# Petition for Writ of Certiorari — Mitchell v. Lublin, McGaughy & Associates > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0107%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 358 U.S. 207 ## Text wv ; > ‘ Tans Pp. hecanis ‘Salamtatiy: or ‘tea Unzren Btn tol ane ise) apie ext mid : v. Lomas Mea & Asoc mA. A TN pote PETITION FOR A WRIT OF pmeriohant’ 70 THE omieen ararns _ COURT OF APPEALS FOR THE WRaee: orRourr © se -~, pie P " 3, URE RANKIN, | Solicitor General, ' | Department of Suatice Meabingpen 86, DiC.” STUART ROTHMAN, Ppa For ay i ’ BESSIE MARGOLIN, . Assistant Solicitor, iE ile se BRS a8 EUGENE 8. {CERN Fe a! Clipe ar Re hg) Sa 3 aff Attorney, , 5% { ' : ? Bes Depértmen of Taba, Woshigton 3... eh ee ee ae Sem S @ 4 3 144 F. goal a ERT TONES a ie 2 LET 15, 16 | Alstate Construction Co. v. Durkin, 345 U. 8..18.._... 21, 23: Bennett v. V. P. Loftis Co., 167 F. 2d 286_-.-.--.... 15 Borden v. Borella, 325 U.S. 679_-............--.-- es os. Durkin v. Joyce Agency, -Inc., 110 F, Supp. 918,. affirmed, sub nom. Mitchell y. Joyce Agency, Ine... - 348 U. 8. 945, reversing, 211 F. 2d 241_..-....._- 17 10 East 40th Street v. Callus, 325 U.S. 578.-.-....-- 17, 18 Kirechbaum Co, v. Walling, 316 U.S. 517_-_.-.--.-- 18 Laudadio v. White Construction Co., 163 F. 2d 383__- 14 - MeComb v. Turpin, 81 F. Supp. 86...---: Pt Ab al 24-25 Mitchell v. Brown Engineering Co., 224 F. 2d 359, ts _ certiorari denied, 360 U.S. 875_............_..-- reas Mitchell v, Kroger Co., DOG T: O0-006. 5 55. e - 15, 16 . Mitchell v. Vollmer & Co., 266 U.S. 437.0..0..0--... 18 ~ Powell'v. United States Cartridge Co., 339 U.S. 497: 18, 20, 22 ~ * Biteh v. Puget Sound Bridge and Dredging Co. 156 F. Pee eh ad a a iM Roland Electric Co. v. Walling, 326 U. S. 657_. Sater A ee ‘Schulte Oo. v. Gangi, 328 U.S. 108.._...:.-.------ sca 19 Walling v. Jacksonville Paper Oe, 317 U. S. S64...... oe 456046—58—1 @ \ bia: stile: Western Union : Telegraph Co. v. Pendleton, 122 - U-.8. BAT ..-.na-annitesnnsensnnees SAC. BALE SS Oe Statutes: '* Fair Labor Standinds Act of 1938, c. 676, 52 Stat. ~~ 1060, as amended, C: 736, 63 Stat. 910 (29 U.S. 3 3 : y 3 Sec. 3 Leela nga eee ------ goocooe- R. 4 ee eee gee norte gens nice tb ape : Federal-Aid Highway Act of 1956 Public ine 627, " ~. 84th Cong., 2d Sess., 70 Stat. 374)......-- eeneonee ae Miscellaneous: Hees : Annual Report ot the Bureau of Public Roads for Fiscal Year. 1955, ‘Pp. , Lib Re > wot noeane cs bebeewea 28 29 C. F. R. (1957 Supp.) Pt. 541. eae wie mils 4 95 Cong..Rec.: » pp. ee i ee es 20. p. rg oP OL OES i SO EE a Pp. 2. aa 26 pp. MAE ssc clita sib Minin as eee co ae Dept. of Labor Interpretative Bulletin, Part 776, — - Subpart A, General (May, 400), 29 C. F. R. 776, 1 ) GC)... + -ansqenee ie - PETITION FOR A WRIT OF. CERTIORARI 1 TO THE | UNITED STATES COURT OF APPEALS siren THE FOURTH OIRCUIT - a. . ‘The Solicitor General, on behalf of the heislens? ” _ of Labor, prays that a writ of certiorari issue to re- view the judgment of the United States Court of Appeals for the Fourth Circuit, entered i in the above case on November 25, 1957. : , OPINIONS BELOW The opinion of the District Court (R..la-9a)’ is “not officially - reported (13 WH Cases 211). The opinion of the Court of Appeals (App) A, —s BPs 29-44) is reported at 250 F. 2d 253. | 1 Record references are to pititionar’s appendix as printed for tf Cont of pp sn cof of eb — woh nS a -@ 2 The judgment of the Court of Appeals was ‘entered on November 25; 1957 (App. A, infra, p. 44). The — = rgd of this Court is invoked under 28 U. S.C. 1254 (1). | 2 | __QUESTION_PRESEWTED—___-__-__.— Respondents are partners in a consultant architec- - tural-engineering business—with offices in Norfolk, Virginia and in Washington, D. C., and foreign as- sociates. overseas—engaged in preparing. plans and specifications essentially for industrial, as distin- — _ guished_from residential, projects... A substantial pro- _ pogfion of their work is for out-of-state clientele or projects, and the great bulk of it consists of the prep- ' aration of plans and specifications for federal, state _ and municipal governmental projects, many of which are for the-improvement, repair, or enlargement of interstate instrumentalities or facilities, - The question presented is: Whether Paationdeinta? | non-professional employees (draftsmen, fieldmen, and _ ' ¢lerical workers)—who work on the plans and spec- ifications for projects for improvement of interstate ‘instrumentalities or facilities, and whose regular — - duties also include the preparation of drawings, — plans, specifications, etc., transmitted across - state lines, or direct tl nent communica- tion by telephone and co dence, or travel across state lines—are engaged ‘‘in commerce or in the pro- duction of goods for commerce” within the meaning of the Fair Labor Standards Act. Pertinent‘ provisions of the Fair Labor Standatds Act of 1938, ¢. 676, 52 Stat. 1060, as amended, c. 736, 63 Stat. 910 (29 U. 8. C. 201, et seq.), are set forth in — full in petitioner’s appendix as printed for the Court ~ of Appeals (R..116a-119a). The provisions. partic-— _ ularly involved Deni are Sections 3 ), (i), and Gs as follows: Sxo. 8.-[52 Stat. 1061; 63 Stat, 911). As used in this Act— HENS oe es he eae See x ° . i ms “Commerce” ‘means trode: \ commerce, __ transportation, transmission, or eommunication -_ among the seyeral States or between any State ‘and any place outside thereof. | (i) “Goods”. ‘means [are (including: ‘dine and marine equipment), wares, products, com- . modities, merchandise, or articles or subjects of -commeree of any character, or any part or in- gredient thereof, but does not inelude goods after their delivery into the actual physical possession of ‘the ultimate consumer thereof other than a prodseer; manufacturer, or prec: ! essor thereof.