Goldberg v. Wade Lahar Construction Company

• Decision Date: 13 April 1961
• Docket Number: 16510.,No. 16509,16509
• Citation: 290 F.2d 408
• Parties: Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. WADE LAHAR CONSTRUCTION COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

290 F.2d 408 (1961)

Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. WADE LAHAR CONSTRUCTION COMPANY, a Corporation, Appellee.

Nos. 16509, 16510.

United States Court of Appeals Eighth Circuit.

April 13, 1961.

COPYRIGHT MATERIAL OMITTED

Bessie Margolin, Asst. Sol., U. S. Dept. of Labor, Washington, D. C., for appellant. Harold C. Nystrom, Acting Sol., and Beate Bloch, Atty., U. S. Dept. of Labor, Washington, D. C., and Earl Street, Regional Atty., Dept. of Labor, Dallas, Tex., were with her on the brief.

Herschel H. Friday, Jr., Little Rock, Ark., for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

BLACKMUN, Circuit Judge.

These are companion cases instituted by the Secretary of Labor under § 17 and § 16(c), respectively, of the Fair Labor Standards Act of 1938, Chapter 676, 52 Stat. 1060, as amended, now found as 29 U.S.C.A. § 201 et seq.¹ The complaint in the first action alleges violations by the defendant of the Act's minimum wage, maximum hours, and record keeping provisions and demands injunctive relief. The second action seeks compensation for 29 named employees of the defendant. The District Court held that the employees were engaged neither "in commerce" nor "in the production of goods for commerce" within the meaning of the Act. As a consequence, it dismissed both complaints. 179 F.Supp. 551. The Secretary has appealed.

The pertinent facts are set forth with meticulous detail in Judge Miller's opinion below. They need not be repeated at length here. We stress the following:

1. The defendant is a general contractor which has participated in reservoir clearing projects and other similar work throughout the country. Its president has been active in endeavors of this kind for the government since 1931.

2. Of the 29 employees here involved, only 3 are concerned with both the wage and overtime provisions of the statute. The remaining 26 are concerned only with overtime. It is conceded that the Act's overtime requirements were not met.

3. The project is the Table Rock Dam and Reservoir on the White River. This stream rises in the mountains of northwest Arkansas, flows northeasterly 215 miles into Missouri, and then flows southeasterly back into Arkansas for a distance of 505 miles where it empties into the Mississippi upstream from Arkansas City. Table Rock Dam itself was completed in 1959² and is situated in Taney County, Missouri, near the town of Branson. The reservoir it creates extends its arms into Barry and Stone Counties, Missouri, and into Boone and Carroll Counties, Arkansas.

4. The basic authority for the construction of the Table Rock project is found in House Document No. 917, 76th Congress, 3rd Session. This consists of reports and recommendations transmitted in 1940 to the House Committee on Flood Control. The projects recommended therein came to be authorized by the Flood Control Act of 1941, 55 Stat. 638, 645, which referred to "the prosecution of the comprehensive plan approved in the Act of June 28, 1938, for the White River Basin in Missouri and Arkansas, including the projects for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 917 * * *". The plan admittedly had as its primary purposes aid to navigation on the lower White and Mississippi Rivers, flood control, generation of electric power, and recreation.

5. The Table Rock project is the third in a series of dams built on the White and its tributaries. The first was the Norfork Dam and Reservoir in Arkansas completed in 1943. The second was the Bull Shoals Dam and Reservoir, also in Arkansas, completed in 1952. Both of these are downstream from Table Rock. The fourth is to be upstream near Beaver, Arkansas. The entire development of the White River Basin is under the supervision of the Army Corps of Engineers.

6. The defendant obtained, as a result of bids, two contracts for clearance on the Table Rock project. The work proposal submitted by the Corps listed wage scales to be paid and mentioned the Eight-Hour Law, 27 Stat. 340, as amended, now found as 40 U.S.C.A. § 321 et seq., and two other statutes. It made no reference to the Fair Labor Standards Act.

7. The defendant's clearance work involved certain areas of the reservoir in both Arkansas and Missouri but specifically did not involve the damsite itself. The clearing for the dam's immediate area was performed by another contractor.

