Wirtz v. BB Saxon Company

Citation365 F.2d 457
Decision Date04 October 1966
Docket NumberNo. 21414.,21414.
PartiesW. Willard WIRTZ, Secretary of Labor, U. S. Department of Labor, Appellant, v. B. B. SAXON COMPANY, Inc., Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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Bessie Margolin, Associate Sol., William Fauver, Atty., Charles Donahue, Sol., Robert E. Nagle, Solomon Robinson, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant.

Walter J. Smith, Fort Walton Beach, Fla., for appellee.

Before JONES and BELL, Circuit Judges, and JOHNSON, District Judge.

JONES, Circuit Judge:

The Secretary of Labor, the appellant here, brought an action under Section 17 of the Fair Labor Standards Act 29 U.S. C.A. § 201 et seq. against the appellee, B. B. Saxon Company. It is a Florida corporation engaging in maintenance and service work under contracts with the United States Government at military bases in five states. Two of the bases, Craig Air Force Base in Alabama and Robbins Air Force Base in Georgia, are involved in this action, brought to enforce the minimum wage and overtime provisions of the Act. There is no question but that the requirements of the Act were not met. This appeal relates to the issues of coverage and the appropriate remedy.

All of the employees at Robbins Air Force Base involved in this litigation were engaged in the repair and maintenance of vehicles assigned to the base motor pool or sent to Robbins for repair. The district court found these persons covered by the Act. The employees at Craig Air Force Base may be categorized in nine groups, three of which were found covered.

The first group includes persons who transported fuel from bulk storage tanks to the airplanes, where the fuel was put into the planes by Air Force personnel. The district court found this group to be covered by the Act. The second group encompassed those who repaired and maintained the base vehicles. Their duties were about the same as those of the Robbins employees. They were found to be covered.

Civilian drivers at the base motor pool comprised the third class. Transportation, which included a flightline taxi service, was provided continuously. This was the final group which the district court found to be covered by the Act.

The employees in the fourth category, found not to be covered by the Act, maintained the pavement and grounds of the Air Base. In addition to street repair, duties of this class included maintaining the runways, taxiways, parking aprons, warm-up and holding pads, and the aircraft wash racks on the base. Part of the job was the daily sweeping of the runways and taxiways so as to reduce the likelihood of foreign objects being sucked into the jet engines.

The fifth group was composed of the base custodians and janitors. They cleaned the base office buildings and other structures on the base, including the gym, commissary, chapel, library, bank, and post office. They were found not to be covered.

The base water and sewage facilities were operated and maintained by the sixth category, found to be without the coverage of the Act.

The employees in the seventh class were engaged in control of insects and rodents throughout the base. They were found not to be in interstate commerce and so were not covered.

The eighth group was composed of persons who operated the base housing administration office. This office administered the allocation of the housing on the base, including assignment and termination of occupancy, and collection of rents. The housing included transient quarters and the bachelor officers' quarters. The maid service for the last two types of housing was supervised by the housing office. The lower court found these employees were not covered by the Act.

The final classification contains employees who kept time records and prepared payrolls for the other workers. They were located both at Craig Field and at the company's Florida office. They were found not to be covered.

Both the maximum hours provision and the minimum wage provision of the Fair Labor Standards Act apply to employees who are "engaged in commerce or in the production of goods for commerce."1 For purposes of the Fair Labor Standards Act, "`Commerce' means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S. C.A. § 203(b). "`Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State." 29 U.S.C.A. § 203(j).

It is apparent that the category of employees engaged in the production of goods for commerce is broader than the class of employees engaged in commerce, not only in the number of people who might be expected to be within it, but in the closeness of the relationship between the person and the activity requisite for inclusion. For one to be engaged in the production of goods for commerce within this Act, he need only be engaged in a closely related process or occupation directly essential to production, whereas to be in commerce, one must be in commerce itself. This distinction has been recognized by the courts. "The test of whether one is in commerce is obviously more exacting than the test of whether his occupation is necessary to production for commerce." Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118.2 Thus, cases dealing with employees found to be engaged in the production of goods for commerce are of little aid in determining whether other employees are engaged in commerce. The test in the latter case is that one is engaged in commerce only if his activities are "so closely related to such commerce as to be in practice and in legal contemplation a part of it."

The test is that used in construction of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., prior to amendment in 1939. Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656. See also McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538; Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786; Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243.

There is no question but that the two Air Force bases are instrumentalities of commerce to the extent that interstate flights take off and land. Mitchell v. Lublin, McGaughy & Associates, supra; Powell v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017. The general facilities of the structures on the bases such as the gymnasium, library, and chapel and the residential and recreational areas, cannot be said to be in commerce unless it be by virtue of their association with the function of the base as an airfield. We find no case speaking directly to this point. The reasoning in some cases seems to assume either that an entire base is or is not an instrumentality, but the assumption is not always in the same direction. We find most persuasive the view that the various parts of a huge, sprawling Air Force base must be considered individually. There is, in our view, no more reason to hold that an entire military installation is engaged in commerce simply because a part of the land included within the base is used for that purpose than to hold that an entire town is engaged in commerce because a portion of the town's businesses is. This reasoning is reflected in Wirtz v. R. E. Lee Elect. Co., 4th Cir. 1964, 339 F.2d 686, where employees doing electrical installation work at several Government bases were found to be engaged in commerce. The Court did not find the employees were engaged in commerce because they were employed on military bases which were, in part, engaged in commerce, but found it necessary to investigate the relationship between the work of the individual employees to the interstate-commerce function of the base. So, too, must we do here.

There can be no question that the employees who hauled airplane fuel to the planes were engaged in commerce within the statute and the applicable judicial precedents. It has been held that the construction of fuel tanks was in commerce. Mitchell v. Empire Gas Engineering Co., 5th Cir. 1958, 256 F.2d 781. The operation of the tanks is also in commerce. The district court will be affirmed in this regard.

Those engaged in repair of motor vehicles, at both bases, were entitled to the protection of the Act. The vehicles were necessary to the functioning of the bases as instrumentalities of commerce, indeed, many of the vehicles performed functions essential to moving and servicing the airplanes themselves. As the vehicles were so closely related to commerce as to be a part of it, so was their repair and maintenance. Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786.

The same reasoning applies to the drivers at the motor pool. The transportation they provided, particularly at the flight line, was essential to the operation of the base. The lower court will be affirmed as to these persons.

There can be no question that runways, taxiways, and warm-up pads, and the like are so closely related to the interstate flights as to be a part of the commerce. The employees engaged in maintaining these facilities are within the Act. The district court must be reversed as to employees in this category. Overstreet v. North Shore Corp., 318 U. S. 125, 63 S.Ct. 494, 87 L.Ed. 656.

Providing janitorial service in a building which does not house an instrumentality of commerce is not within the clause of the Act relating to employees engaged in commerce. See 10 East 40th Street Building, Inc. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, reh....

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