- (j) .“Produced”’ nieans produced, manufac- “tured, mined, handled, or in any other manner worked on in any State; and for the purposes ,of this Act an employee shall be deemed to | have been engaged in the production of goods __ _ if such employee was employed in producing, - . manufacturing, “mining, handling, transport- ing, or in any other manner working op. such, ease “of .: goods, or in any celosely related process or oc- _ cupation directly | essential to the Production thereof, in any State. : This ection: was beeaht by the Seéretary of Labor under Section 17 of the Fair Labor Standards Act | to.enjoin respondents from violating-the overtime and _. record-keeping requirements of the Act with respect ' >to their rion-professional ee nett men and stenographer-bookkeepers." , a Respondents are partners engaged in a oobaial- ant architectural-engineering business, with a princi-~ pal office in‘ Norfolk, Virginia, and a branch office — in Washington, D. C:, and with foreign associates in France and Italy. : — Respondents’ business relates essentially to indus- trial, as distinguished from residential, projects, and , admittedly a substantial amount of their work is for} out-of-state | projects and out-of-state clientele, at | *\. ®t is stipulated that, if the Act covers these employees, over- time and record-keeping violations exist. (Stip. R. 11a; R. 94a-. 97a).. This action is not concerned with “professional” employees _ " who may meet the requirements for exemption under Section 13 . (ay (1) of the Act, which provides: “(a) The provisions of sections 6 and 7 shall not apply with” Tespect to (1) any employee employed in a bona fide executive, ad- - ininistrative, professidnal, or local retailing capacity, or in the capacity of outside salésman (as such terms are defied and de- limited by regulations of the Administrator) ; die Bg 3 iNe wbstggticns lesan: Ga ‘hel vallesil Toy seipaniionte ta'the courte _ below and is. not presented here, the only issue being whether — employees who do not qualify as exempt “professional” employees _- as defined and delimited by the Secretary of Labor are within the general coverage of the Act. See 29 C. F. R. ny saa cic Pt. 541.3; 14 F. R. 7705. ey : PEOe — = Teast 50% of the meal of the Sediien office: relat- _. Ang to out-of-state projects (R. 13a). As summarized _in_the opipion below, “[tYhey 1 have worked. and are > now employed on numerous projects in ‘Virginia, _ Maryland and the District of Columbia, and have worked on some projects in North Carolina and over- seas”’ (App. A, infra, p. 31). “These activities re- pil constant co-ordination ard communication, as well as. transinission of information - and materials between the two . offices” (tbid.). The plans and > gpecifications . are “frequently transmitted out of : state” (R. 6a), beth- between respondents’ offices .for = correlation, integration or review (R. 68a, 72a) P and, - a8 indicated in more detail, infra, pp. 8-10, to out-of- \ state clients with copies for out-of-state bidders, con- ‘ tractors and suppliers of materials. — | Respondents employ a total of 65 to 70 employees ie _ cluding professional and non-professional), of whom about: 30 are in- the ‘Norfolk office, about 20 in the _ Washington . office, and about 15 to-20 overseas (R. 12a, 85a). With ‘‘a direct private telephone line be- tween. the N orfolk and Washington offices,” ‘‘tele- phonic communications are nunferous and the line is used for the purpose of controlling, supervising and coordinating: the work of the Washington office from Norfolk” (R. 5a). Also, ‘‘payrolls for both offices, as well as for employees in foreign offices are made up in the Norfolk office.and checks are mailed to - Washington and foreign countries” (ibid.). No set rule is maintained with respect to where a set.of plans ——~is prepared—‘‘if we want:to do part in Washington we doit; if we want to do part in Norfolk, we do it’’ (%. 68a). As both. the trial court’ and the Court of 6 Appeals’ fotind, Inedbidhdeints” bth tila arafts- ‘men, fiel ‘and clerical employees | engage substan- - ‘tially’ in é extensive interstate communications or ; interstate travel incident to respondents’ business and — in the preparation of plans, drawings, specifications; Ate, “many of which are transmitted across state ~ * Tines,’’. and many of which are prepared for inter- state projects (App. A, infra; pp. 32-34; R. 5a-6a).