Walling v. McCrady Const. Co.
Decision Date | 23 July 1946 |
Docket Number | No. 9001.,9001. |
Citation | 156 F.2d 932 |
Parties | WALLING, Adm'r of Wage and Hour Div., U. S. Dept. of Labor, v. McCRADY CONST. CO. |
Court | U.S. Court of Appeals — Third Circuit |
Roland A. McCrady, of Pittsburgh, Pa. (W. F. McCrady, Jr., and McCrady, Nicklas & Hirschfield, all of Pittsburgh, Pa., on the brief), for appellant.
Morton Liftin, of Washington, D. C. (William S. Tyson, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., Ernest N. Votaw, Regional Atty., of Philadelphia, Pa., and Joseph M. Stone, and Frederick U. Reel, Attys., both of Washington, D. C., all of U.S. Dept. of Labor, on the brief), for appellee.
Before EDGERTON, GOODRICH, and McLAUGHLIN, Circuit Judges.
This is an appeal from a decision of the District Court1 granting an injunction against violation of the wage and hour provisions of the Fair Labor Standards Act.2
The litigation originally involved some fifty-eight contracts classified under six heads: 1. Public highways, roads and bridges. 2. Motor carrier terminal facilities. 3. Telephone facilities. 4. Railroad facilities. 5. Industrial plant facilities. 6. Loading ore and stone. The motor carrier and the ore and stone matters have now been conceded by the appellant as coming within the statute as are certain other of the contracts having to do with repair work.3
The first group of contracts concerned appellant's employees working on public roads, streets and bridges. The jobs included removal of old paving and replacement thereof with new; curbing, sidewalk and drainage construction; relocation of a portion of a county road, new bridges in different locations from the old with new approaches to one of them and widening a street. The particular highways, roads and streets were either United States highways or connected with them or other interstate highways. They were all accessible to and used to a substantial extent by interstate traffic, by vehicles engaged in the pickup and delivery of mail express and freight (a substantial portion of which moves in interstate commerce) and in the transportation of goods in process of production for interstate commerce.
The telephone work had to do with lowering certain facilities to conform to new street grade, relocating and regrading an underground conduit and construction of a new conduit (a small portion of the latter used the old construction). The lines involved were regularly used for interstate telephonic communication.
The railroad projects consisted of removal of an old railroad bridge and partial building of a new one, repairing a round-house, putting in foundations for a new signal tower and foundations and subflooring for a new maintenance building and storehouse. The railway for which this work was done is a public service corporation engaged in general railroad transportation. A substantial amount of the freight it carries originates at or is destined for points outside Pennsylvania.
The industrial facilities are foundations for new units of existing plants, with and without drainage and superstructure, foundations for machinery, plant roads, parking lots, sidewalk, trench, drainage ditch, cutting back a hillside, removing cinders, filling in a foundation, extension stream drainage pipe, new sewer, new crib wall, new siding, new underpass and new roadbed for a new siding. The three industrial establishments for which this work was performed ship their products in interstate commerce and were all going concerns during the periods of the contracts.
Appellant's employees on these various contracts consisted of foremen, timekeepers, drivers, bricklayers, operators of cranes and other machines, laborers, watchmen and the like. The special classes of employees are of no importance here as the parties have agreed that the rights for claims of particular workmen would not be adjudicated. They were not compensated in accordance with Section 15(a) (2) of the Fair Labor Standards Act of 1938. The District Court held that those employees in the road jobs were engaged in interstate commerce and in the production of goods for interstate commerce. Those on the telephone and railroad facilities were found employed in interstate commerce. The industrial groups were considered to be engaged in production of goods for interstate commerce.
Since the road, telephone and railway contracts are governed by the same general theory with reference to the application of the Fair Labor Standards Act they can be discussed together. Appellant asserts that work on public roads, streets and bridges is not within the legislative intent of the Fair Labor Standards Act. It bases this primarily on lack of specific reference to those items in the legislative history of this very general statute. It also urges that an independent contractor so engaged is the alter ego of the governmental unit by which he is employed and while it does not actually claim that it comes within Section 3(d) of the Act which excludes from the definition of "employer" the "United States or any State or political subdivision of a State," it does say that the exclusion itself is indicative of the Congressional intention not to interfere with such matters as these, on the theory that they are within the scope of local governments and their functions.4 It attempts unsuccessfully we think, to distinguish the leading case of Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656. There the point was whether employees of a privately owned toll bridge corporation, operating a draw bridge on a road used in interstate commerce over a stream similarly used, came under the Act. The Supreme Court quoting from Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460 said at page 128 of 318 U.S. 125, 63 S.Ct. 494, 496, 87 L.Ed. 656:
Concluding that such work was covered by the Act the Court said at page 129 of 318 U.S. 125, 63 S.Ct. 494, 497, 87 L.Ed. 656:
Appellant contends that this decision is confined to holding that privately owned toll roads are within the Act because in McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 1250, 87 L.Ed. 1538, the opinion states that As seen, the McLeod decision simply mentions that the facts in Overstreet involved a privately owned road. It does not purport to limit that decision's above quoted general language to such privately owned toll roads and bridges or to in any way suggest that those instrumentalities under the circumstances could possibly be any more in the stream of commerce than if they were publicly controlled.
In Pedersen v. Fitzgerald Co., 318 U.S. 740, 63 S.Ct. 558, 87 L.Ed. 1119, abutments of railroad bridges had been destroyed by flood and the superstructures of the bridges damaged. Interstate trains operated over the bridges. The new abutments were not used to support either the superstructures or the railroad bed and were not used by the railroad in any way during their construction. The employees building the abutments were none the less considered to be engaged in interstate commerce. In Walling v. Patton-Tulley Co., 6 Cir., 134 F.2d 945, 946 both construction of and repair of dykes and revetments on the Mississippi River the purpose of which was "to direct and channelize the current of the river in order to prevent erosion and to maintain the minimum depth required by commercial navigation" were held to be in commerce. The latest case on the subject is Ritch v. Puget Sound Bridge & Dredging Co., Inc., 9 Cir., 156 F.2d 334. The work there consisted of deepening the harbor waters of the Bremerton Navy Yard and included the construction of retaining walls to prevent silting. Judge Denman in his fine opinion exhaustively reviews the pertinent law. In that issue the facilities worked on were not employed in commerce during their construction, one of the points presented by this appeal. The Court held that since the work was in commerce, the draftsman and timekeepers actually engaged in it were in commerce, saying, "They have the immediacy of participancy lacking in the cook of McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538." Walling v. Craig, D.C.Minn., 53 F.Supp. 479 decided that employees on road repairs much like the present work were within the Act.
The above citations relate just as forcibly to telephone and railroad facilities where they are closely connected with commerce, as they do to highways. That the highways, roads, streets, telephone and railroad facilities under consideration are engaged in interstate commerce as found by ...
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