Gannet Corporation v. Stevens

• Decision Date: 26 January 1968
• Docket Number: 39-1965.,Civ. No. 38-1965
• Citation: 282 F. Supp. 437
• Parties: GANNET CORPORATION, Appellant, v. Melville M. STEVENS, Commissioner of Labor of the Government of the Virgin Islands (two cases).
• Court: U.S. District Court — Virgin Islands

282 F. Supp. 437

GANNET CORPORATION, Appellant, v. Melville M. STEVENS, Commissioner of Labor of the Government of the Virgin Islands (two cases).

Civ. Nos. 38-1965, 39-1965.

District Court, Virgin Islands D. St. Croix.

January 26, 1968.

Russell B. Johnson, Christiansted, V. I., for Gannet Corporation appellant.

Francisco Corneiro, Atty. Gen., for Melville M. Stevens.

OPINION

MARIS, Circuit Judge.

These are appeals by Gannet Corporation from Orders Nos. 1-1965 and 2-1965 issued by the Commissioner of Agriculture and Labor of the Government of the Virgin Islands, acting through his Director of Labor, ordering the appellant to pay back wages to certain of its nonresident alien workers.

This controversy arises out of the following facts:

The appellant, a Virgin Islands corporation engaged in the construction business, was advised by the Director of Labor of the then Department of Agriculture and Labor,¹ in notices dated February 24, 1965, that two separate complaints had been filed against appellant by nonresident alien workers, and that hearings were scheduled thereon. One complaint was filed by Frank Anthony, Austin Roberts, Vincent Gaskin, Renford Henry and James Athill and charged that appellant had not paid the prevailing wage rate for services performed by them. After holding hearings on this complaint the Director of Labor issued Order No. 2-1965 on March 15, 1965 in which he made the following findings of fact:

"1. That, Frank Anthony, Austin Roberts, Vincent Gaskin, Renford Henry and James Athill are non-residents and were bonded and employed by Gannet Corporation as laborers; That, Frank Anthony, Austin Roberts, Renford Henry and James Athill were employed from August, 1964, and Vincent Gaskin from January, 1965; that, the employment of all five was terminated on February 18, 1965.

"2. That, Frank Anthony performed sundry duties for his employer, that such duties are assimilated with those of a laborer; that, he received wages varying from $1.05 to $1.25 per hour during his tenure of employment; that the prevailing rate for laborers is $1.05; accordingly, employer did not, in this instance, fail to pay the prevailing rate.

"3. That, Austin Roberts performed sundry duties for his employer, that such duties are assimilated with those of a laborer; that, he received a wage rate of $1.05 per hour during his tenure of employment; accordingly, employer did not fail, in this instance, to pay the prevailing rate.

"4. That, Vincent Gaskin performed duties for his employer, Gannet Corp., between January and February, 1965, characterized as those of a painter; that, pursuant to Wage Order No. 7, effective January 4, 1965, the rate for painters was increased to $1.50 per hour; that Vincent Gaskin worked a toal of 168 regular hours @ $1.10 per hour; that, the employer failed, in this instance, to pay wages equal to those of a painter, consequently, is liable to the employee for 168 hours @ 40¢, or back wages totalling $67.20.

"5. That, Renford Henry performed duties for the employer, Gannet Corp., between August, 1964 and February, 1965 characterized as those of a carpenter; that, the prevailing rate for carpenters is $1.75 per hour, that, employee worked a total of 927½ regular hours @ $1.60 per hour; that the employer failed, in this instance, to pay the prevailing rate for carpenters; consequently, is liable to employee for 927½ hours @ 15¢, or back wages totalling $139.13.

"6. That, James Athill performed duties for the employer, Gannet Corp., between August, 1964 and February, 1965 characterized as those of a carpenter; that, employee worked 224 regular hours @ $1.30 per hour; 222 regular hours and 24 overtime hours at the rate of $1.35 per hour and 375 regular hours at $1.50 per hour; that the employer failed, in this instance, to pay the prevailing rate for carpenters; accordingly, is liable to employee for 224 hours @ 45¢, or $100.80; 222 regular hours @ 40¢ and 24 O.T. hours @ 60¢, or $103.20, and 375 regular hours @ 25¢, or $93.75, a total of $297.75."

The appellant was directed to pay to Gaskin, Henry and Athill back wages in accordance with the findings of fact. This appeal, docketed at Civil No. 38-1965, followed.