° 2. The great bulk of respondents’ business consists of the préparation of plans, specifications and draw- ~ ings for federal, state and municipal governmental projects. -As stated in the opinion below, they “‘in- clude, primatily, projects for the improvement, en- largement and. repair of installations at military . bases, airfields, shipyards: and radio stations for the United. States military services, and also a substan- - tial number of ‘state and municipal undertakings as projects.” (App. A, infra, p. 31.) About 60 percent of the work of the Virginia office is done pursuant to contracts with United States Army and Navy — cies, and about 85 percent of the work of the Washing ‘i olllen tn oy thie ASiny ait Navy ior tye state atid municipal government agencies (R.2a).. For details of the nuimerous projects for improvement, repair, or enlargement of interstate instrumentalities: or facili- ties, on. which respondents worked for the two year — ' period ending April 1956, see. sn cra 5, infra, ‘pp 4-47 3. The plans and spelteations furnished by re- spondents for such projects contain detailed drawings, blueprints, surveys, estimates and other data, together | with. specific detailed ne to the builder o on every aspect of the actual construction work, ‘The - industrial-type projects, and particularly the govern- - ment. projects, on which respondents have been pri- marily engaged ‘‘could not be constructed without the plans and. specifications prepared -by the [respond- : ents’] employees”’ (App. A, infra; p. 32; R. 48a= ,49a),' These plans and specifications. obviously .in- clude. much more than a professional architect’s’ designs and advice. As -is illustrated by the vol- - -. uminous sets. of p and specifications prepared by .: respondents for. proji listed in Appendix A to the stipulation. (R..18a-29a)," most of the work is evi- 4 : dently more engineering than architectural in nature, | and it involves the assembling : and compilation of — detailed estimates, measurements; field survey: infor- mation, materials and. equipment specifications, car- . pentry, electrical and other construction data, and - similar routine work of a non-professional nature, _ The plans. and specifications. include in minute . detail all of the data, information, and instructions needed to guide the clients and their contractors, _Subeontractors and material suppliers, in bidding, financing, purchasing materials and equipment, as well as in carrying out the actual construction work _ GR. -100a).. The specifications inelude not only the - general conditions, which are to govern the construc- * Representative samples of such plans and specifications were attached to the stipulation as Appendix.C (R. ‘12a, 33a) ‘and an_ illustrative set of specifications was introduced. as Plaintiff's Exh. 4 (R. 44a-45a). Because of their bulk, they ,'. tai asearscars : The importance of the. issues: presented, eyen. if their impact were limited. to einployees of | similar’. = ‘ architectural-engineering | firms, is evidenced by. the number and size of such firms and the extent to which their business depends. upon interstate. operations in . the modern industrial pattern... While official. up-to- a date statistics are not available, a recent coniprehen- sive. survey of the. private practice ‘of. engineering in _ the United States hy.the publication Consulting En- _ gineer," together with some statistics for earlier years - . in, Government.reports, leaves no doubt that there -_ are thousands of non-professional emp!oyees in. this field.” According’ to a 1953 report. of. the Depart- , ments of. Commerce and Health, Education and Wel- _ . fare, 12,219 architectural-engineering | consultant firms . _ reported on employees to the’ Bureau: of Old Age and Survivors. Insuranee, and listed. a total of almost img) Of thet Qdbinionsis,: we ‘sabmit; far-fetched” and san unwar- ranted... Even if..the citation of that decision could be con- strued as an administrative acceptance of it, the factual record ” | in the ‘instant case is bo different: in crucial respects as to -pre- elude any’ inference that the firm heré involved qualifies as a | epee magsap mp iad yore lapacuis Naha wey As | the opinion in the Turpin decision emphasized, “the Bin esesaes bed onrellSopeomtlterir pom bhi thie base} | - furnishes only meager’ information”. Ties tees cc dernier, Spero emer rec - © in ie record “ec fox the Pp. 8 ruary 1957 i issue, pp. 7 71-82. 26 | | 130,000 eisaiaopiat for the mid-March payroll tied. ” . The Consulting Engineer’s 1957 survey of the engi- - ae neering profession shows. that ‘the average size of engineering: firms is 31. persons, about two of whom are principals and the remainder about evenly di- vided between engineering and non-engineering em- ployees (January issue, pp. 87-88). At peak periods, -the average figure is about 50 persons, many firms, of course, employing a much larger number than this average, one or two of the largest firms having as many as 25,000 to 30, 000 non-engineering employees during peak periods (id. p. 87). The survey also re-.__ ports that 20 percent of the engineering firms also do architectural work to some extent and that the trend — - today from ‘the. scope of eperetions of firms 3 is toward combining both services in one firm lew ; - Tuary issue, p. 77). Contrary to the assumption by the court ‘Walow that the business of such firms is “essentially local,’’. the . | ‘Cousilting Fiigineers survey reports that ‘most of the firms in. this tield do not limit. their operations to any one state;. 