Divins v. Hazeltine Electronics Corporation
| Citation | 163 F.2d 100 |
| Decision Date | 09 June 1947 |
| Docket Number | Docket No. 20506.,No. 205,205 |
| Parties | DIVINS et al. v. HAZELTINE ELECTRONICS CORPORATION et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Joseph G. Telchin, for appellants.
Cahill, Gordon, Zachry & Reindel, (Mathias F. Correa and William L. Dennis, of counsel), for appellees.
William S. Tyson, Sol., Bessie Margolin, Asst. Sol., John A. Hughes, Regional Atty., Morton Liftin, Helen Grundstein, and Frederick U. Reel, Attys., U. S. Department of Labor, for the Administrator of the Wage and Hour Division, United States Department of Labor, amicus curiae.
Before SWAN, CHASE, and FRANK, Circuit Judges.
This is an action brought by the plaintiffs on behalf of themselves and all other similarly situated employees of the defendants to recover overtime compensation, liquidated damages and attorney's fees under the Fair Labor Standards Act of 1938, for services performed between January 1, 1942 and December 31, 1945. Before answering, the defendants moved under Rule 56(b) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for summary judgment on the ground that the undisputed facts showed that the plaintiffs were not within the coverage of the Act. This motion, heard on the complaint and supporting and opposing affidavits, was granted. From the ensuing judgment of dismissal, the plaintiffs have appealed.
The questions presented by the appeal are whether the plaintiffs, in performing the work for which they claim overtime compensation, were "engaged in commerce or in the production of goods for commerce," within the meaning of section 7 of the Act, 29 U.S.C.A. § 207. The district judge held that they were not within either category, and in so ruling erred, they contend, as to each. In support of their contentions the Administrator of the Wage and Hour Division of the Department of Labor has filed a brief as amicus curiae. In referring to the contentions of the appellants we shall not differentiate between the arguments advanced on behalf of the plaintiffs and those presented by the amicus.1
The following facts appear without substantial disagreement. The defendants contracted with the United States Navy Department to recruit and train "field engineers" and to supply specified "man months" of "technical professional services" of such engineers, who were to be "subject to the direction of the Department." In performance of such contracts the defendants employed the plaintiffs, paying them $65 a week while in training and from $75 to $85 a week thereafter. On completion of the training period the services of the plaintiffs were placed at the disposal of the Navy Department. Under direction of naval officers they worked at naval bases and private shipyards in several states. Their work consisted of installing, servicing and maintaining radar and radio equipment on various types of ships. Most of the work was performed on shipboard but some was done in workshops at shipyards or naval bases. A small part of the equipment worked upon had been manufactured by the defendants; most of it was the product of other manufacturers.2 All of the equipment belonged to the United States and had been delivered into its actual physical possession prior to the time when the plaintiffs did any work upon it. Divins' affidavit states that the "types of ships" on which he installed, serviced and maintained radar and other equipment were "auxiliary mine sweepers, armed cargo transports, armed water distillery ships, armed floating work ships, PT boats, PC boats, SC boats, destroyers, a light cruiser, a submarine, etc., etc." Martoccia adds to this list "heavy cruisers, aircraft carriers, battleships, destroyer escorts, armed transports, etc., etc." Some of these ships were in process of construction and uncompleted when the plaintiffs worked aboard them; others, after being commissioned, had seen service and had returned for repairs, refitting and modernization, including the installation of new types of radar equipment. Some of the vessels had been turned over by the United States to various of its allies.
The appellants contend that whether or not work done in connection with the construction of new vessels which have never put to sea constitutes engagement in commerce, it is beyond question that workmen who maintain, service, repair and improve completed ships which have seen service, are "engaged in commerce" within the meaning of the Fair Labor Standards Act. This would be indubitable if these were ordinary ships engaged in commercial pursuits. Such vessels would be instrumentalities of commerce, and employees of a private contractor who repair, maintain or improve such instrumentalities would certainly be held to be "engaged in commerce." See Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; J. F. Fitzgerald Const. Co. v. Pedersen Co., 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786; Slover v. Wathen, 4 Cir., 140 F.2d 258; Skidmore v. John J. Casale, Inc., 2 Cir., 160 F.2d 527. But most of the vessels on the repair or servicing of whose equipment the plaintiffs did their work were war vessels operated by the United States or by allied nations in the prosecution of the war. In any realistic use of words such vessels would seem to be instrumentalities of war, not of commerce. It is true that warships transport men, munitions, food for crew and troops, and occasionally, perhaps, supplies for civilians; and they may at times transmit radio messages for civilians. See Ritch v. Puget Sound Bridge & Dredging Co., 9 Cir., 156 F.2d 334, 335. This literally satisfies the statutory definition of commerce,3 but such transportation or communication is merely incidental to the war purpose for which the vessel is actually being used. To hold that workmen who repair aircraft carriers, battleships, submarines or other types of vessels used as weapons of war are "engaged in commerce," stretches the quoted words, elastic though they be, beyond all reasonable limits. The test, as stated in McLeod v. Threlkeld, 319 U.S. 491, 497, 69 S.Ct. 1248, 1251, 87 L.Ed. 1538, "is not whether the employee's activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it." The district judge was of opinion that the plaintiffs' activities were too remotely related to the movement of commerce to be a part of it.
We agree with this conclusion in so far as it applies to the work of repairing equipment on vessels of war. We disagree with it in respect to the work of repairing equipment on vessels which may properly be considered instrumentalities of commerce, such as "armed cargo transports" and "armed transports."4 Such vessels, we think, may be regarded as engaged in commerce, even though the goods or persons they transport will be devoted to the war effort after arrival at destination.
The defendants urge that even if the vessels were engaged in commerce, the appellants were not because the equipment upon which they worked had nothing to do with the movement of the vessels in which it was installed. The record does not disclose the function of the radar equipment; but whether it was to be used in aid of navigation or solely as a defensive or offensive weapon of war we do not believe important. A Pullman railroad car is clearly an instrumentality of commerce, and anyone who repairs such a car in preparation for its next interstate journey is, in our opinion, engaged in commerce within the meaning of the Fair Labor Standards Act, regardless of the exact nature of his work. That is to say, a workman who repaints the car, or repairs the electrical equipment which enables a passenger to summon the porter, would be within the coverage of the Act no less than one who repairs a broken axle. Similarly, in the case of a vessel, if it be an instrumentality of commerce, the men employed in making repairs deemed necessary for its next voyage are "engaged in commerce" whether their work pertains...
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