Kelly v. Ford, Bacon & Davis

• Decision Date: 07 August 1947
• Docket Number: Civ. A. No. 4784.
• Parties: KELLY v. FORD, BACON & DAVIS, Inc.
• Court: U.S. District Court — Western District of Pennsylvania

71 F. Supp. 311

KELLY v. FORD, BACON & DAVIS, Inc.

Civ. A. No. 4784.

District Court, E. D. Pennsylvania.

March 22, 1946.

Motion to Amend Denied May 31, 1946.

Judgment Affirmed August 7, 1947.

Harry R. Kozart, of Philadelphia, Pa., for plaintiff.

Bell, Murdoch, Paxson & Dilworth, of Philadelphia, Pa., and Davies, Auerbach, Cornell & Hardy, of New York City, for defendant.

Judgment Affirmed August 7, 1947. See 162 F.2d 555.

KIRKPATRICK, District Judge.

This is a suit brought under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to recover overtime pay together with the statutory penalty and attorneys' fees. The defendant-employer was engaged in building a factory for the manufacture of airplane engines, at Pottstown, Pennsylvania, and the plaintiff's employment had to do entirely with extra work orders for the construction project. He was hired at the plant site and did all of his work there, but contends that the character of his work was such that the Fair Labor Standards Act applied to him.

1. The plaintiff was not engaged in production of goods for commerce.

It appears that the defendant, in addition to the contract relating to the construction of the plant, in connection with which the plaintiff performed substantially all his work, had an earlier contract with Jacobs Aircraft Engine Company dated May 22, 1941, which provided for the supervision by Ford, Bacon & Davis of the Jacobs Company's operations in manufacturing airplane motors, including consultant services covering policies, controls, organization, personnel and other management. It also appears that, as certain parts of the factory being constructed under the construction contract were completed, the Jacobs Company moved in and manufactured airplane motors in the completed portions. On one occasion Kelly did some work on extra work orders (the exact extent of which does not appear), in connection with the installation, or possibly the alteration, of a ventilating system in a portion of the building which had been completed and in which the Jacobs Company was carrying on manufacturing operations. This furnishes the only evidence on which the plaintiff can base a claim that he had anything to do with the production of goods for commerce. It is wholly insufficient to support any finding as requested by the plaintiff.

It was stipulated that the contract for supervision of operations "was in nowise connected with the contract for design and construction of the aircraft engine plant * * * which contract was for an independent consideration, and the work under which was entirely independent of the services provided for in the first contract of May, 1941. * * *" There is nothing whatever in evidence to show how much work the plaintiff did in connection with the ventilating system or of what it consisted or how much of the installation was considered an "extra" or how or with whom the work was contracted for. So far as appears, it may have accounted for a wholly insignificant part of the time which the plaintiff spent as an employee of the defendant. In fact, it could hardly have been otherwise, when one takes into consideration the extensive operations being carried on by the defendant in the construction of the plant and the nature of the plaintiff's work in connection with them. Moreover, if it had been of any great importance, it is a fair assumption that the plaintiff would have developed it, the burden having been on him to bring himself within the terms of the Act.

2. Nor was the plaintiff engaged in commerce.

As mentioned above, it was stipulated that the plaintiff's employment was not in connection with the earlier contract for supervision of the Jacobs Company's operations by the defendant, but was in connection with the work being done under the contract for the construction of the plant — an entirely independent activity of the defendant. It is settled that original construction of a factory building is not interstate commerce even though the completed factory may be intended for the production of goods for commerce. The fact that the plaintiff's employment had to do entirely with construction work, which was not commerce, must be borne in mind.

It is, of course, the activities of the employee which control rather than those of his employer, but where the employer is engaged in commerce, then, if the employee's activities are an essential part of the business (commerce) the employee is engaged in commerce. Thus in Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, a rate clerk employed by a motor transportation company was held to be...