72 percent. of the engineering con- sulting firms are active: in more than one state, and 28 ‘percent have expanded ‘their -geographical | range — to foreign projects. The survey emphasizes" that. é “consulting engineers are ‘greatly expanding ‘their | : geographical range,” the situation being “quite differ- 3 Patterns, , mrt Pr t. when first wa. at which time 53% of the firms (in contrast to only 28% today) limited themselves to operation within one st&te. The survey adds: “This geographical expansion will continue. In fact 12 percent indieated that they plan to expand fur- . ther their geographical fields. of operation. Of these about two-thirds indicated that they planned to change from intra- to inter-state operation, while one-third plan to go into foreign work.” ncpbataess issue, p. 79). IN: Gaetacty In addition to this expansion. into direct interstate operation, the survey shows that industrial work (par- ticularly for. federal, state, and. municipal govern- ments) constitutes a major part of the business in _. this field .and is constantly increasing. As of the time of the survey, 29% of the consilting engineer ing firms were doing work for the Federal Govern- ment, 28% for state governments, and 44% for local — : governments, and in every section of the country “a higher percentage of firms are increasing their. work ~ for Federal Government than are reducing their work - for this client.” Some indication of the substan- tiality of . this type of: work - is evidenced by the - expenditures of the Army and Navy for architec- tural and engineering contract work during the year: "1957, which totaled over $113,000,000 (on almost 2,000 __ contracts for $10,000 or more each). Undoubtedly a large proportion of this work consists of the prep- aration of plans and specifications for interstate in- 48 February issué, p. 81, Table 4, p. 82. “This data was obtained from the Office of the Assistant Secretary of Defense for Supply and ‘Logistics, Division of | and Analysis. 28 strumentalities and facilities of the type that com- ‘prise a major part of the respondent - Lublin, Mc-. Gaughy firm’s business (supra, p. 6, infra, pp. 45— - 47). Another major source of the. business of such firms is highway construction. According to the An- _ nual Report of the Bureau of Public Roads for Fiscal - Year 1955, the state highway departments had com- “ mitted 3.5 million dollars for fees to private engi- cheering firms in connection with their federally-aided — road projects alone (Annual Report, :p. 7). This _ type of business will, of course, be considerably in- — -ereased under the gigantic road construction program | initiated by the 24°‘billion dollar. Federal-Aid High- | a way Act of 1956 (Public Law. 627—84th Cong., 2nd Sess., 70 Stat. 374). The Department of Commerce has estimated that the cost of preliminary engineer- ing (surveys, detail plans, specifications and contract documents) required for this program will exceed 114 billion dollars (House Document No. 300, 85th Cong., 2nd — P. x Table ¢, p. 6). “Iti is respectfully submitted that this petition for a . writ of certiorari should be granted. _ : : J. Lez RaNKIN, : et ss Solicitor General. ° Solicitor, Besste MARGOLIN, _ Assistant Solicitor, . EUGENE R.: JACKSON, _ Attorney, | . Department of Labor. FEBRUARY 1958. concLusion ——— ty — — a : ~~- APPENDIX A OPINION OF THE COURT OF APPEARS United States Court of Appeals: for: the _— 3 Circuit - ~ 3 "No. 7488 James P. Mercumz, SECRETARY OF Lavon, Unrrep STATES Derangement OF pete: APPELLANT v. Enis McGavuGHY AND i iiine Minar A Co-Panrum- SHIP, AND ALFRED M. LUBLIN, Joun B. McGavauy, -- Wuiuw T. McMuian AND Wuiiam MarsHath, Jn., InpIvipvaLLy aNp Domne. Bustvess as. LUBLIN, -MoGaveny AND Assooraras, APPELLEES : APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE micsincal DISTRICT OF VIRGINIA, AT NORFOLK _ (Argued October 23, 1957.. Decided ‘November 25, 1957) Before Pannen, Chief J udge, and Soren and Hayns- 7 he Wonee, Cireuit J udges ‘ 7 Bessie ikivoctin, Assistant Solicitor, United States - Department of- Labor (Stuart Rothman, Solicitor, Eugene R. Jackson, Attorney, and Jeter 8. Ray, Re- gional Attorney, United States Department of Labor, on brief) for Appellant, and Robert C. Nusbaum and Algn. J. Hofheimer for Appstion. : (2) a oo | ‘Soper, Circutt J are . The Secretary of Labor brings this suit under the Fair Labor Standards. Act, as amended,* against - Lublin, McGaughy and Associates, a co-partnership, and against the individual members of the firm who _ are architects and engineers with a main office in ~ _ Norfolk, Virginia, and a branch office in -Washington, — ‘DQ ‘The complaint charges that the defendants have violated various sections of the statute, in that they have employed many. persons in-interstate com- - merece and in the production of goods fo ' interstate commerce for workweeks longer than without compensating them for the exe employment at rates not less than one ar | - (144) times the regular rates at which |they were employed, in. violation of §§ 7 and 15 (a) (2) of the statute; and in that they have failed to keep adequate records of their employees’ wages and hours and other — conditions—as prescribed by the Federal Regula- — tions—in violation of §§ 11 (e) and 15 (a) (5) of the Act; and in that they have transported goods in inter- state commerce, in the production of which many of their employees had been employed, in violation of §7— of the Act. An injunction was prayed restraining the defendants from further violation of the statute. The District Judge, after hearing, denied the relief prayed, resting his decision in large part on the con- _ clusion that the plans and specifications prepared by _” the firm were not “goods” within the meaning of the : Fair Labor Standards Act. . | _ The principal questions to be considered grow out of the contentions of the Government: (1) that the © drawings, plans and specifications prepared by the employees of the firm are “goods”’ and that the’prep- _ | ” Cet of June M5, 1996, ch:.676, as amended by the Fair Labor. Standards amendments of 1949, ch. 736; 29 U.S. C. 520 of. oy, 31: aration thereof is “production of goods - for com- merce” within the meaning of §3 of the statute; and (2) that the- employees of the firm who participated _in interstate travel