, and thence drive a pioneer trail to some point on the route of the proposed Alcan Highway in the vicinity of the point designated on the map as Tanacross and from that point work northwesterly and southeasterly on the Alcan Highway.

In order to build the permanent road through the wilderness it was first necessary to break through with a pioneer or supply trail to serve the permanent construction sites. In opening up this supply trail they merely pushed back the tundra with bulldozers, knocked down trees and brush, erected temporary bridges with native lumber across that portion of the wide stream beds where they found running water, and thus made a trail through the wilderness barely sufficient to move new equipment and supplies up to the permanent construction sites. The supply trail southeast of a point later known as Tok Junction, toward the border, was built during and after September, 1942. This supply trail and the permanent road followed the same general direction. In some places they criss-crossed, while in others they were in the same clearing area, and in still other places they were fifteen miles apart. In 1943 the contractor organizations were assigned different portions of the permanent construction and proceeded to build the permanent highway and bridges in accordance with the plans and specifications, and with the exception of the superstructure on a number of bridges, completed the highway sufficiently so that a juncture was effected below the border into Canada on October 13, 1943.

Gas, oil and lubricants constituted over 50 per cent of the tonnage of materials used on the project. A bulk plant dealer for the Standard Oil Company of California maintained a gasoline and storage depot at Valdez, and all gas, oil and lubricants used on the project were purchased by the Public Roads Administration from the local dealer. Most of the remaining materials, goods and supplies were bought by the Public Roads Administration in the United States and were shipped by it in convoyed ships from west coast ports to Valdez. Small amounts were shipped by boat to Anchorage and then by rail to Fairbanks. In nearly all instances the goods, materials and supplies were consigned to "Public Roads Administration, Valdez, Alaska," or to "Lytle and Green, Valdez, Alaska," though some shipments were addressed to other contractors "c/o Lytle and Green," or "c/o Public Roads Administration," but however addressed everything when received was turned over to and taken into possession by the Public Roads Administration. The shipments at sea were under control of the armed forces and were unloaded by the Army from the ships to docks at Valdez. The contractors then hauled the materials to the warehouses of the Public Roads Administration in Valdez. From there distribution was made as needed under direction of the project managers of the Public Roads Administration. Additional warehouses were established, first at Gulkana and Big Delta and later, in 1943, at Tok Junction, Alaska. With few exceptions all goods were first received, checked, assembled and warehoused at Valdez, the exception being that a few shipments were sent to Fairbanks, and as needed they were hauled up the Richardson Highway to the warehouse at Gulkana, which until the establishment of Tok Junction was the central control point of the whole project. At Gulkana the goods were again warehoused and in accordance with the needs of the project were hauled up the Richardson Highway to the Big Delta warehouse and later up the supply or pioneer trail to the Tok Junction warehouse. Nothing was released from any warehouse except upon a signed written requisition from the Public Roads Administration or the project managers. Transportation of the supplies and materials was accomplished by trucks owned or leased by the Public Roads Administration and operated either by the Public Roads Administration or contractor employees. At the completion of the work the warehouses were still full of unused materials and supplies.

The trial court found that the plaintiffs were not engaged in the production of goods for interstate commerce during their employment. It found that plaintiffs Peterson, Vollum and Dedrick were engaged in interstate commerce but that plaintiff Crabb was not so engaged. Peterson and Vollum were also allowed extra compensation for the seventh day of work in a week because of the provisions of Executive Order No. 9240, 40 U.S.C.A. § 326 note, which the court held was made a part of their contract of employment. The court expressed the view that one working on the original construction of a new road is not engaged in interstate commerce although the road when finished is intended for use in such commerce, and the court found that the Alcan Highway did not become an international road until its completion in October, 1943, and that the road or trail built in 1942 could not be used as an international road as it was impassable for traffic in 1943 and could not be used for commerce. The court expressed the view that "were it not for the commerce flowing from the port of Valdez to the associated contractors these roads could not be considered instruments of commerce and building bridges thereon would have to be...