Parham v. Austin Co., 11622.
| Decision Date | 17 December 1946 |
| Docket Number | No. 11622.,11622. |
| Citation | 158 F.2d 566 |
| Parties | PARHAM et al. v. AUSTIN CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William E. Allen, of Fort Worth, Tex., for appellants.
Carl Wright Johnson and Woodville J. Rogers, both of San Antonio, Tex., for appellee.
Before SIBLEY, WALLER, and LEE, Circuit Judges.
The Appellants were watchmen and guards employed by the Appellee during the time that the latter was constructing, for the United States, a plant at which it was intended that bombers would be made upon completion of the plant. These guards brought suit under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to recover the statutory wages, damages, etc. The period of employment covered by their suit is prior to any production of bombers in the plant. Their employer's connection with the plant ended upon its completion. Appellants' duty was to protect the job and its materials against thieves, spies, and saboteurs, and to that end to see that no improper persons entered the grounds on trains, trucks, automobiles, or otherwise. They were required to check thoroughly those coming in and going out of the enclosure and to let no one enter who did not have proper credentials and to let no one carry away anything that should not go out.
It was a new plant, as distinguished from an addition to an existing plant. Materials from out of the state were shipped to the job by train and by truck, and were used in the construction of the plant, where they came to rest. Plaintiffs had nothing to do with ordering, checking, unloading, billing, storing, or paying for, these materials. They did, however, open the gate to let into the grounds trains on which there was equipment that had come from out of the state, but their purpose was to check lest unauthorized persons should come in with the train. They also watched for broken seals on cars, thereby performing a police function for the purpose of discovering if any of the cars had been broken into and the commodities stolen therefrom.
The Court below held that these employees were not engaged in interstate commerce, nor in production of goods for commerce, nor in any process or occupation necessary to the production of goods, during the period of their employment.
We agree. The purpose of the guards at the railroad gates was not to keep out, or let in, trains, but to prevent the entry of unauthorized persons. The same was true as to trucks. The guards were not facilitating the movement of goods in interstate commerce. Moreover, the goods that were thus brought in were material used in construction that came to rest in the building under construction.
No goods were produced during the period of their employment. Their employer was not then, nor at any other time, engaged in the production of goods for commerce.
The only other question is whether or not these guards were "in any other...
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...court. Consult Reed v. Murphey, 5 Cir., 168 F.2d 257, 260; Cooper v. Rust Eng. Co., D.C.W.D.Ky., 84 F.Supp. 149, 150; Parham v. Austin Co., 5 Cir., 158 F.2d 566, 567. After February 1, 1943. Plaintiffs claim that after February 1, 1943, their firemen, guards, waterboys, and nurse were withi......
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...are, however, some federal appellate decisions which strongly point to the contrary conclusion as applied to this case. In Parham v. Austin Co., 5 Cir., 158 F.2d 566, and Noonan v. Fruco Construction Co., 8 Cir., 140 F.2d 633, it was held that employees of a contractor who is engaged in con......
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