and communications required for the ¢onduct and co-ordination of the firm’s offices in ‘merce’’ within the meaning of §7 (a) of the statute; and (3) that a large part of the work of the firm’s draftsmen, fieldmen and clerical employees. is’ so closely related to projects for the improvement, ex- ‘pansion or replacement of interstate instrumentalities _ as to bring them within the ‘‘in-commerce” coverage of the Act. The\ Government~recognizes that. em- . ployees engaged in ‘a. professional capacity are ex- empted by § 13 ofthe statute, but seeks to bring the non-professional employeés of. the rac within the . coverage of the Act. — _ oThe defentants, who reside in Norfolk; are archi- tectural: and consulting. engineers. They have worked and are now employed on numerous projects in: Vir- . sinia, Maryland and the District of Columbia, and. '. have worked on some projects in North Carolina and overseas. They include, primarily, projects for the improvement, enlargement and repair of installations —— at military bases, airfields, shipyards and radio sta- tions for the United States military services, and also - a substantial number of state and municipal under- takings and projects. These activities require con- ‘stant co-ordination: and ‘communication, as -well as. transmission of information and materials between the'two o In general, the defendants collect the "Necessary gf 2 for the projects, confer with their _ clients in regard thereto, and prepare the drawings, estimates and surveys which are used in connection — with the projects. They also supervise and. inspect _ the construction from an architectural and engineer- Norfolk and Washington ‘were ‘“‘engaged in com- . | , ; 32 | ing standpoint by furnishing surveying and engineer- 5 ‘ing services to contractors. while: construction. is in progress, To. seetorsn, this work. the defendants ai: about thirty employees in the Norfolk office and twenty employees in the Washington office, including archi- tects, engineers, draftsmen, fieldmen, office managers, stenographers and bookkeepers.. This action is con- - cerned only . ‘with the nonprofessional employees consisting of draftsmen, eee, clerks and — stenographers. ; In the course of the business necessary surveys and typographical maps are made and then ‘the: * draftsmen, working under the supervision of the | .engineers and architects, prepare the drawings and designs from which bluepgints are reproduced. The. drawings, together with explanatory specifications, contain the information necessary for estimating the cost, financing the project, the bidding of contractors, and guidance to the contractor in constructing the project. The military, governmental and commercial: structures on which the defendants are now and in ___recent years have been engaged are intricate in design . and construction and could not be constructed without the plans and specifications prepared by the em- ployees, many of which are transmitted across state lines. They consist of physical material of negligible value in itself, though, as copies of the master draw- ings, they contain information which. may be of sub- — stantial value to the particular client in the construc-_ ’ tion _of the project and in planning subsequent. alteration and repair. It is esttmated that on: the. _ ‘average,| one-half of the. charges of the defendants _ for thei architectural and engineering services is . for work upon the master.drawings and specifications and in the development of information ‘embodied in © ¥ if 33 The sic specifications and sathiaiiie ces for government agencies, which. comprised the greater part of the. defendants’ work, are submitted to these J~ agencies and become. their property. Frequently ‘numerous copies of. the specifications and drawings are required. The advertisement of a proposed gov- ernment project results in requests for sets of plans. and specifications from out-of-state contracting firms _ and these are sent by the Government to the prospee- tive bidders to enable them to prepare and submit bids, When required by the terms of the contract the defendants furnish copies of the specifications and — drawings which are reproduced by an outside blue- - print cothpany. For commercial clients copies of the drawings and specifications are furnished while the originals are retained by the defendants in case addi- tional copies are needed. These copies are also ob- tained from commercial blueprint establishipents at. an additional cost-to: the clients. The fieldmen include surveyors, transit then - and ‘chain men who work under the. supervision of a pro- —from- fessional enginees. .They survey boundaries, take — borings, ete. e work site, frequently traveling a of Columbia to the site in Maryland and returning to the defendants’ office in Washington in connection. with their duties. They have little or no duty-in the office but gather the material and ~ bring it to the office as a basis for the preparation of the drawings and specifications. Some of the field _ work ‘was done on. projects for. the Washington Suburban Sanitation Commission located in Maryland to. which a large part of the time of the firm’s Wash- ington office has been devoted for the peried of a — -year. A survey -reports, to’ the Washington office each morning, drives to Maryland with the necessary field books ard field equipment, makes surveys and gathers data, which. is brought back to 34° ' the Washington office at the end of each day and - turned over to the draftsmen. For approximately - 50 