Slover v. Wathen

• Decision Date: 06 January 1944
• Docket Number: No. 5141.,5141.
• Citation: 140 F.2d 258
• Parties: SLOVER v. WATHEN et al. (SKEEN et al., Interveners).
• Court: U.S. Court of Appeals — Fourth Circuit

140 F.2d 258 (1944)

SLOVER v. WATHEN et al. (SKEEN et al., Interveners).

No. 5141.

Circuit Court of Appeals, Fourth Circuit.

January 6, 1944.

Paul Berman, of Baltimore, Md. (Eugene A. Alexander, III, and Marcy M. Ehudin, both of Baltimore, Md., on the brief) for appellant.

John H. Skeen, of Baltimore, Md. (Beeuwkes, Skeen, Oppenheimer & Frank, of Baltimore, Md., on the brief), for appellees.

Joseph I. Nachman, Atty., U. S. Department of Labor, of Washington, D. C. (Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., Bennett H. Barnes, Regional Atty., of Richmond, Va., and Morton Liftin, Atty., U. S. Department of Labor, of Washington, D. C., on the brief), for Administrator of Wage and Hour Division, U. S. Department of Labor, as amicus curiae.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from a final judgment of the United States District Court for the District of Maryland, dismissing the action of plaintiff-appellant (hereinafter called Slover) which was brought to recover unpaid minimum wages, overtime compensation, liquidated damages, attorneys' fees, and costs, pursuant to the provisions of § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. (hereinafter called the Act). The defendants-appellees are copartners trading under the firm names of Wathen and Company (hereinafter called Wathen) and Patapsco Dry Dock Company (hereinafter called Patapsco). Patapsco was engaged in the repair of barges operated by Wathen. The undisputed testimony showed that these barges moved almost exclusively in interstate commerce. Slover was hired and paid by Patapsco except for the last two months of his employment; during this period he was employed by Wathen.

Wathen and Patapsco lease a pier approximately 76 feet wide and 900 feet long in the harbor area of Baltimore City. The pier contains a small building, which serves as an office for both businesses, and several other buildings in which tools and equipment are stored. Although separate sets of books were kept for each company, a common telephone was used by both firms.

No dry dock facilities were available and the barges were repaired in the waters adjacent to the pier. The average time a barge was tied up at the pier for repairs was one month.

It is apparent from the record that Wathen and Patapsco are one and the same for all practical purposes. The owners of both companies are identical, they use a common office and pier to conduct their business, and the respective employees work interchangeably for both firms. More than 90% of Patapsco's business was repairing the barges operated by Wathen.

The District Court, stating that there was a "violent conflict" in the evidence regarding the exact nature of the work performed by Slover, concluded that the duties of Slover for which he was employed were those "of a watchman, hired to answer night telephone calls, and in a general way to guard the dock." Accordingly, the court held that Slover did not come within the Act. The complaint was dismissed and Slover has duly appealed to this Court.

In Milam v. Texas Spring & Wheel Co., 1941, 157 S.W.2d 653, the Texas Court of Civil Appeals held: "A night watchman guarding premises on which products sold in interstate commerce are manufactured and occasionally taking * * * telephone calls after business hours for the man in charge of the employer's business and reporting them to him at his residence, is `engaged in commerce' within the federal wage and hour act."

We feel that this statement is applicable to the instant case. The barges operated by Wathen moved in interstate commerce and they therefore were instrumentalities of interstate commerce. Newport News S. & Dry Dock Co. v. N. L. R. B., 4 Cir., 101 F.2d 841, 843. And certainly if persons employed in the operation of a draw bridge spanning navigable waters were engaged "in commerce", then surely Slover, a watchman of the pier to which the interstate barges were tied, was equally engaged "in commerce". Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494. Slover's work in this connection was as necessary and as indispensable to the interstate commerce of the barges as work done on railroad tracks over which interstate trains operate and work done on highways over which interstate vehicular traffic runs, are necessary and indispensable to interstate transportation by rail and road. Cf. Walling v. Patton-Tulley Transp. Co., 6 Cir., 134 F.2d 945; Walling v. Craig, D.C.Minn.1943, 53 F.Supp. 479; Pedersen v. J. F. Fitzgerald Co., 318 U.S. 740, modified 318 U.S. 742, 63 S.Ct. 558; Atkocus v. Terker, Mun.Ct.1941, 30 N.Y.S. 2d 628. Slover's activities were thus so closely related to the movement of commerce as to be a part of it within the test prescribed by the Supreme Court in McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538. We are therefore of the opinion that Slover's assigned duties (as found by the court below and admitted by Wathen and Patapsco) under his employment as a watchman in the protection of the "dock" and interstate barges while they were tied at the pier, clearly brought him within the protection of the Act. Cf. Missel v. Overnight Motor Transportation Co., 4 Cir., 126 F.2d 98, affirmed 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Burton v. Zimmerman, 4 Cir., 131 F.2d 377; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 655; Walling v. Sondock, 5 Cir., 132 F.2d 77; Labor Interpretative Bulletin No. 11, issued July 1939, revised July 1943.

There is a second and perhaps even stronger reason why Slover is entitled to the protection of the Act in that he was engaged in the production of goods for commerce. The undisputed evidence shows that Patapsco was engaged exclusively in the work of repairing barges at the pier. These barges were "subjects of commerce" and were "goods" under the Act. "Working on * * * goods" is, by definition in §§ 203(i) and 203(j) "production" within the meaning of the Act.

In Bracey v. Luray, 4 Cir., 138 F.2d 8, 11, Judge Parker stated: "There can be no question, we think, but that the production of ships to operate in interstate and foreign commerce is a production for commerce, within the meaning of the statute." Nor can there be a valid distinction between building new ships and repairing old ships so far as the Act is concerned, since § 203(j) provides that "produced" includes "handled or in any manner worked on in any State."

Thus, in Bracey v. Luray, supra, we held that an employee engaged in handling scrap iron intended for use by a company, other than the employer, in the fabrication of ships, was engaged in the production of goods within the scope of the Act.

"We think, however, that the lower court was in error in holding that plaintiffs were not engaged in production of goods for commerce. They were engaged in handling scrap iron which was intended to be used and was used in the fabrication of ships. `Goods' as defined in the statute includes ships `or any part or ingredient thereof.' Sec. 203(i). And `handling' is by express terms included in `production.' Sec. 203(j). Plaintiffs handled scrap iron, an ingredient which was used in the...