Petition for Writ of Certiorari — Goldberg v. Wade Lahar Construction Co. (No. 359)

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JAMES R. BRONING Cink t

No.e 3G

Jn the Supreme Court of the United States

OcToBER TERM, 1961

ARTHUR J. GOLDBERG, SECRETARY OF LaBor, UNITED

STATES DEPARTMENT OF JLABOR, PETITIONER

WabDE LaHaR CONSTRUCTION Co.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

ARCHIBALD COX,

Solicitor General,

Department of Justice,

Washington 25, D.C.

CHARLES DONAHUE,

Solicitor,

BESSIE MARGOLIN,

Assistant Solicitor,

BEATE BLOCH,

Attorney,

Department of Labor,

Washington 25, D.C.

INDEX

Opinions below - Binge

Jurisdiction _ - ; ihe

Questions presented __.

Statute involved. -

Statement. - - @

Reasons for granting the writ—- - -

Conc.usion..2 _ . ay

Appendix.

CITATIONS

Cases:

Archer v. Brown & Root, Inc., 241 VF. 2d 663,

certiorari denied, 355 U.S. 825... _ _--

Ariza v. California, 283 U.S. 423... .-_--

Ausiford vy. Goldberg, decided June 29, 1961,

15 WH Cases 135_-- oT a eae

Bennelt v. Loftis Co.. 167 I. 2d 286. _._-__-

Berman v. Parker, 348 U.S. 26---- cae

Bodden v. McCormick Shipping Corp., 188 F.

DN er ee eine een ose

Compania de Ingenicros y Contratistas, Inc. v.

(roldberg; Quilichini v. Goldberg, 289 F. 2d 78.

Crook v. Bryont, 265 ¥. 2d 541_---.----

Davis v. United a - F. 2d 938, cert:orari

Gee, Bee we. Gee. «..--..-.-..,..-.-.

Emulsi fied Asphalt eau Co. v. =a

aga ©. 2a Sis... ...- .-- Be.

Goldberg v. Nolla, Galib & Cia.; “Goldberg Vv.

Five Roro, decided June 15, 1961, 15 WH

RC Re re wea kek Rane

6057 °3 61 ----1 ip a)

Cases—Continued

Goldberg v. Owen, decided June 30,1961,15 WIL page

Cases 139_. 1]

Kirschbaum Co. v. Walling, 316 U.S. 517 13

Mitchell v. Hooper Equipment Co., 270 F. 2d

893 _ - - . 1]

Mitchell v. Lublin, McGaughy & Asso., 358

ag ig Waa 12

Mitch-"l v. Vollmer, 349 U.S. 427. ise... PTZ

Mitchell v. Zachry Co., 362 U.S. 310. 11, 12,13

North Shore Corp. v. Barnett, 143 P. 2d 172 20

Oklahoma v. Atkinson Co., 313 U.S. 308. 16

Overstreet v. North Shore Corp.,318 U.S. 125. 11-12, 20

Powell v. U.S. Cartridge Co., 339 U.S. 497- 19-20

Schmidt v. Peoples Telephone Union of Mary-

Oe es ee ee Be 21

10 East 40th St. v. Callus, 325 U.S. 578 _ _-. 13.

Tobin v. Pennington-Winter Construction Co.,

198 F. 2d 334, certiorari denied, 345 U.S.

MiG ay eeuames Otsu cee oe 14, 16, 17

United States v. Appalachian Power Co., 311

U.S. 377.. oe 16

United States v. ¢ ‘ommodore Park, 324 US

eee owe Noreen Gee way aes 5 16.

United States v. Twin City Power Co., 350 U.S

BR t eee a! gla owe wet 16.

Walling v. Jacksonville Paper Co., 317 U. S.

rg LE a es cine ee Re een 11

Statutes:

Fair Labor Standards Act of 1938, c. 676, 52

Stat. 1060, as amended by the Fair Labor

Standards Amendments of 1949, c. 736,

63 Stat. 910, 29 U.S.C. 201, et seq.:

ee eo hwo ow ARES es . 3,12, 19

lS a a a. a6 os al gi”. ease ae Wak 3.

ee Se as sta kere laa tae aae 3

ene eee 4

|. PRE ES ee re re 4

III

Statutes—Con tinued

Flood Control Act of 1941, 55 Stat. 638_.---

23 U.S.C. 319. - :

Watershed Protection and Flood Prevention

Act of 1954, 68 Stat. 666... -

Miscellaneous:

Annual Report of the Chief of Engineers, U.S.