per cent of their commercial clients, for whom a minor part of defendants’ work is performed, the defendants supply employees who supervise the con- _ struction of the project so as to determine whether __made for this type of work. _. Proje for the improvement or repair of inter- ~— out-of-state as well as loeal creditors. : We consider first the contention of the Government the non-professional employees of the defendants are - “goods”? within the meaning of §3°(1) of the Act. where the term is defined as ‘‘goods, wares, products, ° commodities, merchandise, or articles or subjects of - @ommeree of atiy character.”” The District Judge seuss HE ei iil ae ih an oe FH i ; 3 | a E 4 ges = i of Sek E£8seg: & Paz. oss = ae il f I oe 6S 3 ae Tae! Heit tt ins 36 of commerce. Bozant v. Bank of New York, 2 Cir., 156 F. 2d 787. This distinction was well. made by Cireuit Ju Learned Hand in the ease just cited, 156 + 2d at page 780 as follows: “Some of the activities which went on, we rs, or “aan deeds or i or pre- pocse Maer fon, wanes is not on that account i wouee Deee C53 same is true of the The tion o's broke e208 (i) might . 0 in i e. ' literally go so far even as that; but it would be | Congress meant to cover sich indent of « | snientaiaa al limictaliie this Gost in tue — Bulletin, Part .776, Subpart A, Gen- eral (May, 1950), Title 29, Chapter V, Code of vied Reg. (776.19 (b) (2)), where it said: : On the other hand, the legislative histo makes it clear that employees of a “local ras tectural firm’’ are not brought within the cov- erage of the Act by reason of the fact that _their activities ‘‘include the preparation of plans for the alteration of buildings within the ~ _ §state which are used to produce goods for in--. “directly « essential’’ enough to the production Roem close relationship between their per- — : ormance and such. uction when they are - ‘ performed by employees of such a “local’’ firm. “We are now told, however, that this pronounce- ment is no longer tenable because of the decisions of | the Supreme Court in Western Union Telegraph Co. - v.. Lenroot, 323:°U. 8. 490 (January 8, 1945), and | eae Powell v. U.S. Cartridge Co; 339'U. 8. 497 (May 8; 1950). In the Western Union case the Supreme Court held that telegraph messages are “goods’* with- in the meaning. of § 203 (i) because they are “sub- jects of commerce”, one of the terms in the inclusive list enumerated in the section. In the course of the opinion, the Supreme Court noted that in Western Union Telegraph Co. v. Pendleton, 122 U. 8.-347, in declaring invalid a statute which attempted to regu- late the activities of telegraph companies, it had held that intercourse between the states by. telegraph-mes- sages amounts to interstate commerce in the trans- portation of ‘ideas, wishes, order, and intelligence’’. This holding, it is now said, demonstrates that the embodiment of ideas contained in plans and specifi- Aet. — The Powell case held that munitions mitilientired by a private: contractor at a government plant were production of goods for commerce’. Munitions were held to be “‘goods’’, - because they were “produ within the meaning of '§ 203 (i) of the statute; and. cations are also “goods’’ within the meaning of the . . ‘‘goods”, and that his employees were engaged ‘‘in the. ee iy the employees were held to be engaged in ‘the’ pro- | __ duction of ‘“‘goods” for commerce, although the. muni- - tions were not to be sold but used in the war, because — | of their. “transportation’’ to destinations outside the — _ state. : We.-do not think that these decisions: require us to abandon the conclusion reached by Judge Chesnut and by Judge Hoffman in the pending case. The Depart- ment of Labor itself did not give this effect to the ‘ Western Union decision of 1945, notwithstanding the holding therein-that the transportation of ideas em- bodied in tangible form may amount to:commerce between the states: On..the contrary, it issued its Bulletin in 1950 following the lines laid down’ by e . Judge Chesnu The enchant distinction between ‘ the business of interstate cornmunication by telegraph | . and the activity of making plans and drawings which are used merely as guides for building construction, is so obvious as not to deserve further discussion. Nor does the Powell case support the Government’s position. It does show that the term “ ” in. § 203 (i) of the statute is not limited to those bought . and sold, ‘but its holding that munitions of war are %: *‘goods”” in. no way tends to show that such articles as plans and specifications, which possess markedly - different characteristics, are also. goods” a statutory-sense. — The defendants uy this case ‘were independent oe gineers and architects engaged in essentially local. activity in each ‘of the officéS which they maintained. _ They were not employed to manufacture documents . to be sold or transported in interstate commerce but to give’ professional . advice and. assistance which of “necessity was given permanent form as plins or speci- _ fications so as to be available for guidance and refer- — » ence. Clearly sych plans were not “goods” in the .