8. The cost of the defendant's work was paid by the government out of appropriations for the overall project.

9. The reservoir has a series of "pools" located between elevations or contours. The normal level of the water in the reservoir is at Elevation 915 and the "power pool" consists of the area between that elevation and the lower Elevation 846. The area between Elevation 915 and 936 (or thereabouts) is the "flood pool" which will contain water only during periods of flood. The entire reservoir up to 936 contains approximately 52,000 acres. 10,000 of these lie above 915.

10. Complete clearing of all timber was accomplished in certain areas from Elevation 915 down to either 874 or 840 (the clearing to the lower of these was in the public use areas). In certain other areas only modified clearing was effected down to 874 or 840. This consisted of clearing, by removal or topping, of only those trees which projected above the stated elevation but most of the trees where this type of clearing was performed were left standing. Trash and brush were allowed to remain there. The practice was to clear only one side of the stream and to leave the opposite side totally uncleared. In still other areas, no clearing of any kind was effected even though these locations were between the same contour lines as the areas for clearance or modified clearance. In the flood pool itself there was no clearing. The defendant's work, on both complete and modified clearance, covered 12,700 acres and 122 miles of a total of 857 miles of "shoreline".

The Secretary's position on appeal is that the clearing work, being on a multiple purpose project constructed with federal funds as a part of the comprehensive development program of the White River Basin for the combined purposes of navigation improvement, flood control, power, and other beneficial uses, "is in practical effect so integral a part of the improvement of an interstate instrumentality as to be `in commerce' within the coverage" of the Act. He cites as controlling the 1952 case of Tobin v. Pennington-Winter Const. Co., 10 Cir., 198 F.2d 334, certiorari denied sub nom. Pennington-Winter Construction Co. v. Durkin, 345 U.S. 915, 73 S.Ct. 727, 97 L.Ed. 1349. He also refers to the established propositions that the determination of need for a particular government project is a matter of legislative judgment and is not for the courts and that the Congress under the commerce clause may constitutionally reach the lesser aspects of a single primary project. He urges that the same "practical realistic approach" is applicable to coverage under the Act. He argues secondarily that the employees here were engaged in improving the navigability of a waterway between two states and that for this reason they are covered.

The defendant's position is that the facts of each case must control its disposition; that the recent case of Mitchell v. H. B. Zachry Co., 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753, not mentioned in the Secretary's brief, is significant; that the general propositions urged by the Secretary have no application here; that Pennington-Winter is not relevant; that the record is silent as to the use of the reservoir for commerce; and that such use in any event is purely local.

The statute. § 206(a) establishes the minimum wage:

"Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates — * * *"

§ 207(a) is concerned with maximum hours:

"Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

§ 211(c) requires apropriate records. Violation of these provisions is made unlawful by § 215(a) (2) and (5). § 217 and § 216(c) authorize actions, such as these, by the Secretary.

The terms "in commerce" and "in the production of goods for commerce" appear not only in § 206(a) and § 207(a) but, as well, in § 202(a) setting forth the findings of Congress, and in § 208(a). They are, of course, vital in the interpretation and application of the Act. Some of the words in these phrases are in turn defined in § 203.³

The Supreme Court authority. Those sections of the Act which are involved here have been the subject of extensive litigation. Since February 3, 1941, when a united court held the Act to be within the commerce power of Congress and not violative of the Fifth and Tenth Amendments, United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609; Opp Cotton Mills v. Administrator of Wage and Hour Division, 312 U.S. 126, 657, 61 S.Ct. 524, 85 L.Ed. 624, these sections have been subjected to scrutiny and interpretation in over 30 cases in the Supreme Court itself.⁴

While some of these decisions by our highest court have been unanimous, most of them have not and in several instances the particular case or the entire decisional process in this statutory area has been characterized as presenting "a difficult problem" (Lublin, 358 U.S. at page 212, 79 S.Ct. at page 264), as "rewarding as an attempt to square the circle" (Kirschbaum, 316 U.S. at page 520, 62 S.Ct. at page 1118), as requiring "painstaking appraisal of all the variant elements" and as...