Army, on Civil Works Activities, 1959,

House Document No. 244, 86th Cong., 2d

ia ne hg ne er aie ie ae si

Heuse Document Né, 917, 76th Cong., 3d

ma]

Gn the Supreme Court of the Tnited States

OcToBER TERM, 1961

No. —

ARTHUR J. GOLDBERG, SECRETARY OF LABOR, UNITED

SrTaTeS DEPARTMENT OF LABOR, PETITIONER

Wape LAHAR Constreection Co.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHT CIRCUIT

The Solicitor General, on behalf of the Secretary of

Labor, “prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the Eighth Circuit, entered in the above case on

April 13, 1961.

OPINIONS BELOW

The opinion of the District Court is reported at 179

F. Supp. 551. The opinion of the Court of Appeais

(App. tnfra, pp. 23-44) is reported at 290 F. 2d 408.

JURISDICTION

The judgment of the Court of Appeals was entered

vn April 13, 1961. On July 6, 1961, the time for peti-

tioning for a writ of certiorari was extended by order

of Mr. Justice Whitaker to August 26, 1961. The ju-

(1)

risdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

Respondent’s employees have been engaged in reser-

voir clearance work performed in connection with a

multi-purpose dam and reservoir project (the Table

Rock Project on the White River in Missouri and

Arkansas), authorized by Congress under its power to

regulate commerce. The Table Rock Project was de-

signed as part of a comprehensive plan for coordi-

nated development of the water resouress of the

White River Basin for purposes of navigation, flood

contro}, electric power, recreation and other beneficial

uses. Respondent’s work, like the other activities at

Table Rock, was paid for out of project appropria-

tions and supervised by the United States Army

Corps of Engineers.

The Table Rock reservoir forms a lake extending

into the States of Arkansas and Missouri, and re-

spondent’s clearance work extended into both States.

A principal reason for the particular clearance plan

adopted by the Army Engineers was to improve the

navigability of the lake for the passage of boats—

generally recreational craft.

The questions presented are:

1. In aetermining whether employees were engaged

‘in’ commerce’? under the Fair Labor Standards

Act, should the reservoir clearance be regarded as an

integral element of the comprehensive interstate river

project cr as a separate local activity.

2. Whether, even if viewed as a discrete segment

of the project, the work of clearing land for the reser-

voir was employment “in commerce” by reason of the

fact that one of its principal j»urposes was to impreve

the navigability of the interstate lake.

STATUTE INVOLVED

This ease arises under the Fair Labor Standards

Act of 1938, ¢. 676, 52 Stat. 1060, as amended by the

Fair Labor Standards Amendments of 1949, ¢. 736,

63 Stat. 910, 29 U.S.C. 201, ef seq., the pertinent. pro-

visions of which are:

See. 3. As used in this Aet—

* * * * =

(b) “Commerce”? means trade, commerce,

transportation, transmission, or communication

among the several States or between any State

and any place outside thereof,

* * * * *

Sec. 6. (a) Every employer shall pay to each

of his employees who is engaged in commerce

or in the production of goods for commerce

wages at the following rates—

(1) not less than $1 an hour;

* * * * *

Sec. 7. (a) Except as otherwise provided in

this seetion, no employer shall employ any of

his employees who is engaged in commerce or

in the production of goods for commerce for

a workweek lonzer than forty hours, unless such

employee receives compensation for his employ-

ment in excess of the hours above specified at a

rate not less than one and one-half times the

regular rate at which he is employed.

STATEMENT

These proceedings were brought by the Secretary

of Labor’ under Sections 17 and 16(c) of the Fair

Labor Standards Act, to enjoin respondent from

violating the Act’s minimum wage, overtime, and

record-keeping requirements, and to recover unpaid

minimum wages and unpaid overtime competsation

due named employees. Respondent contracted with

the Corps of Engineers to perform, at a total cost of

more than $1,500,000, clearance work in the reservoir

of the Table Rock Project. The employees in question

were engaged in this work.

Construction of Table Rock Dam and Reservoir was

authorized by the Flood Control Act of 1941 (55 Stat.

638, 645), on the basis of the detailed reports and

recommendations appearing in House Document No.

917, 76th Congress, 3d Session, as part of a compre-

hensive plan previously approved for the development

of the water resources of the White River Basin.’

The White River, which has been the subject. of

navigational improvement projects by the Federal

Government since 1892,* is considered navigable down-

stream from Branson, Missouri, whence it flows

through Arkansas, and empties into the Mississippi

River. There is no dispute that the purposes of the

‘Secretary Goldberg was substituted for former Secretary

Mitchell by order of the Court of Appeals, dated April 3, 1961.

