Wirtz v. Melos Construction Corp.
Decision Date | 19 March 1969 |
Docket Number | 309,32918.,Dockets 32917,No. 308,308 |
Citation | 408 F.2d 626 |
Parties | W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. MELOS CONSTRUCTION CORP. and Americo Melo, individually and as an officer of Melos Construction Corp., Defendants-Appellants. |
Court | U.S. Court of Appeals — Second Circuit |
Leonard S. Kimmell, Kimmell & Kimmell, Mineola, N. Y., for appellants.
Carin A. Clauss, Atty., Dept. of Labor, John A. Hughes, Regional Atty. (Charles Donahue, Sol. of Labor, Bessie Margolin, Assoc. Sol., Robert E. Nagle, Atty., Dept. of Labor, on the brief), for appellee.
Before WATERMAN, KAUFMAN and HAYS, Circuit Judges.
Melos Construction Corp. and its president, Americo Melo, appeal from a judgment of the United States District Court for the Eastern District of New York, enjoining them from violating the overtime and record-keeping provisions of the Fair Labor Standards Act. 29 U.S.C. §§ 207, 211 (1964, Supp. III 1965-67).
Melos is a construction company engaged in building foundations for homes on Long Island, New York. Its annual volume of business exceeds $500,000. Melos obtains its materials solely from dealers in New York. The principal item purchased by Melos is ready-mix concrete, which is a mixture of cement, sand, gravel, water and certain chemicals. The concrete is prepared by Melos' suppliers in New York but about 50 percent of the cement used — valued at approximately $35,000 a year — is produced outside New York. Melos also spends about $10,000 a year on lumber and other supplies obtained by New York dealers from out-of-state sources.
The only question raised on this appeal is whether Melos is an "enterprise engaged in commerce or in the production of goods for commerce," as defined in 29 U.S.C. § 203(s) (Supp. III 1965-67), so as to be subject to the relevant provisions of the Act.
Section 2(c) of the 1961 amendments1 expanded coverage under the Act in two particulars. First, it brought within the Act's coverage all employees of an enterprise if some of its employees "engaged in commerce or in the production of goods for commerce."2 Before 1961 the Act covered only those employees who were themselves so engaged.3 Second, the Section defined "enterprise engaged in commerce or in the production of goods for commerce" to include an enterprise having employees engaged in "handling, selling, or otherwise working on goods that have been moved in or produced for commerce * * *."4
It is clear that before the 1961 amendment Melos was not subject to the Act, since it had no employees who were "engaged in commerce or in the production of goods for commerce" as that phrase was then defined. See Mitchell v. H. B. Zachry Co., 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753 (1960). And, of course, Melos' status with respect to coverage of the Act was not affected by that part of the amendment which enlarged the Act's coverage by including all employees of enterprises which had some employees engaged in commerce or the production of goods for commerce.5 However Melos' operation, like many other operations which were formerly not covered by the Act, was brought under it by the extension of coverage to include enterprises that have employees engaged in "handling, selling, or otherwise working on goods that have been moved in or produced for commerce."
That this extension of coverage was one of the purposes of the Act is supported by the Senate report on the bill enacting the 1961 amendments,6 which states that the bill provides:
That the legislation was designed to regulate enterprises dealing in articles acquired intrastate after travel in interstate commerce is indicated by the fact that the Senate report also notes that "the constitutional power of Congress under the commerce clause to exercise authority with respect to `articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce' is also settled * * *." id. at 1622, and then cites United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297 (1948), which involved a druggist's actions with respect to medication purchased by him intrastate after it had traveled in interstate commerce.
Moreover, the minority report by Senators Goldwater and Dirksen also shows that Melos' activities bring it under the Act. It states:
Statements by various Senators in opposition to the statutory language here construed also demonstrate an understanding that the bill would greatly expand coverage under the Act. See, e. g., 107 Cong.Rec. 5976 (1961) (remarks of Senators Lausche and Holland); id. at 6099, 6370-71 (remarks of Senator Ervin); id. at 6101-02 (remarks of Senator Allott).
The interstate character of the cement as a product that "has been moved" in interstate commerce is not destroyed by the fact that it is used to make a different product, ready-mix concrete, which is then purchased by Melos from New York suppliers who do not prepare it specifically for Melos. Nor does the mingling of the lumber and other supplies in the stock of the New York dealers from whom Melos purchases negate the origin in interstate commerce of these products. As the Labor Department regulations interpreting the Act provide:
29 C.F.R. § 779.242 (1968).10
Thus the language and history of the 1961 amendments demonstrate that Melos is covered by the Act.
Affirmed.
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...commerce or in the production of goods for commerce, within the meaning of § 3(s), 29 U.S. C.A. § 203(s) (3). In Wirtz v. Melos Construction Corp., 408 F.2d 626 (2 Cir. 1969), the Court "* * * the 1961 amendments expanded coverage under the Act in two particulars. First, it brought within t......
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...of the articles set forth in the margin above. See, e. g., Brennan v. Dillion, 483 F.2d 1334 (10th Cir. 1973); Wirtz v. Melos Construction Corp., 408 F.2d 626 (2nd Cir. 1969).6 The constitutionality of 29 U.S.C. § 203(s) was upheld by the Court in Maryland v. Wirtz, supra. Thus, we conclude......
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