H. B. Deal & Co. v. Head, 4-9702

• Decision Date: 20 October 1952
• Docket Number: No. 4-9702,4-9702
• Citation: 221 Ark. 47,251 S.W.2d 1017
• Parties: , 22 Lab.Cas. P 67,225 H. B. DEAL & CO., Inc. v. HEAD et al.
• Court: Arkansas Supreme Court

Page 1017

251 S.W.2d 1017

221 Ark. 47, 22 Lab.Cas. P 67,225

H. B. DEAL & CO., Inc. v. HEAD et al.

No. 4-9702.

Supreme Court of Arkansas.

Oct. 20, 1952.

Rehearing Denied Nov. 17, 1952.

Jabe Hoggard, El Dorado, Leo F. Laughren, St. Louis, Mo., for appellant.

Surrey E. Gilliam, Melvin E. Mayfield and Stein & Stein, El Dorado, Melvin T. Chambers and Harry Colay, Magnolia, for appellees.

McFADDIN, Justice.

The appellees, Thomas L. Head et al. (hereinafter called 'plaintiffs'), were employed by appellant, H. B. Deal & Company (hereinafter called 'Deal'), in constructing the Ozark Ordnance Plant in El Dorado; and plaintiffs filed action against Deal in the Union Circuit Court, claiming additional amounts to be due each of the plaintiffs for overtime work. While the said action was pending in the Circuit Court, Deal unsuccessfully petitioned this Court for a writ of prohibition. See Deal v. Marlin, 209 Ark. 967, 193 S.W.2d 315. After we denied prohibition, the Circuit Court action proceeded to trial on its merits before the Circuit Judge with a jury being waived.

The testimony established: (a) that the United States Government, acting through its Corps of Engineers, made a contract with Deal for the construction of the Ozark Ordnance Plant near El Dorado; (b) that in the contract, Deal was referred to as 'constructor', and the contract provided in Article 10:

'The constructor shall compensate laborers and mechanics for all hours worked by them in excess of eight hours in any one calendar day, at a rate not less than one and one-half times the basic rate of pay of such laborers and mechanics * * *'; and

(c) that the construction of the Ordnance Plant began shortly after February 16, 1942, and continued for about eighteen months, and the plaintiffs were employees of Deal in the construction of the Ordnance Plant. This action by plaintiffs was commenced in 1943; and the number of hours worked and the overtime pay claimed by each plaintiff was developed in the testimony.

The trial Court in rendering judgment for the plaintiffs made--inter alia-- findings of fact and declarations of law to the following effect:

(1) The plaintiffs in working for Deal were entitled to the benefits of the Fair Labor Standards Act of the United States, see 29 U.S.C.A. § 201 et seq., and, therefore, were entitled to recover not only for overtime, but for penalty and attorneys' fees, as allowed by the said Act.

(2) In the alternative, if the plaintiffs were not entitled to recover under the provisions of the said Fair Labor Standards Act, then at all events, the plaintiffs were entitled to recover for their overtime--less penalty and attorneys' fees--under the provisions of the contract between Deal and the United States for the construction of the Ozark Ordnance Plant.

From a judgment for the plaintiffs in accordance with the provisions of the Fair Labor Standards Act, Deal brings this appeal, and claims that the Circuit Court was in error in each and both of the two conclusions just stated. The record is voluminous. The transcript contains 3565 typewritten pages, and the briefs contain 1174 printed pages. Many questions are urged by the one side and resisted by the other in the splendid briefs before us; but we conclude that we need only decide the two points hereinafter discussed.

