Wirtz v. RE Lee Electric Company

• Decision Date: 14 December 1964
• Docket Number: No. 9322.,9322.
• Citation: 339 F.2d 686
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee, v. R. E. LEE ELECTRIC COMPANY, Inc., a Corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

339 F.2d 686 (1964)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee, v. R. E. LEE ELECTRIC COMPANY, Inc., a Corporation, Appellant.

No. 9322.

United States Court of Appeals Fourth Circuit.

Argued April 20, 1964.

Decided December 14, 1964.

John L. Kilcullen, Washington, D. C., for appellant.

Robert E. Nagle, Atty., United States Department of Labor (Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Sylvia S. Ellison, Chief Trial Attorney, and Beate Bloch, United States Department of Labor, on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and CRAVEN, District Judge.

BOREMAN, Circuit Judge.

The Secretary of Labor seeks to restrain R. E. Lee Electric Company (hereinafter Lee Co. or defendant) from violating the overtime and record-keeping requirements of the Fair Labor Standards Act (herein referred to as the Act), 29 U.S.C.A. § 201 et seq., and to restrain Lee Co. from continuing to withhold unpaid overtime compensation alleged to be due certain of its employees by virtue of the pertinent provisions of the Act. Defendant conceded that some employees were employed for more than forty hours per week (29 U.S.C.A. § 207(a)) without payment for overtime, but contended that they did not come within the provisions of the Act since they were not engaged "in commerce" or "in the production of goods for commerce." The District Court found that defendant had violated the Act and permanently enjoined it and its officers and agents from further violations of the Act and from withholding from forty employees unpaid compensation totaling $2,124.80.

Lee Co. is an electrical contractor in Fairfax County, Virginia, which employs fifty-five to sixty men at hourly rates which range from $2.25 to $4.80. In the years 1960 and 1961 defendant performed work under several contracts with different government agencies. All the contracts in question contained extensive labor specifications governing minimum wages, time and one-half overtime compensation for all hours worked in excess of eight hours a day and other conditions of employment required by the Walsh-Healey Act, the Eight Hour Law and the Davis-Bacon Act, but they contained no reference to any provisions of the Fair Labor Standards Act.

The present dispute involves work performed under these contracts at ten government operations variously located in the District of Columbia, Maryland, Virginia and Pennsylvania. Of these projects some were federal office buildings, some were military installations and one was a building constructed for use as a United States Post Office. Substantially all of the facts were stipulated or established through discovery procedures. R. E. Lee, president of Lee Co., alone testified for defendant.

In Building T-7, at Gravelly Point, Virginia, defendant installed electric wiring for window air conditioning units and installed the units. This building houses military and other governmental agencies: A branch of the General Services Administration; Headquarters, Military District of Washington; Headquarters, Army Material Command; Directorate for Armed Forces Information and Education; Office of the Chief of Engineers, Department of the Army; Armed Services Explosive Weapons Board; and the Defense Transportation Material Services Agency. It is undisputed that these agencies typed, printed and otherwise handled letters, reports, memoranda, contracts and other written materials that were sent to or received from points in other states; and that they made or received long distance telephone calls, handled telegrams and other government business, sent to or received from points in other states.

At Washington, D. C., the defendant installed a fire alarm system in the main Treasury Building. This building houses ten government agencies: The Bureau of Accounts; Office of the Comptroller of the Currency; Office of the General Counsel; Office of Administrative Services; Office of International Finance; Bureau of the Mint; Bureau of Public Debt; U. S. Secret Service; Office of the Secretary of the Treasury and Office of the Treasurer of the United States. Each of these agencies receives and makes interstate telephone calls and carries on interstate correspondence on a daily basis. In addition, several of the agencies regularly handle and work on numerous circulars, bulletins, directives and other printed materials which are distributed throughout the United States. Also, the Office of the Treasurer receives and mails checks daily.

At Fort Meade, Maryland, defendant installed the primary power for window air conditioning units and installed the units in Building T-2842. This building houses the 8769 U.S. Army Special Support Unit which prepares and sends reports (some classified) and correspondence in interstate mail on a regular basis. Also, it makes and receives interstate telephone calls daily.

