Moss v. Gillioz Const. Co.

• Citation: 206 F.2d 819
• Decision Date: 27 July 1953
• Docket Number: No. 4614.,4614.
• Parties: MOSS v. GILLIOZ CONST. CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

206 F.2d 819 (1953)

MOSS v. GILLIOZ CONST. CO. et al.

No. 4614.

United States Court of Appeals Tenth Circuit.

July 27, 1953.

Paul W. Brightmire, Tulsa, Okl., for appellant.

David F. Babson, Jr., Washington, D. C. (Harry N. Routzohn, Sol., Dayton, Ohio, Bessie Margolin, Asst. Sol., William A. Lowe, Atty., U. S. Dept. of Labor, Washington, D. C., and Earl Street, Reg. Atty., Dallas, Tex., on brief of amicus curiae of the Secretary of Labor).

Edward V. Sweeney, Monett, Mo., for appellees.

Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing the appellant's claim under Section 16(b) of the Fair Labor Standards Act of 1938, as amended, 52 Stat. 1060, 29 U.S.C.A. § 201, for unpaid minimum and overtime wages, liquidated damages and attorney fees.

The complaint alleged in substance that during the time material here the appellees were engaged in constructing a bridge across the Arkansas River south of Tulsa, Oklahoma, known as the 51st Street Bridge; that upon completion, the bridge was to become a part of United States interstate Highway 66, replacing the road over the 11th Street Bridge in Tulsa; that from March 20, 1951 to July 3, 1952, appellant was employed on the project as a night watchman, in which capacity he worked 102 hours a week, receiving 49½c per hour. The work was alleged to be an essential part of the construction of the bridge for use in interstate commerce and therefore employment in commerce.

In support of its motion to dismiss, appellees attached an affidavit of appellee, M. E. Gillioz, stating in substance that the contract covered only the construction of the bridge, separate contracts having been awarded for the paved approaches; that the bridge was not built to replace an existing bridge, nor did it constitute repair, maintenance, alteration, extension or improvement of an existing installation; that the bridge was not connected with any existing roadway, and was built at a place where there had never been a bridge or means of crossing the River.

The trial court expressed the view that the project was new construction, not a repair or extension of a structure or facility that had been or was being used in interstate commerce. Assuming that upon completion the bridge would become a part of the bypass route for interstate Highway 66, the court was nevertheless of the view that appellant's work on the bridge was too remote from the channels of commerce to be deemed an essential part of it. Since the judgment is based upon a motion to dismiss for failure to state a claim, we take as true all of the factual allegations in the claim, leaving only the legal conclusion from facts well pleaded.

There is no allegation or contention that the appellant was engaged in the production of goods for commerce as that phrase is used in Section 7(a) and defined in Section 3(j) of the Act. Indeed, it cannot be said that the appellant was engaged in the production of goods for commerce or in any other manner working on such goods. We therefore lay aside as inapposite cases like Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, and E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, where off-the-road employees were engaged in the production of goods to be used on a facility employed in interstate commerce, or to replace an interstate facility; and cases such as Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118, and Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 655, where the employees were deemed to be engaged in an occupation essential to the production of goods for commerce.

The narrow and decisive issue here is whether at the time complained of the appellant was "engaged in commerce" as that critical phrase of coverage is used in Section 7(a) of the Act. In the determination of that question, we keep in mind that by the use of the phrase "engaged in commerce", Congress intended to extend the coverage of the Fair Labor Standards Act "throughout the farthest reaches of the channels of interstate commerce." Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 335, 87 L.Ed. 460; Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656. To that end, if an employee's work or duties, while not actually a part of the movement of interstate commerce, are so closely and intimately connected therewith as for all practical purposes to be an essential part of it, they are held to be in the channels of commerce and the employee is therefore "engaged in commerce". Reduced to its simplest terms, the question is usually one of "physical immediacy". See Laudadio v. White Construction Co., 2 Cir., 163 F.2d 383, 386.

We know of course that employees engaged in the original construction of a project or facility are not within the channels of interstate commerce. McDaniel v. Brown & Root, Inc., 10 Cir., 172 F.2d 466, 471 and cases cited; Crabb v. Welden Bros., 164 F.2d 797; Scholl v. McWilliams Dredging Co., 8 Cir., 169 F.2d 729; Koepfle v. Garavaglia, 6 Cir., 200 F.2d 191. We also know that the particular facility or project worked upon need not be actually employed in commerce during the time of its construction. It is sufficient if the duties or work performed can be said to be repair, addition, replacement or improvement to an existing interstate facility, such as work on "entirely new abutments" to replace abutments to an existing interstate railroad bridge, Pederson v. J. F. Fitzgerald Construction Co., 318 U.S. 740, 742, 63 S.Ct. 558, 87 L.Ed. 1119; the construction and repair of dykes and revertments on the Mississippi River, Walling v. Patton-Tulley Trans. Co., 6 Cir., 134 F.2d 945; the relocation of a portion of a county road, new bridges in different locations from the old with new approaches to one, all a part of or connected with interstate highways; relocating and regrading an underground conduit and construction of a new conduit to partially replace an old one regularly used in interstate telephonic communications; the removal of an old railroad bridge and partial building of a new one, repairing a roundhouse, putting in foundations...