Tobin v. Pennington-Winter Const. Co.

• Decision Date: 02 August 1952
• Docket Number: No. 4443.,4443.
• Parties: TOBIN, Secretary of Labor, v. PENNINGTON-WINTER CONST. CO., Inc.
• Court: U.S. Court of Appeals — Tenth Circuit

198 F.2d 334 (1952)

TOBIN, Secretary of Labor, v. PENNINGTON-WINTER CONST. CO., Inc.

No. 4443.

United States Court of Appeals Tenth Circuit.

July 2, 1952.

Rehearing Denied August 2, 1952.

Bessie Margolin, Asst. Sol., United States Department of Labor, Washington, D. C. (William S. Tyson, Sol., William A. Lowe and Sylvia S. Ellison, Attys., United States Department of Labor, Washington, D. C., and Earl Street, Regional Atty., United States Department of Labor, Dallas, Tex., were with her on the brief), for appellant.

H. L. Douglass, Oklahoma City, Okl. (Sylvanus G. Felix and John J. Griffin, Oklahoma City, Okl., were with him on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This was an action by Maurice J. Tobin, as United States Secretary of Labor, to compel compliance on the part of Pennington-Winter Construction Company, Inc., the appellee, with the over-time compensation provisions of the Fair Labor Standards Act of 1938,¹ with respect to laborers employed by it under its contract for work to be performed on what is known as the Tenkiller Ferry Dam. It is conceded that there was no compliance with the provisions of the act. So it is also stipulated that while work under the contract on this project is completed the question is not moot because of other contracts in which the identical question is present. The decision turns upon whether appellee's employees were engaged in commerce or the production of goods for commerce within the meaning of the act. The trial court held that they were not so engaged and entered judgment for appellee.

Tenkiller Ferry Dam is a multiple purpose project for flood control, generation of electric power, aid to navigation and recreational and other beneficial uses. It is being constructed across the Illinois River in Sequoyah and Cherokee Counties, Oklahoma, under valid federal statutory authority. It is an integral part of a comprehensive system for the control of the Arkansas and Mississippi Rivers, recommended by the Corps of Engineers for the United States and approved by the Congress of the United States in appropriate authorizing legislation.

The Illinois River, a non-navigable stream, is a tributary of the Arkansas River, which in turn empties into the Mississippi River. The Arkansas and Mississippi Rivers are both navigable. As found by the trial court, the comprehensive plan for the control of these two rivers "is intended to and does improve their navigability and their usefulness as channels of interstate commerce and said comprehensive plan is intended to and will provide a channel nine feet in depth and 250 feet in width to mile 428 on the said Arkansas River." The trial court also found that "Tenkiller Ferry Reservoir is intended to and will furnish approximately ten per cent of the flow of water necessary to create and maintain said channel." With respect to flood control the trial court found that "Many concerns engaged in the production of goods for interstate commerce are located, and substantial quantities of cotton and other crops intended for shipment in interstate commerce are located in the flood plains of the Arkansas River below the confluence of said river and of the Illinois River. To the extent that the Tenkiller Ferry Reservoir controls the floods and the flow of water in the Arkansas and Mississippi Rivers, it will afford protection from floods to such concerns and such crops." The trial court also found that the flood protection afforded by this construction would benefit interstate railways and highways located in the project area.

Appellee's contract required it to remove trees and obstructions from the reservoir area. The work under the contract was to be performed in that portion of the basin denominated Zones A and B. The Zone A clearing was performed from the bottom of the reservoir to elevation 615. The work consisted of removing all floatable material described in the contract as "pieces four inches or more in diameter and five feet or more in length," as well as all dead and leaning trees likely to break loose and float, and lowering or topping to elevation 615 all anchored structures including fences, living trees, and brush, except in certain blocked out areas, projecting above that elevation. The Zone B clearing was performed between elevation 615 and 634. It consisted of removing all floatable material, removing or felling (by cutting only in the case of willows) all trees, except those in the blocked out areas, in a manner so as to leave no stump higher than six inches above ground on the high side and treating willow stumps with arboricide to prevent sprouting. In addition, appellee was required to construct brush rows at certain places to aid the propagation of fish. The brush row construction was a small item of the work for which no special payment was provided, because the contract provided that it "be considered as a subsidiary obligation of the contractor." This in general describes the nature and the character of the work performed by the employees of appellee in fulfilment of its contractual obligations. The trial court based its conclusion that the employees were not subject to the provisions of the act upon its conclusion of law Number 7 that "The work of the employees of defendant did not include the production of goods in commerce, nor was their work closely related to production of goods in commerce, nor was their work directly essential to the production of any goods for commerce. My conclusion from the evidence is that the work of the employees of the defendant was primarily related to recreational activities in the area, and the propagation and protection of fish and game and will have very little, if any, effect upon interstate commerce."

We are of the view that the court's conclusion that the work of appellee's employees was primarily related to recreational activities is not supported by the record. The evidence is clear that the recreational facilities were a very small part of the project and of the work done by the appellee. The only work solely for recreational activities was the construction of brush rows for the propagation and protection of fish and the removal of certain obstructions in the upper levels of the dam. The removal of such obstructions will, of course, improve navigation for pleasure boats, but common knowledge also tells us that even these activities will improve the flow of water and thus have a bearing on obstructions coming down during high water and thereby affect the dam itself. But of more vital significance is the fact that the major portion of the work in question consisted of removing trees, logs and obstructions which would float against the dam, tend to clog the intakes, damage the gates, and interfere with the operation of the hydro-electric power equipment and the spillway for the flood pools. These conclusions are supported by the unimpeached testimony of the Assistant Chief Engineer and the Hydro-Electric Engineer. These witnesses also testified that while the construction of the brushrows was primarily for recreational purposes that even this construction was beneficial to the dam in that it tied them down and prevented them from floating and becoming obstructions lodging against the dam. Removing clogs, trees and obstructions in the lake bed, which might break loose and float against the dam, clog the intakes and interfere with the operations of the dam, and cause injury to it are as much a necessary and essential part of the construction of the dam as is the proper construction of ramps, abutments, and footings to prevent the washingout and under-mining of the dam.

To further support the judgment of the trial court, appellee relies upon a line of cases holding that employees engaged in the construction of a new building or structure to be dedicated, when completed, to the production of goods for commerce are not themselves during the period of construction so closely related to commerce as to bring them within the coverage of the Act.² But this is not new construction in the sense that a new building for the manufacture of goods for commerce is new construction. Such a building by its mere construction is no part of commerce and has without more no active connection or relation thereto. It does not follow from the mere construction of such a building that it ever will have connection with commerce or be dedicated to the production of goods for commerce. It could, after its construction, be dedicated solely for intrastate commerce, if its owners deem such use advisable.

But here we have in force and effect a comprehensive plan for improvement of navigation on the Arkansas and Mississippi Rivers, two navigable streams. Many levees, dams and other works have been constructed to effectuate such purposes, both upon the streams themselves, as well as on their tributaries. The construction of this dam is no more than an improvement of an existing project for the control of floods and the betterment of navigation. It is no more a new...