— ordinary ease, although it is possible to conceive a sit- uation in which standard plans or blueprints for build- ing construction might be prepared for transportation or sale in such a way. as to fall within the coverage — of the Act. That, however, did not happen here. The . ' \ eopies of the plans that were made and sent out for the convenience of the clients and their bidders were _ not transported as subjects of co! but in order — to show the interested parties the sort of. construction ' that was required; and the mere fact that the docu- | ments crossed state lines did not alter their inherent ‘nature. | a The: second: contention of the Government is based aa on the interstate travel and communication of the — employees of the firm between its two offices and ye - : 39 nen these offices and the locations of its oe state clients and their contractors. It is said that - these activities constitute engagement.“in commerce”. — event thongh the plans and sptcifications .are not | ” produced in commerce within the meaning — of. the Act; and many cases are cited in which the Courts have found that the transportation of docu- . ments-and records as well as the travel of employees _ which mga oom reahat seer digo , and other facilities of interstate an important, if not a vital fune- _ tion in the operation of businesses which extend _ beyond state boundaries, e. g., a holding company in a eae seventeen on N eat ht 348 U. 8. 222; the business transactions \ across state lines of a fire insurance company, United _ States v. Underwriters Assn., 322 U. 8. 533; the spondence through the mails from state to state, Jn- Tet Book Co. v. Pigg, 217 U. 8. 91; Federal Trade Commission v. Civil Service T. Bu- reau, 6 Gir. 79 F. 24 113; and the. business of com- cati s itself by use.of the telegraph, Western legraph Co. v. Lenroot, 323 U. 8. 490, and Seorgiersnanare tag L. BR. B., 30k "that a clerk who prepated payroll checks mailed to from state to state are forms of interstate commerce - / 40 : onus in different states and 4 kept personnel al S ‘statistical records in the office of an oil company — concerned with the interstate transportation of petro- leum products. was engaged in commerce; and in Durkin v. Joyce Agency, D. C., N..D., Tk, 110 F. Supp. 918, 923; 348 U. S. 945, that clerks and switch- - board operators employed by a warehouse ¢orpora- tion concerned with interstate transportation who | _.used the telephone and mails in carrying on the business were engaged in interstate commerce, and in ‘Aetna Finance .€o. v.. Mitchell, 1 Cir., 247 F. 2d. 2. 190, that employees of a loan company whose opera- tion involved a constant flow of documents, informa- tion, etc., through the mails were’ engaged in inter- _ state commerce. The transportation of persons from state to state in the course of business operations . May also. constitute interstate commerce, Edwards -¥. California, 214 U. S. 160;.Caminetti v. United. - States, 242 U. S8.-470; Hemans v. United States,6 _ — Cir., 163 F. 2d 228, 239 ; Cleveland v. United ‘States, 329U.S.14 7 ‘It is manifest however, nokintthatensdiily. this well ~ established line of authority, that the mere use of the mails and of transportation facilities across state lines. is not necessarily interstate commerce. There must be -some-relatio;: toa business whieh: is interstate in character. This is found most clearly where the very _ essence of the business is interstate commerce itself, as in the sending of telegraph messages, and it also exists where the employer’s business is interstate in character, as illustrated above, in the course-of which interstate communication is a material But _ . where the business is essentially local and there is no production of “goods”, communication which is merely incidental to the local enterprise cannot be classed as commerce. The interoffice communication in this ease related to the local production: of plans and & 41 specifications, and the fieldmen who travelled from state té state were sent out to get the information _ as to the character of the work to be done, so that the - architects and engineers might. do their preparatory work. All of these activities related to the production | of plans, partook of their intrastate character, and cannot. be fairly characterized as commerce between states. Finally, the Government contends that it should prevail because the work of certain. draftsmen, field- _men. and clerical employees relates to projects for the improvement, enlargement and repair of instru- mentalities of interstate commerce; for the most part . military installations, airfields, shipyards and radio facilities for the United States, as’ well as municipal governmental projects such as turnpikes and road im- provements, and projects for private enterprise such’ _as was done in the remodeling of Trailway Bus tter- . minals ‘in Washington and in Baltimore. Undoubt- edly the term “in commerce” covers not only the ac- tivity of workers who share directly in the work.of construction but also those who do the paper work, such as the preparation of lists of material or pay- Tolls, or who serve as fieldmen and timekeepers on — the job. In some cases there is reference to the prep- aration of plans or drawings for construction work by" employees of the eontractor.as evidence that work “in. commerce” is being performed. See Laudadio v. . White Const. Co., 2 Cir., 163 F. 2d 383, 386; Rituh et al, v. Puget Sound: Bridge & Dredging Co., Inc., 9 Cir., 156 F. 2d 334, 337; Archer v. Brown, 5 Cir, 241 ‘F,. od 663, 668; Chambers Const. Co. v. Mitchell, 8 Cir., 233 F. 24 117, 723; Mitchell v. Vollmer & Co., | 248 U. S. 427. There is, however, no clean-cut holding | that the work of employees of independent architects, uals ns ana -Dekore: ‘asin Site: enge, is ih cnace ceed under the Act. : : \ , ‘ , : i It may be that the activities of the employees in _ question constitute an indispensable