At Andrews Air Force Base, Camp Springs, Maryland, Lee Co. installed electrical outlets in the hangars which housed aircraft provided for use of the President. These outlets were used by mechanics to operate machines to test equipment taken from the planes. The planes frequently fly across state lines, land in other states and return.

At the Naval Air Station, Patuxent River, Maryland, Lee Co. installed electrical wiring in a hangar. The electricity provided by the wiring was used in testing the military planes. Defendant admitted that interstate flights take off and land at this base and men, materials and mail moving from one state to another pass through it.

At the Letterkenny Ordnance Depot, Chambersburg, Pennsylvania, defendant replaced approximately one hundred poles used to carry electric power and telephone lines and transferred these lines from old to new poles. The electricity from these lines was used for lighting repair shops and for operating power tools used in repairing and modernizing motor vehicles and tanks used by the Army. The telephone lines connect the base with outside lines which lead to all parts of the world.

At Vint Hill Antenna Farm, Warrenton, Virginia, Lee Co. employees were employed in the erection of radio towers. The work consisted of mounting steel towers on top of existing concrete bases and stringing new antenna wires. While the exact function of these towers is not fully disclosed for security reasons, they are apparently used to transmit and receive radio messages, many of which cross state lines.

At Fort McNair, Washington, D. C., defendant's employees installed electrical outlets for some classrooms and put in a post telephone circuit. The telephone circuit was connected with outside lines to provide facilities for interstate communication by the base with points outside.

At Fort Belvoir, Virginia, defendant installed a primary switching station. From this it ran primary electric current to various locations on the base and installed transformers or connected existing transformers at these locations. Some of the wires led to the officers' quarters, enlisted men's quarters and officers' club. The current also provided light for railroad tracks, streets and roads over which interstate shipments of materials and supplies were transported, as well as power to operate machines used to modernize and repair army equipment.

At Herndon, Virginia, under a subcontract, defendant's employees performed all the electrical work in a new building being erected. The building was later leased to the United States Post Office Department for use as a post office where interstate mail and parcel post are received and distributed.

It is well recognized that Congress did not make the coverage of the Fair Labor Standards Act coextensive with its power to regulate commerce, but intended to leave local activity to state regulation. Mitchell v. H. B. Zachry Co., 362 U.S. 310, 314, 80 S.Ct. 739, 4 L.Ed.2d 753 (1960); A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Wirtz v. Modern Trashmoval, Inc., 323 F.2d 451, 456 (4 Cir. 1963). However, three employee situations were clearly intended to be covered by the Act: Employees engaged in commerce, those engaged in the production of goods for commerce in a direct sense, and those engaged in any closely related process or occupation directly essential to the production of goods for commerce. See Mitchell v. H. B. Zachry Co., supra; Wirtz v. Modern Trashmoval, Inc., supra; Goldberg v. Barger Const. Co., 210 F.Supp. 752 (W.D. N.C. 1962). The Supreme Court has held that "* * Congress deemed the activities of the individual employees, not those of the employer, the controlling factor in determining the proper application of the Act." Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 213, 79 S.Ct. 260, 265, 3 L.Ed.2d 243 (1959). This court has held: "The activities of the employee, not those of the employer, are decisive on the question of the Act's coverage and the decision is governed by practical considerations rather than technical conceptions." (See Wirtz v. Modern Trashmoval, Inc., 1963, 323 F.2d 451, at pages 456-457, and cases there cited.) Pertinent provisions of the Act, as amended in 1949, are set forth below.¹

Projects: Building T-7, Building T-2842, Treasury Building

The Secretary contends as to the first three of the above projects, Building T-7, Building T-2842 and the Treasury Building, the government employees in the buildings were engaged in the "production of goods for commerce" and when defendant's employees installed the air conditioners and fire alarm system, they were engaged in an occupation "closely related" and "directly essential" to the work performed by the government employees.

Assuming without deciding that the government employees are engaged in the production of goods for commerce, after careful consideration of the record we do not believe that the installation of a fire alarm system and air conditioners in buildings in which the...