*The Table Rock Project. was completed in 1959. The Nor-

fork and Bull Shoals Projects had been completed in 1943 and

1952, respectively. The Beaver Project is currently under

construction.

* House Document No. 917, supra, pp. 16, 37. This House

Document is hereafter cited as HD.

Table Rock Project included improvement of inter-

state navigational polentialities, interstate flood cen-

trol benefits and the development of hydroelectric

power for interstate markets.*. The Federal Power

Commission endorsed the construction project upon

the basis of studies which showed ‘that multiple-

purpose reservoirs at the Table Rock and Bull Shoals

sites, primarily for the control of floods, would have

a substantial beneficial effeet upon navigation’? (HD,

p. 4). It was contemplated that “[o]wing to the regu-

lated and inereased low flow in the river below the

dams, navigation conditions would be improved in

White River and to a lesser degree in the Mississippi

River downstream from the mouth of White River’

(HD, p. 48). In addition to the navigation, tlood eon-

trol, and power contributions to be made by the pro-

posed project, it was anticipated that recreational and

wildlife benefits would be provided by the dam’s large

reservoir which extends into both Arkansas” and

Missouri, covering portions of Carroll and Boone

Counties in Arkansas, and Barry, Stone, and Taney

Counties in Missouri (HD, pp. 15, 48).

Respondent, an Arkansas corporation, is one of the

largest) eoncerns engaged in” reservoir clearance

throughout the United States (its president, Mr.

Lahar, having been engaged in clearing work under

‘Tt was contemplated that the flood control benefits of the

Table Rock Project and a conipanion project on the White

River, the Bull Shoals Project, would accrue to Missouri,

Mississippi, and Louisiana as well as Arkansas. ‘The market

for power from these two dams Jay in Arkansas and Missouri.

(11D, p. 49).

605793 61 - 2

contracts with the Corps of Engineers for over 30

years, R. 56). Respondent has performed 56 clear-

ance jobs since its incorporation in 1952 (R. 51-52).

The two contracts here involved covered the entire

clearing operation performed for the Table Rock

Project, except at the dam site itself (R. 40-43, 46,

49), and provided for clearing in selected areas

throughout the reservoir (in both Missouri and

Arkansas). In some areas clearance included all tim-

ber growing out of the ground between elevation 915

and either elevation 874 or 840 (the clearing to the

lower level in the public use areas). In other places

modified clearing was effected by removing or topping

only those trees that projected above the stated eleva-

tion. In still other areas, there was no clearing. Only

one side of the stream was cleared at each location.

In all, respondent’s clearing operations covered 12,700.

acres, including about 122 miles of shoreline in the

reservoir (R. 42-46).

It was the Secretary’s position that the Fair Labor

Standards Act applied to ‘‘the project as a whole’’—

including the reservoir clearance—because of “the

over-all purpose of the project’ (R. 18). The gov-

ernment called as a witness the Corps of Engineers

official under whose supervision the Table Rock reser-

voir clearing plan had been prepared—J. C. Pyle,

Chief of the Hydraulic Branch of the Engineering

Department, Little Rock District (R. 22). Mr. Pyle,

on direct examination, explained that the clearing

design was prepared as a part of ‘‘the overall proj-

ect’’ and that the work was paid for out of appro-

priations provided by Congress for the general cost

of construction of the project; there was, he said,

‘‘no such thing as an allocation for recreation’’ (R.

22-23).

Mr. Pyle’s testimony also made clear the extreme

difficulty of attributing only a single purpose to a

clearing operation which, it was hoped, might be

beneficial in a number of ways to the comprehensive

plan for the control and development of the White

River. He described the purposes of reservoir clear-

ance (R. 23):

Clearing of the reservoir is desirable to the

extent that it aids in control of the malaria and

encephalitis vectors, reduces the hazard to boat-

ing, improves fish and wildlife conditions, adds

to the general appearance and recreational value

of the lake, and reduces the maintenance prob-

lems caused by floatage and possible interfer-

ence with the outlet works.

Mr. Pyle acknowledged that the primary reasons for

the clearing in question were ‘*to promote the passage

of boats”? (R. 23) and ‘to control mosquitoes”’ (R.

