W. Willard Wirtz, Secretary of Labor, U. S. Department of Labor v. B. B. Saxon Company, Inc.

365 F.2d 457
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 4, 1966
Docket21414_1
StatusPublished
Cited by42 cases

This text of 365 F.2d 457 (W. Willard Wirtz, Secretary of Labor, U. S. Department of Labor v. B. B. Saxon Company, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
W. Willard Wirtz, Secretary of Labor, U. S. Department of Labor v. B. B. Saxon Company, Inc., 365 F.2d 457 (5th Cir. 1966).

Opinions

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 [460]*460service, 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 [461]*461must be in commerce itself. This distinction has been recognized by the courts. “[T]he 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 mdividually.

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