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March 28, 1945

WALLING, Administrator, Wage and Hour Division, United States Department of Labor,

The opinion of the court was delivered by: SCHOONMAKER

This is an action brought pursuant to Section 17 of the Fair Labor Standards Act of 1938, c. 676, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. (hereinafter referred to as 'the Act'), to restrain defendant from violating Sec. 15(a)(2) of the Act, 29 U.S.C.A., § 215(a)(2).

 The evidence disclosed that under fifty-eight different contracts relating to the maintenance, repair, reconstruction, and construction of different transportation, communication and industrial facilities, defendant employed workmen who were not paid in accordance with the provisions of the Fair Labor Standards Act.

 We shall discuss the work done under these contracts under six main categories, i.e.:

 I. Public highways, roads and bridges

 II. Motor carrier terminal facilities

 III. Telephone facilities

 IV. Railroad facilities

 V. Industrial Plant facilities

 VI. Loading iron ore and limestone


 Fourteen contracts involved in this case called for work in the maintenance, repair or construction of public highways, roads, and bridges in the Commonwealth of Pennsylvania.

 The plaintiff contends: (1) that the highways, roads, and bridges on which defendant's employees worked, are all instrumentalities of interstate commerce; that therefore all of defendant's employees engaged in maintaining and repairing thereof, were 'engaged in commerce' within the meaning of the Act; (2) that inasmuch as said highways, roads, and bridges are located in and about a large industrial area devoted to the production of goods for commerce -- and were used in such production -- the employees engaged in their maintenance and repair, were 'employed * * * in a process or occupation necessary to the production of goods for commerce' within the meaning of the Act.

 The defendant contends that the Act does not apply to any of its activities under the highway contracts involved in this suit, because: (a) Section 3(d) specifically states that the word 'employer', as used in the Act, 'shall not include the United States or any State or political subdivision of a State'; (d) that the streets and highways involved in this suit are local in their character, and not instrumentalities of interstate commerce; and (c) that the Act applies only to repair and maintenance work, does not apply to new construction, and that in instances where new construction only is involved, is not applicable for that reason. These contentions are without merit.

 As to the first contention, in carrying out these highway contracts for the Commonwealth of Pennsylvania, or any of its political subdivisions, defendant is an independent contractor. The employees involved worked for the defendant, not for the United States, nor any State or political subdivision thereof. There is no evidence showing any employer-employee relationship between defendant's employees and the contracting States or political subdivisions thereof. We therefore hold that defendant's employees are not within the scope of this exception of the Act. See Walling v. Craig, D.C., 53 F.Supp. 479, 483; Walling v. Patton-Tulley Transportation Co., 6 Cir., 134 F.2d 945, in which the court said on page 949: ' * * * The argument that it was the Congressional intention to make the Fair Labor Standards Act inapplicable to work under government contract, must be rejected. No reason appears why contractors for the government are to be permitted to maintain substandard labor conditions while private contractors are prohibited from so doing, and such view would thwart the clearly defined purpose of the Congress, particularly if applied at a time when all, or nearly all, major industries are operating upon government contract.'

 Nor does the fact that the economic burden of complying with the Act might be carried on to the State, and to political subdivisions thereof, constitute a valid objection to complying with the Act. See Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43, 86 L. Ed. 482, 140 A.L.R. 615; Curry v. United States, 314 U.S. 14, 62 S. Ct. 48, 86 L. Ed. 9; James v. Dravo Contracting Co., 302 U.S. 134, 160, 58 S. Ct. 208, 82 L. Ed. 115, 114 A.L.R. 318.

 As to the second contention whether or not the highways involved in this case are instrumentalities of interstate commerce, the test to be applied in determining whether or not this Act applies, has been stated by the United States Supreme Court in Overstreet in North Shore Corporation, 318 U.S. 125, at pages 129, 130, 63 S. Ct. 494, at page 497, 87 L. Ed. 656, as follows: 'We think that practical test should govern here. Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce. Cf. Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 218, 14 S. Ct. 1087, 1092, 38 L. Ed. 962. Those persons who are engaged in maintaining and repairing such facilities should be considered as 'engaged in commerce' even as was the bolt carrying employee in the Pedersen case, supra. ( Pedersen v. Del. Lack. & West. R.R. Company, 229 U.S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153) because without their services these instrumentalities would not be open to the passage of goods and persons across state lines. And the same is true of operational employees whose work is just as closely related to the interstate movement. Of course, all this is subject to the qualification that the Act does not consider as an employer the United States or any State or political subdivision of a State, and hence does not apply to their employees. § 3(d).'