The other complaint was filed by Stedman Weston and charged that the appellant had failed to supply Weston with a 40 hour workweek but that he had worked only one or two days out of each week. After a hearing, the Director of Labor, on March 15, 1965, issued Order 1-1965, in which he made the following findings of fact:

"1. That, Stedman Weston is a nonresident and was employed by Gannet Corporation as a mason at the rate of $1.75 per hour, under bond, in the month of October, 1964, up to and including January 14, 1965.

"2. That, Gannett Corporation signed an agreement with the Commissioner of Agriculture & Labor guaranteeing a 40 hour work week to its employees.

"3. That employer's payroll shows work-weeks of less than 40 hours as follows:

                     October 29, 1964                             24 hrs
                     November 12, 1964                            35  "
                     November 25, 1964                            32  "
                     December 3, 1964                             39½ hrs
                     December 10, 1964                             8   "
                     December 24, 1964                             8   "
                     December 31, 1964                             0   "
                     January 2, 1965                               8   "
                     January 14, 1965                             15½  "
                

"4. That employer made 40 hours of employment available to the employee for the week ending October 29, 1964 but that employee did not avail himself of the opportunity to work; accordingly, employer should not be held liable for this work-week.

"5. That, the employer, Gannet Corporation, failed to supply the employee, Stedman Weston, with full time employment for the remaining weeks as listed in paragraph 3, hereof, a total of 174 hours, for which employer should be held liable."

The appellant was ordered to pay Weston the sum of $304.50, representing 174 hours of employment at $1.75 per hour. From this order the appellant appealed at Civil No. 39-1965.

No issues of fact are raised on these appeals; the issues being solely questions of law. The principal issue is whether the statute involved is valid. The appellant contends that the Act of February 25, 1964, No. 1102, V.I.Sess.L.1964, p. 41, as amended, 24 V.I.C. § 125 et seq., under which the orders here under review were issued, is invalid in that (1) Congress has fully legislated with respect to importing alien nonresident workers to the exclusion of territorial legislation such as this, and (2) that the statute fails to give equal protection of the laws and is discriminatory. The issue is also raised that Order 2-1965 is invalid because of the alleged failure of the Commissioner to promulgate detailed standards of qualifications for occupational categories.

We turn first to the appellant's contention that Congress, having legislated with respect to importing alien nonresident workers, the Act of February 25, 1964, No. 1102, as amended, 24 V.I.C. § 125 et seq., is invalid on the ground that it conflicts with the federal law on the same subject. This the Government of the Virgin Islands denies, asserting not only that the Virgin Islands statute does not conflict with the federal legislation but also, affirmatively, that the Virgin Islands Legislature acted well within its power in regulating the employment of nonresident alien workers in order to protect its resident workers. In support of its position the Government relies on Day-Brite Lighting, Inc. v. State of Missouri, 1952, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469, in which the Supreme Court said that "the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided."

It is clear that if a law passed by a State in the exercise of its authorized powers comes into conflict with federal law, the State law must yield. Smith v. State of Alabama, 1888, 124 U.S. 465, 473, 8 S.Ct. 564, 31 L.Ed. 508; Second Employers' Liability Cases, 1912, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327; Sperry v. State of Florida, 1963, 373 U.S. 379, 384, 83 S.Ct. 1322, 10 L.Ed.2d 428. But the Supreme Court has long established the rule that "It should never be held that Congress intends to supersede, or by its legislation suspend, the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said — and the principle has been often reaffirmed — that `in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.' Sinnott v. Davenport, 22 How. 227, 243, 16 L.Ed. 243, 247." Reid v. State of Colorado, 1902, 187 U.S. 137, 148, 23 S.Ct. 92, 96, 47 L.Ed. 108. See, also, Kelly v. State of Washington, 1937, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3. "Statements concerning the `exclusive jurisdiction' of Congress beg the only controversial question: whether Congress intended to make its jurisdiction exclusive." People of State of California v. Zook, 1949, 336 U.S. 725, 731, 69 S.Ct. 841, 844, 93 L.Ed. 1005. Thus, each case must be decided on its own particular facts. Head v. New Mexico Board, 1963, 374 U.S. 424, 429-430, 83 S.Ct. 1759, 10 L.Ed.2d 983. "The test of whether both federal and state regulations may operate, or the state regulations must give way, is whether both regulations can be enforced without impairing the federal superintendence...