Walling v. Patton-Tulley Transp. Co.

• Decision Date: 08 April 1943
• Docket Number: No. 9352.,9352.
• Parties: WALLING, Wage and Hour Adm'r, v. PATTON-TULLEY TRANSP. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

134 F.2d 945 (1943)

WALLING, Wage and Hour Adm'r, v. PATTON-TULLEY TRANSP. CO.

No. 9352.

Circuit Court of Appeals, Sixth Circuit.

April 8, 1943.

Morton Liftin, of Washington, D. C. (Irving J. Levy and Bessie Margolin, both of Washington, D. C., Jeter S. Ray, of Nashville, Tenn., and Morton H. Rowen and Charles R. Reynolds, Jr., both of Washington, D. C., on the brief), for appellant.

John Vorder Bruegge, of Memphis, Tenn. (H. D. Bird, of Memphis, Tenn., on the brief), for appellee.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

In a proceeding by the Administrator of the Wage and Hour Division of the United States Department of Labor, to subject the appellee to the provisions of § 17 of the Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq., two controversial issues appear, both decided adversely to the Administrator, (1) whether employees engaged on dike and revetment construction in the Missouri and Mississippi Rivers, under contracts of their employer with the United States, are engaged in commerce, and (2) whether the Act of September 9, 1940, 40 U.S.C.A. § 325a, amending the so-called "Eight-Hour Law" of June 19, 1912, 40 U.S.C.A. §§ 324, 325, repealed the Fair Labor Standards Act in respect to such employees.

The appellee is a Tennessee corporation engaged in loading and transporting logs on the Mississippi River, and in the construction of dikes and revetments in both the Mississippi and Missouri Rivers, and in connection with its loading and transportation business maintains a fleet of boats and barges towed by tugs in interstate commerce. It likewise, under contract with the United States, has been engaged in the construction and repair of dikes and revetments on the Mississippi in the performance of which large quantities of material are shipped from several states to the scenes of operation. Both the Missouri and Mississippi Rivers carry a substantial volume of interstate traffic, and the purpose of the dike and revetment work is to direct and channelize the current of the river in order to prevent erosion and to maintain the minimum depth required by commercial navigation.

The appellee stipulated, and the court found, that employees engaged in unloading out-state goods in Tennessee were subject to the provisions of the Fair Labor Standards Act; that in respect to them wages were paid at rates less than the minimum provided in the Act for the period involved; that the appellee had failed to make, keep and preserve records setting forth the information required to be recorded by regulations promulgated by the Administrator; and that the latter was entitled to the relief prayed. It entered a decree for injunction in this respect, but at the same time denied to the Administrator any relief in respect to wages and hours of work of employees engaged in constructing and repairing dikes and revetments, on the ground that unlike the others, they were not engaged in commerce.

The Fair Labor Standards Act, § 3(b), 29 U.S.C.A. § 203(b), defines "commerce" to mean "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof," and § 6(a) requires that every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce, wages during respective periods following the effective date of the Act at the hourly rates therein specified, and § 7(a), 29 U.S.C.A. § 207(a), establishes a weekly maximum of hours of work unless the employee receives compensation in excess of such hours at a rate not less than 1½ times the regular rate at which he is employed. It is conceded that we are not here concerned with the phrase, "in the production of goods for commerce" which is incorporated in the recited definition of commerce.

The District Court concluded that the dike and revetment employees of the appellee were not engaged in commerce within the coverage of the Fair Labor Standards Act, because unlike the National Labor Relations Act 29 U.S.C.A. § 151 et seq., and other statutes, it does not reach activities which merely affect commerce, but only those activities which are directly in commerce; that the dike and revetment work of the appellee was local in its nature and had no direct, but merely an indirect effect on river navigation, and that to bring employees in local construction within its coverage would require a strained construction of its plain wording.

Long before the expanded concept of interstate commerce, as we now understand it, began to develop, we pointed out in Baltimore & Ohio R. R. Co. v. Hooven, 6 Cir., 297 F. 919, 922, that in actions under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the statutory test was whether the employee of the interstate carrier is himself engaged in interstate commerce, and that he is deemed to be so employed if he is working upon an instrumentality of interstate commerce. This was in response to numerous decisions of the Supreme Court, including Industrial Accident Commission of California v. Davis, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 888; Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Philadelphia, B. & W. R. R. Co. v. Smith, 250 U.S. 101, 39 S.Ct. 396, 63 L.Ed. 869, all of them decisions prior to the specific amendment of the Federal Employers' Liability Act by the Act of August 11, 1939, 53 Stat. 1404, § 1, 45 U.S.C.A. § 51. This line of reasoning stems from Pedersen v. D., L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153, where it was held that independently of the statute the work of keeping tracks and bridges used by interstate commerce in a proper state of repair, is so closely related to such commerce as to be, in practice and in legal contemplation, a part of it.

Consistently have we held to this line of authority, including within the ambit of interstate commerce thus defined, not only employees working on tracks and roadways directly employed by interstate railroads, but likewise those employed by a construction company engaged in such activities, Erie R. R. Co. v. Margue, 6 Cir., 23 F.2d 664; employees not directly engaged in train movements unless the instrumentalities had been withdrawn from service, Law v. Illinois Central R. R. Co., 6 Cir., 208 F. 869, and bridge carpenters, painting bridges over which interstate trains travel, Norfolk & Western R. R. v. Trautwein, 6 Cir., 111 F.2d 923, to mention but a few of the adjudications.

The District Court sensed a distinction between the present case and those applying the doctrine of the Pedersen case, based upon the rule of Raymond v. C., M., St. P. & P. R. R. Co., 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583, and cases therein cited, in the fact that the employees of the appellee were engaged in a construction operation rather than in one of maintenance or repair of an interstate facility, since it had been there held that construction of a facility not yet employed in interstate commerce was not engagement in such commerce. The short answer is that the Mississippi River has been a highway of interstate commerce since states were first carved out of its contributory territory, and so the reasoning that construction upon a highway not yet utilized for interstate commerce is not work in interstate commerce does not apply. Nor is there point to the distinction that the Pedersen case involved the employees of an interstate carrier, concededly engaged in interstate commerce, while the present case involves employees of a construction company, which is not, in the employment of the men here involved, an interstate carrier. The reasoning of Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, in respect to another phase of the statute, precludes such distinction, as does Erie R. R. Co. v. Margue, supra. Whatever doubt there may have been of the soundness of the doctrine of the Pedersen case, derives from the decision of the Supreme Court in Detroit International Bridge Co. v. Appeal Board of Michigan, 294 U.S. 83, 55 S.Ct. 332, 79 L.Ed. 777, and its earlier decision in the same case, 287 U.S. 295, 53 S.Ct. 137, 77 L.Ed. 314. These were tax cases involving the question whether, under state statutes, the taxing of an international bridge claimed to be a highway or facility for interstate or foreign commerce, impeded or burdened such commerce, and were decided largely in reliance upon Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962, and Henderson Bridge Co. v. Kentucky, 166 U.S. 150, 17 S.Ct. 532, 41 L.Ed. 953, in the former of which it was said that the state tax was not a tax upon interstate business because the Bridge Company did not transact such business, — that being carried on by the persons and corporations which paid the tolls for the privilege of using the bridge.

That the Detroit Bridge cases could have been similarly decided upon other grounds, perhaps is now clear, and we are relieved of the difficulty of trying to distinguish in respect to interstate commerce between the maintenance of the instrumentalities by which commerce is moved and the maintenance of the...