Mitchell v. Singstad

• Decision Date: 28 September 1959
• Docket Number: Civil No. 10050.
• Citation: Mitchell v. Singstad, 177 F.Supp. 376 (D. Md. 1959)
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, v. Ole SINGSTAD and David G. Baillie, Jr., Individually and as Partners doing business as Singstad & Baillie, and Robert O. Bonnell, Chairman, Edgar T. Bennett and John J. McMullen, Constituting the State Roads Commission of Maryland, acting for and on behalf of the State of Maryland, Defendants.
• Court: U.S. District Court — District of Maryland

177 F. Supp. 376

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, v.Ole SINGSTAD and David G. Baillie, Jr., Individually and as Partners doing business as Singstad & Baillie and Robert O. Bonnell, Chairman, Edgar T. Bennett and John J. McMullen, Constituting the State Roads Commission of Maryland, acting for and on behalf of the State of Maryland, Defendants.

Civil No. 10050.

United States District Court D. Maryland.

September 28, 1959.

Ernest N. Votaw, Regional Atty., and Louis Weiner, Atty., U. S. Dept. of Labor, Chambersburg, Pa., Stuart Rothman, Sol. of Labor, John J. Babe, Asst. Sol., and James M. Miller, Washington, D. C., for plaintiff.

A. Victor Cherbonnier, New York City, Theodore Sherbow, James J. Doyle, Jr., and Sherbow & Sherbow, Baltimore, Md., for Singstad & Baillie.

C. Ferdinand Sybert, Atty. Gen. of Maryland, Joseph D. Buscher, Sp. Asst. Atty. Gen., and Charles C. Seymour, Special Atty., Baltimore, Md., for State Roads Commission of Maryland.

THOMSEN, Chief Judge.

This is an action brought by the Secretary of Labor in September, 1957, to enjoin the defendants, Ole Singstad and David G. Baillie, Jr., individually and as partners doing business as Singstad & Baillie, from violating the overtime and record-keeping provisions of the Fair Labor Standards Act of 1938, as amended(29 U.S.C.A. §§ 207,211(c)).No request is made for a money judgment.Singstad & Baillie are consulting engineers who, under contract with the State Roads Commission of Maryland(Commission) had designed and were supervising the construction of a vehicular tunnel under the Patapsco River in Baltimore Harbor.The Commission was permitted to intervene as an additional defendant.

The principal questions presented are:

I.Whether the employees of Singstad & Baillie were excluded from coverage (a) because the tunnel project was "new construction", or (b) on the ground that Singstad & Baillie "represented" the Commission and therefore were entitled to the benefit of the exclusion from the Act of "States or political subdivisions of a State".

II.Whether (a) the controversy is moot; or (b)the court should exercise its discretion to refuse an injunction.

Facts¹

The Project

The practicability of a highway crossing the Patapsco River in Baltimore Harbor by bridge or tunnel had been discussed for many years.In 1953, after preliminary traffic and engineering investigations, the Commission developed the Patapsco River Tunnel Project (also known as the Baltimore Harbor Tunnel Project), comprising a two-tube tunnel under the Patapsco River from Canton to Fairfield, in Baltimore City, and approaches connecting the tunnel with heavily traveled interstate highways which pass through Baltimore City.²The overall length of the facility is 15.2 miles, of which 1.7 miles are tunnel and open depressed ramps adjacent to the tunnel.The major purpose of the Patapsco River Tunnel was to permit the easier flow of interstate traffic by relieving the congestion in the streets of Baltimore around the head of the Harbor.³The local traffic value of a direct highway link between the two waterfront industrial areas was also a factor in the decision to build the tunnel.

The Relationship between the Commission, Greiner and Singstad & Baillie

In the ordinary operations of the Commission, its employees design the highways which it builds, prepare the plans and specifications, and supervise the construction.When its work is unusually heavy, the Commission sometimes engages outside engineering firms to prepare detailed studies, designs, plans and specifications for particular highways.In such cases, however, the Commission customarily retains complete and exclusive control of the project.

The Patapsco River Tunnel Project was an exceptional undertaking for the Commission.It was financed entirely by the proceeds of revenue bonds, issued under Chapter 561 of the Acts of Maryland of 1947, as amended by Chapter 41 of the Acts of 1947, Extraordinary Session, Maryland Code, 1951 ed., Art. 89B, §§ 106-126, 1957 ed., Art. 89B, §§ 120-140.The trust agreement under which the bonds were issued provided that payments from the construction fund (except payments of interest) should be made only with the approval both of the Commission and of J. E. Greiner Company(Greiner), the "Consulting Engineer".Greiner's duties included the issuance of engineering directives, the approval of completed construction contract plans and specifications, and the coordination of the inspection of construction.The Deputy Chief Engineer of the Commission served as the liaison between Greiner and the Commission.His duties included the review of all contractors' estimates recommended for payment by the Consulting Engineer (Greiner).