I. Applicability Of The Fair Labor Standards Act. That plaintiffs worked for Deal in the construction of the Ordnance Plant is admitted, but we hold that the plaintiffs are not entitled to recover under the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201. This conclusion is reached because Deal was engaged in original construction of a plant, and interstate commerce was not involved in such original construction. There are numerous cases holding that the original constructor of a war plant is not within the purview of the Fair Labor Standards Act. We cite only a few:

(1) In Noonan v. Fruco Const. Co., 140 F.2d 633, 635, the Eighth Circuit Court of Appeals, in holding that plaintiffs working for a constructor in the building of an ammunition plant were not entitled to invoke the benefits of the Fair Labor Standards Act, said:

'But the plant itself was not a commodity which could be the subject of interstate commerce. It was permanently placed upon an immovable site of land and was not a thing transportable in commerce, nor a devise or object upon which other articles could be shipped to other states. Clearly the activities which went into its construction were local. * * * We are unable to find here that the watchmen employed to guard the construction of a new building are in an occupation 'necessary' to the production of goods for commerce, even though it is contemplated that the products manufactured in the building will be sent into interstate commerce.'

(2) In Parham v. Austin Co., 158 F.2d 566, 567, the Circuit Court of Appeals of the Fifth Circuit, in holding that watchmen and guards employed by the constructor in constructing a bomber plant for the United States were not entitled to recover for overtime under the Fair Labor Standards Act, said:

'The period of employment covered by their suit is prior to any production of bombers in the plant. Their employer's connection with the plant ended upon its completion. * * * It was a new plant, as distinguished from an addition to an existing plant. Materials from out of the state were shipped to the job by train and by truck, and were used in the construction of the plant, where they came to rest. * * * There can be no process or occupation necessary to the production of goods for commerce unless goods are produced.'

(3) In Kelly v. Ford, Bacon & Davis, 162 F.2d 555, 561, the Circuit Court of Appeals of the Third Circuit, in holding that employees engaged by Ford in the construction of an aircraft engine plant for the United States were not entitled to recover for overtime under the provisions of the Fair Labor Standards Act, said 'Original construction is definitely beyond the contemplation of the Act and appellant's employment cannot be fairly removed from that category. * * * The facts here present no justification for holding that the appellant in his work for the defendant employer, was engaged in commerce or in the production of goods for commerce within the scope of the Wages and Hours Act.'

(4) In McDaniel v. Brown & Root, 172 F.2d 466, 468, the Circuit Court of Appeals for the Tenth Circuit, in holding that employees of constructors building a naval ammunition depot for the United States were not entitled to recover for overtime under the Fair Labor Standards Act, said:

'The work performed by the contractors under the contract was entirely original construction of new buildings and new facilities.'

(5) A most persuasive case is that of Spencer v. Porter, from the Eighth Circuit Court of Appeals. The first opinion, under date of April 19, 1949, is reported in 174 F.2d 731; and in that opinion, the Circuit Court of Appeals held that employees working for Porter in the construction of the Pine Bluff Arsenal for the United States were not entitled to recover for overtime under the Fair Labor Standards Act. After reaching the foregoing decision, the Circuit Court of Appeals delayed a rehearing pending the decision by the Supreme Court of the United States in U. S. Cartridge Company v. Powell, 8 Cir., 174 F.2d 718. The decision of the Supreme Court of the United States in the Cartridge case was delivered on May 8, 1950. See 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017. After the said decision of the Supreme Court of the United States, the Circuit Court of Appeals of the Eighth Circuit rendered a second opinion in the case of Spencer v. Porter, as reported in 183 F.2d 445; and in that second opinion, the Circuit Court of Appeals, having before it the United States Supreme Court opinion in the Cartridge case, said:

'This Court held in the instant case that, insofar as the appellants' claims were based on services rendered by them in connection with the construction of the Pine Bluff Arsenal, in Arkansas, the appellants were not within the coverage of the Act. We adhere to that ruling.'

(6) The case of Hartmaier v. Long, 361 Mo. 1151, 238 S.W.2d 332, deserves special notice, because the United States Supreme Court denied certiorari in the case on October 8, 1951. See 342 U.S. 833, 72 S.Ct. 48, 96 L.Ed. 630. The Supreme Court of Missouri held that the employees of Long, engaged in the construction of an aircraft engine plant for the United States, were not entitled to recover for overtime under the Fair Labor Standards Act. Nearly every question presented in the present case was considered and decided by the Supreme Court of Missouri in the Hartmaier case; and, as aforesaid, the United States Supreme Court denied certiorari.

In view of these cases and...