 From the evidence in this case, we find that roads, highways and bridges involved herein are instrumentalities of interstate commerce, and that the persons engaged in maintaining and repairing them are engaged in such commerce. The factors that lead to this conclusion are these:

 (1) Pittsburgh is the center of a large industrial area encompassing Allegheny, Beaver, and Westmoreland Counties. It is the greatest iron-and-steel producing area of the world. It is also a leading industrial center in other industries; i.e., electric equipment, chemicals, plate glass, railroad supplies, machinery and parts, slaughtering and meat packing, paper, printing, etc. Raw materials for these industries move constantly by road and rail, and by road alone, between this area and other States. Traffic-density tests in the Pittsburgh area over a one-year period revealed that 155,983 motor vehicles passed through ten test-stations every twenty-four hours. 21,860 were commercial vehicles, most of them trucks. They originated in twenty-seven different States, and were moving to twenty-two States. Although the proportion of interstate travel varied among stations, it never fell below 64%. 63% of the trucks and 19% of the buses were making interstate trips.

 (2) The streets and highways involved in defendant's repair and maintenance contracts are roads available and regularly used by persons and goods moving among the several States. They are therefore instrumentalities of commerce.

 Among the streets and highways repaired and reconstructed by defendant, are portions of United States Highways 22 and 30. These highways are systems of interstate roads between important points. United States Highway 22 runs from Cincinnati, Ohio, through Pennsylvania and other States to New York. United States Highway 30 runs continuously from Oregon to Atlantic City, New Jersey. Each section of these highways covered by defendant's contracts is also a part of the Federal Aid System of Highways, part of the principal traffic routes of military importance designated by the War Department, and a part of the inter-regional Highway System tentatively selected by the National Research Council.

 We are of the opinion that the evidence clearly establishes the fact that the streets worked on by the defendant, constituting portions of these United States Highways 22 and 30, are used by 'persons and goods passing between various states', and therefore are 'instrumentalities of commerce'. In fact, the proofs in this case clearly show that all the roads of any importance in the Pittsburgh Area carry persons and goods in interstate commerce.

 The chief work done by defendant and its employees was the removal of old pavement and the laying of new. The work was done by various kinds of employees, i.e., -- foremen, timekeepers, service drivers, tractor operators, power-shovel operators, oilers and greasers, grader operators, crane operators, power operators, finishing-machine operators, roller operators, form setters, finishing blocklayers, laborers, flagmen, water boys, and watchmen. All their work was immediately related to the repair of roads. All were employed on the job site, except service drivers who were employed in hauling parts and tools to the site to make repairs to machinery and equipment, and to carry directions for the prosecution of the work. They were all engaged in commerce within the meaning of the Act. See Overstreet v. North Shore Corporation, supra; Pedersen v. Fitzgerald Co., 318 U.S. 740, 63 S. Ct. 558, 87 L. Ed. 1119, (reversing 288 N.Y. 687, 43 N.E.2d 83); North Shore Corporation v. Barnett, 5 Cir., 143 F.2d 172; Walling v. Craig, supra; Walling v. Patton-Tulley Transportation Co., supra.

 As to Campbell's Run Road, a public highway which connects U.S. Highways 22 and 30 with the City of Carnegie, Pennsylvania, we are of the opinion that it is an instrumentality of interstate commerce, even though it is a county road, because the evidence shows that out-of-state traffic goes over this road from Carnegie to and from points in Ohio. Then, too, this road is regularly used in the transportation of persons and goods between the various states. It is regularly used in the pickup and delivery of mail and freight, a substantial portion of which moves in interstate commerce. The same kind of employees who worked on this job were employed on the jobs on Routes 22 and 30, above referred to. The character of the work was the same, with the exception that in Campbell's Road the existing road was widened and straightened. In addition, two bridges forming part of the highway were replaced by new bridges at apparently the same locations. This road, as reconstructed, followed the same route as before and was used by the same traffic. But it remained the same instrumentality of commerce. (See Pedersen v. Fitzgerald, supra). In this case, the abutments of two interstate bridges had been damaged by flood and the substructures of two others damaged; and the plaintiff constructed entirely new abutments under two bridges and repaired the substructures of the others. The court held on authority of Overstreet v. North Shore Corporation, supra, that the employees were engaged in commerce and entitled to the benefits of the Act.

 The principle to be applied in the instant case is illustrated in Walling v. Patton-Tulley Transportation Co., supra, in which the Circuit Court of Appeals of the Sixth Circuit concluded that work on entirely new dikes and revetments on the Mississippi River was covered by the Act, even though ...

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