The Commission had no one on its staff competent to design or supervise the construction of the projected tunnel.The Commission, therefore, entered into a contract with Singstad & Baillie, dated June 3, 1954, under which Singstad & Baillie undertook to design, prepare the plans and specifications for, and supervise the construction of the tunnel proper, the adjacent ramps, the service building, and two emergency garages near the tunnel entrances, all subject to the authority of the Consulting Engineer (Greiner).Singstad & Baillie's contractual obligations and authority were limited to the 1.7 miles from grade point to grade point.

The general specifications for the Tunnel Project, under the heading "Definitions", stated: "Consulting Engineer—J.E. Greiner Company, the representative of the Commission duly authorized to control and coordinate the work performed under the various construction sections."Singstad & Baillie were referred to as the "Contracting Engineer", a misleading term, but their function was clearly stated as follows: "In the performance of the Work, the Contracting Engineer is the direct representative of the Commission, subject to coordination and direction by the Consulting Engineer.All activities, documents, and materials initiated by the contractor which concern the Work and which require approval or action by the Commission shall be submitted to the Contracting Engineer and will be processed through the Consulting Engineer to the Commission."

During the construction, the representatives of Singstad & Baillie gave orders to the contractors who were performing that part of the work which Singstad & Baillie had designed.Such orders were usually given after consultation with a representative of Greiner who had been designated for that purpose.Objections by the contractors to such orders were heard by representatives of Singstad & Baillie, Greiner and the Commission, meeting together.Claims presented by contractors engaged in the construction of the tunnel proper were presented to Singstad & Baillie for processing to the Commission.Recommendations as to the action to be taken on such claims were made by Singstad & Baillie and forwarded to Greiner, who, together with the Commission, decided what action should be taken.The work, designs and orders of Singstad & Baillie were usually, perhaps always, approved by Greiner and by the Commission.Singstad & Baillie were independent contractors, with specified, limited authority.

A consideration of all the documents and evidence shows that the Commission retained all of its authority except as it was modified by the provisions of the trust agreement which required the concurrence of the Consulting Engineer (Greiner) for certain purposes.

Singstad & Baillie's Operations

Singstad & Baillie are design engineers, having their principal offices in New York City.Since 1951they have been engaged in the design (including preparation of plans and specifications for construction) of vehicular tunnels for state highway departments, turnpike commissions, municipalities, and other public bodies.They regularly employ in their New York offices engineers, designers and draftsmen.Although the evidence on the question was meagre, it appears that some of these employees are not "professional employees" within the meaning of 29 U.S.C.A. § 213;Reg. 29 U.S.C.A.Appendix, § 541.3.

The contract with the Commission was unique so far as Singstad & Baillie were concerned, because they had never theretofore agreed to supervise the construction of a tunnel.Such supervision is customarily undertaken by the public authority, using its own employees, who may consult with the partners or professional employees of Singstad & Baillie.In the case of the Patapsco Harbor Tunnel, however, Singstad & Baillie themselves employed the inspectors, field clerks, rodmen, chainmen, and others, who performed nonprofessional work at the site; they also had some professional employees at the site.Singstad & Baillie opened an office in Baltimore; their top men visited Baltimore from time to time, and kept in touch by telephone with the men in the field, who sent periodic written reports to the New York office.

The provision that Singstad & Baillie prepare the plans and specifications was normal for them.Ole Singstad and other engineers at the top of the organization originated the ideas for the tunnel and passed them on to other engineers, chief draftsmen and group leaders; they, in turn, passed them down the line to designers and draftsmen, who, under supervision, worked on details of the plan.

The wages, salaries or other compensation of all of Singstad & Baillie's employees in New York and at the site in Baltimore were fixed and paid by Singstad & Baillie, who also determined their hours of work.Those employed in Maryland were insured under the Maryland Workmen's Compensation Law by a policy issued to Singstad & Baillie.None of the employees of Singstad & Baillie was covered under the Employees' Retirement System of the State of Maryland, nor were any of the employees of Singstad & Baillie hired, fired or controlled by the Commission or any other agency of the ...