Mitchell v. SOUTHWEST ENGINEERING COMPANY
| Decision Date | 10 February 1959 |
| Docket Number | No. 1586.,1586. |
| Citation | 170 F. Supp. 310 |
| Parties | James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, v. SOUTHWEST ENGINEERING COMPANY, Inc., a corporation, Paul H. Anderson and Robert E. Cloepfil, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Stuart Rothman, Solicitor, Washington, D. C., Harper Barnes, Regional Atty., John Weiss, Gerald Z. Rossow, Atty., Dept. of Labor, Kansas City, Mo., for plaintiff.
Wear & Wear, Springfield, Mo., for defendant.
This is an action by the Secretary of Labor to enjoin defendants from violating the provisions of Sections 15(a)(2) and (5) of the Fair Labor Standards Act of 1938, as amended, Title 29 U.S.C.A. §§ 201-219, alleging failure to pay time and one-half to employees for work performed in excess of forty hours per week as required by Section 7 of the Act, and failure to keep and maintain adequate records as required by Section 11(c) and implementing administrative regulations, 29 C.F.R., Section 516. Plaintiff seeks injunctive relief against the corporation as an entity and against Paul H. Anderson, its President and principal stockholder, and Robert E. Cloepfil, its Vice President and Superintendent of Construction.
Southwest Engineering Company is a Missouri corporation engaged in the construction business, and having its principal office in Springfield, Missouri. Through the years 1957 and 1958, it had contracted with the Civil Aeronautics Administration for some fifteen to eighteen projects. These projects were scattered throughout Missouri, Kansas, Iowa and other states, and consisted of contracts for the modification and improvement of facilities at existing airports and certain other facilities for airplane guidance and communication which will be described in some detail since the construction of these facilities constitutes the principal controversy between the parties here.
Over the past thirty years the Civil Aeronautics Administration has been constructing, and is in the process of continually improving, a system of national airways. Guidance of air traffic is accomplished by means of various visual, electrical and electronic devices. A pattern of national air routes has been established along which commercial and other aircraft may fly and obtain the benefits of intelligence furnished by the Civil Aeronautics Administration as to flight conditions, weather conditions and electronic guidance. As scientific knowledge has grown, the facilities of the Civil Aeronautics Administration have been improved. In 1928, light beacons were placed every ten or twelve miles along the airways as visual aid in night flying. Progression of advance in the way of direction-finding apparatus has carried through several types of low frequency radio transmissions, the installation of high frequency radio equipment, and improvements on the high frequency systems.
Defendant company contracted to construct the buildings in which the CAA would later house some of the newer types of high frequency radio equipment. There were three general kinds of stations involved. They are designated as Variable Course Omni Range Stations (VOR Stations), Variable Course Omni Range Tactical Air Navigation Stations (VORTAC Stations) and Peripheral Stations. The company prepared the sites, and constructed the buildings, towers, driveways and the conduits for electrical wiring. Once the facility had been prepared to this point, defendant company's work was complete, and the CAA installed the electronic equipment with its own personnel.
There is no question as to the applicability of the Fair Labor Standards Act to employees working on the improvement, modification or alteration of existing instrumentalities of interstate commerce. They are engaged in commerce within the purview of the Act. J. F. Fitzgerald Const. Co. v. Pedersen, 1945, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; Overstreet v. North Shore Corporation, 1943, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; Tobin v. Johnson, 8 Cir., 1952, 198 F.2d 130. Where defendants engaged in this type of work, they have complied with the provisions of the Act.
The controversy centers on the construction of the new buildings, isolated from the existing facilities, for the VOR, VORTAC and Peripheral stations. Defendants contend that the construction of these stations come within the "new construction" doctrine, and work performed thereon was not within the scope of the Fair Labor Standards Act. Plaintiff takes the position that the "new construction rule" is inapplicable, and that employees working in the construction of housing for the VOR, VORTAC and Peripheral stations were engaged in commerce within the meaning of the Act. It is admitted that the overtime and record keeping provisions of the Fair Labor Standards Act have not been met so far as the housing construction is concerned. In all other respects defendants are in compliance with the Act.
Plaintiff has gone to considerable pains to demonstrate that the VOR, VORTAC and Peripheral stations are an improvement of an existing facility of interstate commerce. Under the evidence adduced, there can be no reasonable question of this premise. The facilities involved were an improvement and refinement of existing methods in the guidance and control of air traffic. A great deal of time, effort and money is being spent to keep pace with the rapid technological advances in aircraft design and with the increasing volume of air traffic as a means of transportation. It is true that these buildings were constructed in isolated areas, and until they were equipped by the CAA for the purposes for which they were built they had no direct connection with an existing facility. However, they were designed and built to serve as a component part of an existing whole, and in point of fact they merely supplemented and improved prior control and guidance systems.
With these facts established, there can be no question as to the applicability of the Fair Labor Standards Act to this type of work.
Section 7(a) of the Act requires that "no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, * * *" (Emphasis added.) Plaintiff does not contend that the employees here were engaged in the production of goods for commerce within the meaning of this section. The contention simply is that the employees were engaged in commerce.
It is not necessary to embark on an extended journey through case precedent to trace the history of the so-called "new construction rule". Its growth and development is indicated in Southern Pacific Co. v. Gileo, 1956, 351 U.S. 493, 76 S.Ct. 952, 100 L.Ed 1357. It is sufficient to say that the rule came about in an effort to relegate the difficult problems presented when a clear line of delineation was sought concerning the scope of coverage of such federal legislation as the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. and the Fair Labor Standards Act. Three recent Supreme Court cases have set the problem to rest. The principal case is Mitchell v. C. W. Vollmer & Co., Inc., 1955, 349 U.S. 427, 75 S.Ct. 860, 862, 99 L.Ed. 1196. That case involved employees who were working on the construction of the Algiers Lock, a new appendage to the already existing Gulf Intracoastal Waterway. Previous facilities had become inadequate in handling traffic, and the new canal would provide an alternate route to relieve congestion. The lock was new construction in the sense that it did not follow any pre-existing waterway, and was physically separated from existing facilities. The Court held the employees were engaged in commerce. It was pointed out that construction of the new route was as much an improvement of an existing facility as dredging and widening of the old canal would have been. One paragraph of that case has been widely quoted:
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Wirtz v. RE Lee Electric Company
...Nello L. Teer Co., 208 F.Supp. 552 (M.D.N.C. 1962); Mitchell v. Hildebrand, 181 F. Supp. 154 (D.C.Conn.1960); Mitchell v. Southwest Engineering Co., 170 F.Supp. 310 (W.D.Mo.1959), reversed in part on a different point, 271 F.2d 427 (8 Cir. 1959). At Fort Belvoir the defendant's employees in......
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Mitchell v. SOUTHWEST ENGINEERING COMPANY, INC.
...contracts. The court held that the Act applied and found defendants to be in violation but denied the injunction. Mitchell v. Southwest Engineering Co., D.C., 170 F.Supp. 310. The Secretary appeals from the It appears that appellee Southwest Engineering Company is a corporation engaged in t......
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