Kelly v. Ford, Bacon & Davis

• Decision Date: 12 June 1947
• Docket Number: No. 9211.,9211.
• Citation: 162 F.2d 555
• Parties: KELLY v. FORD, BACON & DAVIS, Inc.
• Court: U.S. Court of Appeals — Third Circuit

162 F.2d 555 (1947)

KELLY v. FORD, BACON & DAVIS, Inc.

No. 9211.

Circuit Court of Appeals, Third Circuit.

Argued December 16, 1946.

Decided June 12, 1947.

As Amended July 10, 1947.

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

Harry E. Kohn, of Philadelphia, Pa., for appellee.

Frederick U. Reel, of Washington, D. C., amicus curiæ.

Before GOODRICH and McLAUGHLIN, Circuit Judges, and MURPHY, District Judge.

McLAUGHLIN, Circuit Judge.

This is an appeal from a judgment in the District Court in favor of the defendant employer in an action brought under Section 16 (b) of the Fair Labor Standards Act of 1938¹ by the plaintiff employee to recover overtime compensation allegedly due by virtue of Section 7 of the Act. The Administrator of the Wages and Hours Division as amicus curiæ filed a brief and participated in the oral argument in support of the appellant.

Ford, Bacon & Davis, Inc., the defendant employer, is a construction engineering corporation. On May 22, 1941 it entered into a contract with Jacobs Aircraft Engine Company providing for certain supervisory and consultant services relating to the latter's then existing plant at Pottstown, Pa., which manufactured airplane parts and motors for interstate commerce. On October 31, 1941, Ford, Bacon & Davis, Inc., made an entirely new and separate contract with the Jacobs Company and Defense Plant Corporation for the design and construction of another aircraft engine plant also in Pottstown. Kelly, the plaintiff appellant, was employed by the defendant some twenty-three months in connection with the extra work arising in the course of the erection of the new factory. As changes in design and construction occurred they were taken care of by the issuance of work orders. The latter were authorizations by Defense Plant, Jacobs, and the appellee, to various subcontractors for such extra original construction as was required and had not been taken care of in the original contracts. Kelly's duties were confined solely to those work orders. He would check the fact whether an "extra" was required and, if it was, ascertain its cost, prepare a work order and, after this had been approved, mail or otherwise have it delivered with forwarding letters to the particular subcontractors.

In the District Court, where the case was tried without a jury, the employer contended that Kelly was an executive and therefore excluded from the provisions of the Act. The Trial Court found as a fact that "plaintiff's duties were to check facts and follow routine procedure and did not involve the use of discretion and independent judgment." The Court also found that plaintiff's compensation was based upon a forty hour week and that his class of employees was not guaranteed a minimum weekly or monthly salary. The Court refused defendant's requests to find that plaintiff was an administrative employee who exercised independent judgment and discretion.² The record fully supports the Court's action. Appellee presses the point because the Trial Judge said in his opinion 71 F.Supp. 311, 314 that it was unnecessary to discuss "the question whether he Kelly belonged to one of the exempt classes under the Act."³ Since the above findings of fact show that the plaintiff was not included in any of the exempt classes, they effectively dispose of that issue.

Appellant first argues that his employer was engaged in the production of goods for commerce. If the work involved had been of the type before us in Walling v. McCrady Const. Co., 3 Cir., 156 F.2d 932, 937, his position would be justified. In that case we found that the construction jobs passed upon were "all integral parts of existing plants and that their purpose was to continue the operation of the plants, all of which are producing goods for interstate commerce." In the present situation we do not have as in McCrady an extension of current facilities. The owner was Defense Plant Corporation, not the Jacobs Company. It was stipulated between the parties that the Ford, Bacon & Davis agreement with Jacobs of May 1941 "was in no-wise connected with the contract for design and construction of the aircraft engine plant the new plant." The Jacobs factory production was exclusively for the Canadian Government. The new plant was intended for the construction of airplane engines for the United States from materials owned by the United States.⁴ It was a $13,000,000 project, independent of the Jacobs factory, and while the record itself is barren as to how far away its location was from the Jacobs' building, there is nothing in the evidence to indicate that it was near by. Nor is there any testimony that the Jacobs Company had reached the limits of its manufacturing capacity in its own plant. Plainly the erection of the factory for the Defense Corporation was new construction and as such not within the coverage of the Wages and Hours Act, 29 U.S.C.A. § 201 et seq. Walling v. McCrady Const. Co., supra; Wells v. Ford, Bacon & Davis, Inc., D.C.W.D.Ky., Dec. 31, 1943, affirmed, 6 Cir., 145 F.2d 240; Noonan v. Fruco Construction Co., 8 Cir., 140 F.2d 663; Parham v. Austin Co., 5 Cir., 158 F.2d 566. And this is the interpretation generally followed by the Wage and Hour Division of the Department of Labor.⁵ Roland Electric Co. v. Walling, 1946, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Ritch v. Puget Sound Bridge & Dredging Co., 9 Cir., 156 F.2d 334, and Pedersen v. J. F. Fitzgerald, 318 U.S. 740, 742, 63 S.Ct. 558, 87 L.Ed. 1119, referred to by appellant, all had to do with repairs, replacement or extension of existing facilities.