link in the chain \ \. of causation whereby instrumentalities of commerce . are extended or improved; but’ it does not follow Bp ener their work is so closely. connected with interstate as to be a part of it. In determining the the character of the work of the employees | rather than the occupation’ of the employer is the factor, but the oceupation of the-employer eless. ‘be taken: into consideration, for the doe not attempt to repute local activity. This BT, which we sided oi thaueuna it was - that the mainte- 5 Poa alge | ‘nanee employees of a building owned and chiefly used. for cetitral offices by an interstate producer were _within the regulated area as persons engaged in an oceupation necessary to the production of goods for _ Commerce; but in the second case it was held that PR erm pein cig ene ae eo owe > Sicseiaieds oh tm aie ion from heniaehastoie sufficient sept e ay; nature \ of their activities in the record in this case as-to Satie tee enn at en ee: ot i : Affirmed: NS vanilla. ee . Filed poe Entered N ovember 25, 1957. __ United States Court of Appeals for-the Fourth | | Cireuit No. 7488. Jock P, ‘ieitiaec SECRETARY OF Ligon’ UNITED. States DEPARTMENT OF Lasor, siamese v. i gecalst i LUBLIN, McGavany AND ASSOCIATES, A CO-PARTNER- - SHIP, ND! ALFRep M. Lusiin; Joun B. McGavaxy, Wuuam T. McMnian AND WItLIAM MARSHALL, Jz., INDIVDYALLY AND Dore BUSINESS AS LoBLIn, =: MoGavany AND ASSOCIATES, APPELLEES — _ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR ‘THE BASTERN DISTRICT OF VIRGINIA This cause Garis on to be heard.on the'record from the United States District Court for the Eastern Dis- trict of Virginia, and was argued by counsel. . On considerati s whereof, it is now here divdiaredl and adjudged by this Court that the order of the said ’ District Court appealed from, in this cause, be, — the same is weil affirmed. a | Morris A Soper, ae Hee ako: United States Circut Tadge. | Noveamnen 25, 1957. ) | APPENDIX B oi Risiponnsaree’ PROJECTS FOR IMPROVEMENT, REPAIR OR ENLARGEMENT OF a ENSTRUMENTALEITES OR Factnrrtes | 1, AIRFIELDS AND AIRPLANE FACILITIES ‘Widening. streets on a naval operating bas? in the . vicinity of the. base motorpool and post exchange, and . extending and. paving plane taxiways and, parking aprons at the Naval Air Station installation at Oceana, Virginia, which is a naval jet base and part of the East Coast defense system for, intereepting enemy aircraft (Stip. R. 16a; Job No. 928, R. 25a). _, Replacing paving between hateare at the Naval Air Station at Norfolk, Virginia (Stip. R. 16a; Job No. , 881, R. 22a). It was agreed at the trial that the Navy airplanes using both these facilities, regularly fly across State lines (R. 84a). Repair and alterations of hangars at the Naval Air | Station at Oceania, Virginia ‘(a naval jet air base, part of the East Coast defense system for intercepting enemy aircraft) (Jobs Nos. 892, 892-1; Stip. R. 16a, 22a, 23a); the Naval Air Station in Washington, D.C. (Job No. 963, R. 29a, repairs to three hangars) ; ' and the Naval Air Station at Norfolk, Virginia (Job No. 901, R. 23a) (alterations to Hangarg LP4 and _ -LP14);. advance planning for runway -extension, ' Byrd Field (Job No. 822, R. 20a) ; advance planning | ‘Norfa for pneumatic test facility, Naval Air Station, — — (Job No. 921, R. 25a) ; estimates for (45) > 46 | Pinceastle Air. Force Base, Florida (J ob No. @:% 21a) ; pile test, Langley Field, Virginia (Job 0. 835, _ R. 21a); estimates for Beaufort, South Carolina, Air. field (Job No. 882, R. 22a) ; advance planning, Naval . Air Station, Norfolk, Virginia (Job No. 748, R. 18a) and work relating to Patuxent Air Station, Mary-. land ae No. 869, R. 22a’) . 2. SHIPYARDS ‘Recabe. to buildings located at the » United States - BiG Navy. Ship Yard, Portsmouth, Virginia (Job No. 948, R. 28a—repairs to 10 buildings, and Job No. 952, R, 28a—r to buildings) and other projects ( obs Nog. 858 and 903; : R. 21a, 23a) ; repairs to Pier 12, Naval ting Base, Norfolk, Virginia (Job ‘No. 965, R. ); and work relating to the machine shops and administrative buildings at, the ‘Norfolk Navy Yard and Norfolk Naval Base, Nor- folk, Virginia (Stip. R. 16a; Job No, 920, B. 25a). - 3. RADIO AND TELEVISION ‘PACILITIES | Relocation of the Coast Guard Radio. Station at Oceana, Virginia: (Job Nos. 785, 917, R.. 19a, 24a). Making ‘the necessary site examination and prepaiing' the advance planning report for relocating the Coast Guard Radio Station at Oceana, Virginia, which is a . part of the Oceana Naval Air facility. When the ‘mouth, beau sts No. ™, sas Ma). new ’station is completed, the old station will be abandoned. A letter. of intent to proceed with the - final plan and specifications for this project has been — Treceived by appellees from the Navy (R. 69a-70a). Work relating to television station WAVY, Ports- » oe ee 4, "TURNPIKE AND ROAD IMPROVEMENTS, BUS TERMINAL REPLACEMENT AND WATER AND SEWER UTILITIES Road improvements, Oceana, Virginia (Job No. 911, _ R. 24a); Richmond Turnpike (Job No. 814, R. 20a) ; | Old Dominion Turnpike Authority (Job No. 847, R. _» 21a); road survey, Columbia, North Carolina (Job . No. 788, R. 19a). Replacement of the Trailways Bus Terminal i in Washington, D..C. ¢R. 90a). Numerous water and sewer designs for the Washington Sanitary Commission (Job Nos. 898, 893-1 through 893-3, 939, _ 939-1 through 939-24; R. is 26a-27a). a G. S. GOVERNMENT PRINTING OFFICE: 1983 R --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0107%3A2. Public record. Not legal advice.