39), but he also insisted that one of the objectives he

had in mind in the preparation of the clearing design

memorandum was the removal of ‘*tlotable material

which would tend to damage the dam’’ (R. 29) and

thereby interfere with its navigational, power, and

flood control functions. He specifically denied that

none of this clearance work would have been under-

taken but for the recreational purposes, “because there

are quite a few people in the Corps that feei that some

clearing is needed’’ (R. 34-35).

*On cross-examination, Mr. Pyle was questioned as to the

foliowing: changes in the “thinking” and “policy” of the Corps

Respondent’s president, Wade Lahar, and its proj-

ect engineer, Hilton Keen, testified that it was their

opinion that the modified clearing performed at Table

Rock was done solely for recreational purposes,

health benefits, boating, and to improve local prop-

erty values (R. 47-48, 58).

The trial court ruled that ‘“‘the clearing performed

by the defendant in the Table Rock Reservoir was not

a necessary part of the over-all project and served no

purpose in the protection or the operation of the

dam,”’ but was “‘strictly of a local nature,’’ and there-

fore, ‘‘must be considered isolated local activity’’ out-

side the scope of the Fair Labor Standards Act (179

F. Supp. 551, at 560). The Court of Appeals af-

firmed this conclusion. It also rejected the govern-

ment’s alternative basis of coverage—that a specific

of Engineers on the “concept of clearing reservoirs” (R. 26) ;

the necessity or desirability of “any clearing from the stand-

point of flood control, navigation or hydroelectric power” (R.

28); whether clearing in particular areas was designed with

“the objectives * * * to take out floatable material that would

tend to damage the dam” (R. 28-29); whether selection of

other areas for clearance would not have been more effective if

that had been an “objective in mind” (R. 29-31); how clearance

at particular points might be expected to protect the penstock

openings or spillway gates of the dam from floatage of debris

(R. 32-35).

Mr. Pyle’s testimony was that “there has been a general

change in thinking all the way along, a gradual change”-—that

although “formerly they felt they would need to clear the whole

lake”, they now fe't that it “is not necessary to clear nearly

that much” (R. 26, 35). He further stated that there was a

difference of opinion among the different offices of the Corps

of Engineers as tothe adequacy of the small clearing plan from

the flood-control, power standpoint (R. 27), and reaffirmed his

view that the clearance plan actually adopted was designed

“for a number of purposes” including consideration of “the need

of preventing drift to collect at the dam” (R. 28, 29).

purpose of the clearance work was to improve the

navigability of the interstate reservoir—regarding

this as “only an incidental circumstance” insufficient

to bring the elearance within the scope of the statu-

tory phrase, “engaged in commerce” (App. tnfra,

pp. 42-43; 179 F. Supp. at 561).

REASONS FOR GRANTING THE WRIT

Review of the decision below is warranted on two

grounds.

First, the Eighth Circuit has adopted an approach

which fragmentizes work performed on integrated

projects in interstate commeree—one which, if e¢on-

sistently followed, would remove large numbers of

employees from the coverage of the Fair Labor Stand-

ards Act. Four other circuits have reached a contrary

conclusion on essentially similar facts by viewing

such projects as a whole. The latter cases, we be-

lieve, are in keeping with prior decisions of this

Court and serve to carry out the purposes of the Act

in a practical and predictable manner.

Secondly, the court below erred in rejecting the al-

ternative basis of coverage. Even if the reservoir

clearance work in question is viewed apart from the

project to which it is related, it improves navigation

on an interstate lake. In this aspect, the instant case

vunflicts with the numerous decisions of this and other

courts holding that improvement of an_ interstate

highway or waterway is engagement ‘‘in commerce.”

As both courts below recognized, the Table Rock

Dam and Reservoir Project—which is the sole basis

and justification for undertaking the reservoir clear-

ance work here involved at federal expense and under

the supervision of the Army Corps of Engineers—

was authorized by Congress and designed as part of

a comprehensive national plan for development of

the White River Basin in Missouri and Arkansas.

The project had multiple purposes—aid to navigation

on the lower White and Mississippi Rivers, flood ¢con-

trol, power, and other beneficial uses. It is also clear

that the reservoir, as well as the dam, serves *‘com-

meree”’ funetions; in particular it. aids interstate

navigation and flood control. Under this Court’s

precedents, plainly construction work for the improve-

ment of interstate transportation facilities (ineluding

rivers and waterways) is “in ecommerce” for purposes

of the Fair Labor Standards Act. See Mitchell v.

Vollmer, 349 U.S. 427, and eases there cited.