Prior to the new building's being finished, production was started in a part of it by then completed. Bartlett, the project manager, testified "that most of the time the construction was ahead of the design." As a result there was a change in the ventilating system with plaintiff preparing the necessary extra work orders. This is further urged as participation by the plaintiff in production of goods for commerce on the theory that it amounts to repair of existing facilities. No details of the particular work or how much plaintiff had to do with it are given. There is nothing to suggest that the faulty ventilation was not checked and corrected as a more or less ordinary incident in the course of original construction. We agree with the District Judge that the proof as to the item was "wholly insufficient" to support plaintiff's contention regarding it. Walling v. Jacksonville Paper Co., 317 U. S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460. And see Wage and Hour Manual Cumulative Edition 1944-1945, p. 93.

It is then urged on behalf of the plaintiff that irrespective of whether the defendant employer was engaged in commerce or in the production of goods therefor, plaintiff was so occupied because of the nature of his own position. Plaintiff's individual activities are the test of whether he has the "immediacy of participancy" in interstate commerce as to bring him within the "in commerce" clause of the Act. McLeod v. Threlkeld, 319 U. S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538; Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; Skidmore v. John J. Casale, Inc., 2 Cir., 160 F.2d 527, 529.

Under this branch of the appeal it is first contended that Kelly in processing the work orders performed an essential preliminary step to the shipment of goods in interstate commerce and was, therefore, embraced within the intendment of the Act. But those work orders were in reality contracts for additional original construction. They were not for the purchase of materials. The latter were neither ordered, purchased or transported by Kelly or his employer. As a result of those work order contracts the Trial Court found that materials and equipment did come into Pennsylvania from without that state. But those materials and equipment came to the subcontractors for use by them in their individual part of the original construction of the new plant. The lower Court found as a fact that "Substantially all of the plaintiff's time was spent at the construction site in negotiations and consultations with subcontractors, representatives of Defense Plant Corporation and Jacobs Aircraft Company and other employees of defendant employer solely in original construction work at the project site; in examining contracts; in making technical computations and in drafting contracts." There is ample basis in the record for such finding.

So while the plaintiff may have collaterally affected the movements of the materials and equipment we do not consider that it is within the contemplation of the Act to say that what he did bore the necessary close tie to commerce called for by the decisions.⁶ The enforcement of the pertinent provisions of the Act, as the Supreme Court has said, involves "the courts in the empiric process of drawing lines from case to case, and inevitably nice lines" (10 East 40th Street Bldg. v. Callus, 325 U.S. 578, 579, 65 S.Ct. 1227, 1228, 89 L.Ed. 1806, 161 A.L.R. 1263), with the Courts having "the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations." Kirschbaum v. Walling, supra 316 U.S. 517, 62 S.Ct. 1120. Merely because an occupation is indispensable in the sense of being included in the long line of causation which brings about so complicated a result as finished goods does not bring it within the scope of the Fair Labor Standards Act. 10 East 40th Street Bldg. v. Callus, supra. This is so here where an essentially local activity is involved and where the gathering of material for the work orders and attending to the mechanics of their approval by three sets of principals is in itself so far removed from the subcontractors' material and equipment shipped to the latter for their work on an intrastate construction. Indeed there is nothing in the record to show that ...