held that watchmen engaged in guarding pipe lines carrying crude petroleum to a refinery engaged in 'production of goods for commerce', were within the meaning of the Act.
In Bracey v. Luray, 4 Cir., 138 F.2d 8, the court held that employees engaged in sorting and loading scrap-iron which was thereafter sold intra-state to the scrap dealers, who in turn shipped in intra-state to processors producing goods for interstate commerce, were covered by the Act.
We list below the activities of defendant's employees which we find to be within coverage of the Act:
(1) The repair of the foundation of the steam hammers at the McKees Rocks Works of the Carnegie-Illinois Steel Corporation.
(2) The drainage ditch at the Irwin Works of the Carnegie-Illinois Steel Corporation, which was lined with concrete to improve its usefulness.
(3) The Irwin Works Roadways of the Carnegie-Illinois Steel Corporation.
(4) The Scaife crib-wall built by William B. Scaife Company along the Allegheny River adjacent to the Scaife plant to prevent erosion of the plant-yard.
(5) The Maintenance Office of the Irwin Works of the Carnegie-Illinois Steel Corporation, in which defendant's employees removed a brick floor and replaced it with a concrete floor.
(6) The Cold Mill foundation of the Carnegie-Illinois Steel Corporation, where defendant's employees were engaged in filling in an obsolete cold mill so that it could be used for storage and warehouse space.
(7) The William B. Scaife Company sewers where defendant's employees extended the sewers to shift the outlet downstream below the intake pipe of the plant's water supply.
(8) The leading platform of the Trafford Works of the Westinghouse Electric & Manufacturing Company, where defendant's employees tore out an existing loading platform and constructed a concrete platform.
(9) At the Irwin Works of the Carnegie-Illinois Steel Corporation, where the defendant's employees constructed foundations for relocating a down tilter, which was used in the production of steel.
(10) The annealing furnace bases at the Irwin Works of the Carnegie-Illinois Steel Corporation, which defendant's employees constructed.
(11) East Pittsburgh Turtle Creek Road, which was graded by defendant's employees so that it could be used as a roadway by trucks for the transportation of goods in process of production for commerce.
(12) Acid disposal facilities at the Irwin Works of the Carnegie-Illinois Steel Corporation. Defendant's employees constructed a concrete trench for waste acids.
(13) Electrolytic tinning plant at the Irwin Works of the Carnegie-Illinois Steel Corporation. Defendant's employees built the floor and foundation which was a part of an existing establishment producing goods for interstate commerce.
(14) Plate shearing line at the Irwin Works of the Carnegie-Illinois Steel Corporation. Defendant's employees built the concrete foundation for this shearing line.
(15) Weigh and traffic office at the Irwin Works of the Carnegie-Illinois Steel Corporation, for which defendant's employees built the foundation. This construction was so intimately bound up with the production processes that it could not be carried on without it, and therefore within the coverage of the Act.
(16) Tin Plate Building Extension -- Gas Cleaner Leantos. Defendant's employees constructed the foundations at the Irwin Works of the Carnegie-Illinois Steel Corporation. Both structures were necessary for the operation of the Works, and physically and functionally bound up therewith.
Under two separate contracts, defendant's employees loaded into railroad cars, iron ore and limestone at Cranesville, Pennsylvania, and Gascola, Pennsylvania. These products had been previously stored at these points by the Carnegie-Illinois Steel Corporation. After they had been loaded by defendant's employees, they were transported to the Carnegie-Illinois Steel Corporation's plant at Pittsburgh, where they were processed into iron and steel products. 'Goods' as defined by the Act, include 'any part or ingredient thereof' Sec. 3(i), and 'handling' is by express terms included in production. Sec. 3(j). We are of the opinion that this work was clearly within the coverage of the Act. Bracey v. Luray, 4 Cir., 138 F.2d 8.
Generally, in regard to all of the activities of the defendant involved in the case, defendant seeks to draw a distinction between repair and reconstruction of existing facilities, and new construction, contending that new constructions are not covered by the Act. It bases this contention on the ruling of the Supreme Court in the cases involving an interpretation of the Federal Employers' Liability Act, 34 Stat. 232, as re-enacted and changed by the act of April 22, 1908, 35 Stat. 65; 45 U.S.C.A. § 51, that the Congress could constitutionally regulate only employees engaged in 'transportation'. The Employers' Liabilities Cases, 207 U.S. 463, 28 S. Ct. 141, 52 L. Ed. 297; New York, N.H. & Hartford R. Co. v. Bezue, 284 U.S. 415, 52 S. Ct. 205, 76 L. Ed. 370, 77 A.L.R. 1370. However, in a later case, Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S. Ct. 592, 81 L. Ed. 789, the Supreme Court held that The Employers' Liabilities Cases, supra, was not controlling as to the power of Congress to regulate labor in railroad-repair shops, and that such laborers came within the scope of the Act. In connection with the consideration of the cases holding that The Employers' Liability Act applies only to transportation, it may be noted that the Act was amended in 1939, 45 U.S.C.A. § 51, so that it now applies to any employee 'any part of whose duties * * * shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce * * * .'
We therefore conclude that the rulings of the Supreme Court upon the Federal Employers' Liability Act furnish us no guide to aid us in the determination of the proper application of the Fair Labor Standards Act.
We are of the opinion that under this Act, there is no distinction between maintenance of existing facilities of commerce, and improvement or extension thereof by new construction. In Warren-Bradshaw Co. v. Hall, 317 U.S. 88, 63 S. Ct. 125, 126, 87 L. Ed. 83, the Supreme Court made no such distinction where oilwell drillers were employed in drilling new oil wells in the Panhandle Oil Field of Texas. That certainly was not repair or maintenance work. The Supreme Court held that they were engaged in a 'process or occupation necessary to the production' of oil, some of which ultimately found its way, when produced, into interstate commerce, and were therefore within the provisions of Section 3(j) of the Act.
Our conclusion is therefore on the whole of the transactions involved in this case that the plaintiff is entitled to an injunction, as prayed for.
Our findings of fact and conclusions of law are filed herewith. An order for judgment in accordance therewith may be submitted on notice to opposing counsel.
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