General Electric Co. v. Porter

• Decision Date: 11 January 1954
• Docket Number: No. 13603.,13603.
• Citation: 208 F.2d 805
• Parties: GENERAL ELECTRIC CO. v. PORTER. PORTER v. GENERAL ELECTRIC CO.
• Court: U.S. Court of Appeals — Ninth Circuit

208 F.2d 805 (1953)

GENERAL ELECTRIC CO. v. PORTER.

PORTER v. GENERAL ELECTRIC CO.

No. 13603.

United States Court of Appeals Ninth Circuit.

December 7, 1953.

Rehearing Denied January 11, 1954.

COPYRIGHT MATERIAL OMITTED

Metzger, Blair, Gardner & Boldt, Hilton B. Gardner, John W. Blair, Tacoma, Wash., for appellant-appellee General Electric Co.

Horrigan, Merrick, Peterson & Merrick, John Horrigan, Ivan Merrick, Theodore D. Peterson, Florence Mayne

Merrick, Pasco, Wash., for appellee-appellant Averille L. Porter.

Before STEPHENS, BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

Averille L. Porter brought an action under the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 201 et seq., hereafter the Act, to recover on behalf of himself and fifty-five other employees overtime pay, liquidated damages and attorneys' fees alleged to be due from employer General Electric Company, hereafter General Electric. Judgment was rendered in favor of plaintiff Porter and his assignors, hereafter referred to as the firemen, in the amount of $15,212.35 and $5,000 attorneys' fees. General Electric in its appeal contends that the employees were not covered by the Act. The firemen also appeal claiming they were denied the full amount of compensation to which they were entitled.

Four questions are presented for consideration: (1) Were the firemen here involved covered by the Act? (2) Did the trial court err in determining the regular hourly rate of pay and the amount of overtime compensation due the firemen? (3) Was it error to exclude sleeping time in computing work time compensable under the Act? (4) Were the firemen entitled to liquidated damages?

1. Applicability of the Act to the Firemen.

Defendant General Electric operates Hanford Works, a government owned plant engaged in the production of plutonium for military use, under contract with the Atomic Energy Commission, hereafter the Commission, for cost plus a fixed fee of ten cents a year. Hanford Works occupies approximately 650 square miles of a government owned area located in Benton, Franklin, Grant, Adams and Yakima Counties in the State of Washington. Ownership and title to all land, buildings, equipment, raw materials and the finished product is in the United States. More than one-half of the plutonium produced at Hanford was distributed or intended for distribution by the Commission to points outside the State of Washington.

The plant area is surrounded by a barricade with inner barricades enclosing separate production units within the plant. The plant has its own specially trained fire department under the supervision of the manager of the plant utilities and general services department. The plant fire department is separate and distinct from the community fire departments located at Richland and North Richland, the latter being under the control and supervision of the community manager. While the community fire departments do not directly protect the plant area, they are subject to call in the event of emergencies and the record discloses that on several occasions they were actually called to points inside the barricaded area.

The firemen here involved were employed by General Elctric at three separate fire stations in the communities of Richland and North Richland in Benton County, Washington. The two communities are located some distance from the production plant at the southern tip of the federally-owned area at the confluence of the Yakima and Columbia Rivers. The production unit nearest Richland is some seven miles distant. The two communities were built to house and care for the needs of the employees of Hanford Works. All the land and buildings therein are owned by the United States and leased to private persons by General Electric on behalf of the United States. The communities are governed and operated by a community manager who is an employee of General Electric. They are typical small towns having the usual stores, churches, banks, post office, schools, parks, Greyhound bus depot, Railway Express Agency, etc. Richland covers an area of about 4½ square miles and has a population of some 25,000 persons. North Richland has a fluctuating population of from 6,000 to 10,000 persons and covers an area of about 2½ square miles.

There are no production facilities in either Richland or North Richland. However, there is located in Richland an area of about four square blocks known as the "700 Area" containing the administrative and executive offices of General Electric and the Commission.¹ The manager and director of the entire Hanford Works has his offices in the "700 Area" and some 1,000 to 2,000 administrative and executive personnel work there. The whole area comprises some twenty-seven different buildings. Also located in Richland is a plant bus terminal and repair shops operated by General Electric, a hospital where plant employees receive physical examinations, an interstate telephone and teletype system, and an auto freight depot where interstate shipments are received. In North Richland General Electric and the Commission maintain certain administrative offices. General Electric operates a plant railroad which runs through North Richland connecting the plant area with the Union Pacific and Northern Pacific Railways. Considerable plant railroad equipment is located at North Richland, and a marshaling yard maintained between Richland and North Richland. There is a warehouse on the rail line in North Richland but the record does not disclose who owned and operated it. Freight came in over the plant railroad and substantial quantities of surplus and rejected building materials and construction equipment were shipped to points outside the state. There is a lumber yard and piles of construction material in North Richland, some of which is used at Hanford Works. The Commission has a private airport in the vicinity used exclusively by government planes. The firemen stand by at the airport during takeoffs and landings.

All of the structures and facilities mentioned above along with all of the residences and commercial establishments and other property in the two communities are protected by the firemen involved in the instant case.

On the basis of the above facts, the trial court held, and we think properly so, that the community firemen were covered by the Act. The court made the following relevant findings of fact: (1) General Electric was engaged in the production of goods for commerce since a large part of the plutonium produced at Hanford Works was distributed to points outside the State of Washington. (2) Although the firemen were not directly protecting the plant area, they were protecting the administrative portion of the plant and were therefore engaged in an occupation closely related and directly essential to the production of goods for commerce. (3) The firemen guarded and protected instrumentalities of commerce, namely, a railroad, a telephone exchange, an express depot, and bus and freight terminals.

General Electric concedes that it was engaged in the production of goods for commerce. It contends, however, that even though it produces goods for commerce, the duties of the community firemen do not bear such a relationship to that production as to bring them within the coverage of the Act.

An employee is covered by the Act as amended if he is in an occupation "closely related" and "directly essential" to the production of goods for commerce.² The employee's work need not be indispensable to production. Roland Electric Company v. Walling, 1945, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Watchmen, engineers, firemen, carpenters and other maintenance personnel employed in a building where goods are physically manufactured or processed for commerce come within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Armour & Co. v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118. In Borden Company v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, the Supreme Court not only reaffirmed its position in the Kirschbaum case but extended it. It was there held that officers and administrative personnel working in an office building owned and operated by a producer of goods for commerce are actually engaged in the production of goods, and employees who service and maintain such building are engaged in an occupation necessary to that production and come within the coverage of the Act. The factual situation of this and the Borden case is similar. Just as the heart of the Borden enterprise lies in its central office building where the entire business was supervised, managed and controlled, so here the heart of Hanford Works lies in the administrative area located in Richland and North Richland. Substantially the same activities carried on in the Borden office building were carried on in the Hanford administrative offices. The language of the Supreme Court is particularly apt.

"In this building the directors meet and the corporate officers conceive and direct the policies of the company. Although geographically divorced from the manufacturing plants, employees working in this building dictate, control and coordinate every step of the manufacturing processes in the individual factories. By means of direct teletype wires, they maintain detailed and meticulous supervision of the plants, the local superintendents exercising discretion only in the conduct of routine matters. While no products are actually processed or sold in the building, the purchase of raw materials and supplies, the methods of production, the amounts to be produced, the quantity and character of the labor, the safety measures, the budgeting and financing, the legal matters, the labor policies and the maintenance of the plants and equipment are all directed from this building. Such are the activities of petitioner's central office which is maintained, serviced and guarded by the respondent employees." Borden...