Laudadio v. White Const. Co.

• Decision Date: 30 July 1947
• Docket Number: No. 255,Docket 20578.,255
• Citation: 163 F.2d 383
• Parties: LAUDADIO et al. v. WHITE CONST. CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

163 F.2d 383 (1947)

LAUDADIO et al. v. WHITE CONST. CO., Inc., et al.

No. 255, Docket 20578.

Circuit Court of Appeals, Second Circuit.

July 30, 1947.

Solomon Rothfeld, of New York City (Charles R. Katz and Sidney S. Wolchok, both of New York City, of counsel), for appellants.

John F. X. McGohey, U.S.Atty., of New York City (Louis Mansdorf, Asst. U. S. Atty., of New York City, of counsel), for appellees.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

This is an action brought under the Fair Labor Standards Act by four employees to recover from their employers overtime compensation, liquidated damages and attorney's fees. It was commenced in a state court, removed to the federal court and tried without a jury. The trial judge ruled that during their employment by the defendants none of the plaintiffs was "engaged in commerce or in the production of goods for commerce," within the meaning of section 7 of the Act, 29 U.S.C.A. § 207, and that plaintiff Mertens was employed in an administrative capacity during the entire term of his employment and was therefore within the exemption of section 13(a) (1), 29 U.S.C.A. § 213(a) (1), as defined by the Administrator, Code of Federal Regulations, Title 29, § 541.2(A) and (B) (1). From the judgment dismissing their complaint upon the merits, the plaintiffs have appealed.¹

During all times pertinent to this action the defendants were engaged in a joint venture under a cost-plus-fixed-fee contract with the Navy Department of the United States for the construction of a naval air station at Floyd Bennett Airfield, in Brooklyn, N. Y.² Their work consisted of the construction of a number of new buildings for officers' quarters, barracks, mess halls, recreation halls and a dispensary, as well as the construction of "hangars, runways, roads, seaplane ramps, docks, sewerage and light systems, telephone and power lines, steam installments installations and other aviation field appurtenances at Floyd Bennett Field."³ Most of the construction work was original construction; but if extensions to existing land runways are to be considered as "reconstruction," about 5% of the total cost of all work performed under the contract with the Navy Department constituted "reconstruction." The plaintiffs were employed by the defendants in work on the joint venture. Laudadio and Michaels performed the work of "estimators" or "quantity take-off men"; that is, from architectural or engineering drawings supplied to them they made lists of the kinds and amounts of materials (without prices) needed for the work depicted on the drawings. Such list, called a "bill of material," was then handed to the defendants' purchasing department, which thereafter procured the materials, sometimes from vendors outside the state of New York. The main work of the other two plaintiffs, Kreymborg and Mertens, was that of architectural draftsmen, that is, under instructions from superiors, they prepared plans to scale for the buildings to be constructed. Mertens, who was hired as an "Architect" also checked and corrected the work of other draftsmen, and the court found that he was an "administrative" employee and therefore exempt from the coverage of the Act.⁴ The parties stipulated the amount of overtime compensation which will be due, "if the Court finds that during each week of their employment by defendants, the plaintiffs, by reason of their regularly performed services, were covered by the Fair Labor Standards Act."⁵

All the appellants contend that they were "engaged in commerce" because (1) they performed work on an existing instrumentality of interstate commerce, and (2) a substantial part of their activities related to the ordering of goods from other states. Appellant Mertens contends also that the court erred in holding him exempt as an administrative employee.

The first contention is based on the assumed premise that Floyd Bennett Field continued to be an instrumentality of commerce after the Navy took it over for a naval air station. The record is entirely barren of any evidence as to what use was made of the Field during the time the defendants were performing their contract with the Navy. If the Field were used solely to train air personnel of the Navy, it would seem to be an instrumentality of war rather than an instrumentality of commerce. See Divins v. Hazeltine Electronics Corp., 2 Cir., 163 F.2d 100, But we are not disposed to affirm for failure of proof on that point. The case was not tried on any such theory. Moreover, if the facts were known, it is extremely likely that the Navy did make some use of the Field for interstate commerce, such as the arrival and departure of officers, men and mail in interstate journeys. For purposes of decision we shall assume that to some extent interstate commerce was carried on at the Field after the Navy took it over. Hence the defendants' work, at least in so far as it involved extending existing runways, reconstructing the control tower of the Administration Building and making additions to existing hangars, was work on instrumentalities of commerce, and the defendants were "engaged in commerce," since persons who maintain and repair facilities of interstate commerce are so engaged. Overstreet v. North Shore Corporation, 318 U.S. 125, 130, 63 S.Ct. 494, 87 L.Ed. 656; J. F. Fitzgerald Const. Co. v. Pedersen, 324 U.S. 720, 724, 65 S.Ct. 892, 89 L.Ed. 1316; Walling v. Patton-Tulley Transp. Co., 6 Cir., 134 F.2d 945; Walling v. McCrady Const. Co., 3 Cir., 156 F.2d 932; Ritch v. Puget Sound Bridge & Dredging Co., 9 Cir., 156 F.2d 334.

Whether the plaintiffs are within the coverage of the Act depends upon the character of their own activities, not upon the nature of their employer's business. Overstreet v. North Shore Corporation, 318 U.S. 125, 132, 63 S.Ct. 494, 87 L.Ed. 656; Skidmore v. John J. Casale, Inc., 2 Cir., 160 F.2d 527, cert. den. 67 S.Ct. 1205. The test to determine whether an employee is engaged in commerce is stated in McLeod v. Threlkeld, 319 U.S. 491, at page 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538, to be "not whether the employee's activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it." Such a test is not easy of application. The plaintiffs' work in connection with the above mentioned instrumentalities of commerce was merely making drawings therefor to scale or preparing "bills of material." Nevertheless, this paper work was essential to the repairs and alterations made by other employees of the defendants and was, in our opinion, sufficiently closely related to the movement of commerce to justify a holding that the plaintiffs were "engaged in commerce."⁶ However, the record does not enable us to determine to what extent the plaintiffs performed work pertaining to the instrumentalities above mentioned. There are no findings of fact on this issue and the evidence is conflicting as to their work on entensions of the runways.⁷ Such conflict cannot be resolved by an appellate court.

In so far as the plaintiffs' work consisted of preparing plans and bills of material for new buildings or for generally making over a small commercial airfield into a large naval air station, we do not think the work pertained to instrumentalities of commerce. It is the physical immediacy of connection with actual transportation movement that determines whether an employee's activities cause him to be "engaged in commerce," as we understand it. Certainly the plaintiffs' work with respect to construction of officers' quarters, barracks, mess halls, recreation halls, etc., is more remotely connected with interstate...