Respondent’s employees were engaged in one aspect

of the comprehensive Table Rock project—the clear-

ing of the reservoir. Only on the basis of a piecemeal!

approach, isolating a particular type of work within

the reservoir and appraising separately the need, wis-

dom, and effect of this single aspect of the integrated

project, could the court below decide that respondent's

cmployees were not also engaged ‘tin’ commerce’’.

The government believes that certiorari should be

granted because this approach to work on a federally

authorized project in interstate commerce is incon-

sistent with the decisions of this Court; is at variance

with results reached by four other courts of appeals;

threatens to impose upon private parties and the

courts an unmanageable burden—that of evaluating

engineering, economic, and other data to determine

how neeessary or desirable is each aspect of a compre-

hensive project; and potentially affects large numbers

of employees who work on such projects,

1. The court below has failed to give effect to the

distinction between the ‘tin’ commerce’ and the

“related to the production’? of goods for commerce

provisions of the Fair Labor Standards Act which this

Court repeated as recently as Mitchell v. Zachry Co.,

302, U.S. 310." As there stated, the ‘tin commerce”

coverage of the Act has been construed “by the courts

in conformity with the statutory scheme, so as to dis-

place state regulation ‘throughout the farthest reaches

of the channels of interstate commerce.’ 7’ Mitchell v.

Zachry Co, 302 US. at 320, quoting from Walling v.

Jacksonville Paper Co., 317 U.S. 564, 567; see, also,

Overstreet ve. North Shore Corp., 318 US. 125, 128.

*The Zachry opinion expressly noted, at the outset, that the

dam there was “not a multi-purpose project” (362° U.S. at

$10), and emphasized that the issue before the Court concerned

only the “related-to- production” clause of Seetion 3(¢j) dealing

with the “periphery of coverage” of “activities only ‘related’ to

production” (44. at 316-317): it carefully distinguished deci-

sions involving the “in commerce” phase of coverage (/d. at

S20). And, contrary to the assumption by the court below that

the 149 Amendments evidenced a general “legislitive tendency

** * in the direction of limiting the broad interpretations

Which the courts have given the statute” (App. énfra. p. 42),

any such mference with respeet to the judicial interpretation of

the “in commerce” aspect was directly contradicted by Zachry

(see text, saprr). In contrast to the Eighth Cireuit: in’ the

instant case, the Fifth and Sixth Cireuit Courts of Appeals

have refused to draw that inference from Zachry. Mitchell vy.

Hooper Equipment Co., 279 F. 2d 893 (CLA. 5): Goldberg v.

Oriren (CLA. 6) 15 WHEE Cases 139 (decided June 30, 1961, not

vet officially reported ).

Contrary to the ‘implications’? found by the court

below (App., infra, p. 38), this Court, in Zachry, ex-

pressly recognized that Congress, by the 1949 Amend-

ments, “did not alter’’ or in any way limit the prior

broad judicial construction of the Act’s ‘fin com-

merce’’ coverage (362 U.S. at 316-317).’ That cover-

age must still be ‘‘construed liberally to apply to the

furthest reaches consistent with congressional direc-

tion’? (Mitchell v. Lublin, McGaughy & Asso., 358 U.S.

207, 211; Mitchell v. Vollmer, 349 U.S. at 429).

In this light, it is plain that the clearing operation

undertaken by respondent's employees was well within

‘the furthest reaches consistent with congressional

direction,’’ whether this standard be regarded from

the point of view of substantiality of the connection

of the operation with interstate commerce or from the

standpoint of respect for state control of essentially

local enterprise. The clearing operation was an integ-

ral part of a single construction project which was

indisputably ‘tin commerce’’, The work in ques-

tion took place at the very site of the construction of

an interstate facility, was regarded by Congress as an

integral part of that construction, and was puid for

out of appropriations for the general cost of eonstrue-

tion of the one project. The precise plans were drawn

and the operation was supervised by the Army Corps

"Indeed, the 1949 Amendments, far from imposing any

restrictions on the “in commerce™ coverage, made one change ;

that modification broadened coverage so as to include commerce

“between any State and any place outside thereof”, replacing

the previous language “from any State to any place outside

thereof” (emphasis added).

of Engineers as part of the Table Rock Dam construc-

tion project.

The decision below is, indeed, at odds with prin-

ciples expressed in the very cases upon which the court

below relied, t.e., Zachry, supra, and 10 East 40th St.

v. Callus, 325 U.S. 578. Clearing the reservoir of a

federal multi-purpose river project, at federal expense

and wader federal supervision, on property owned and

to be uperated by the United States for natiotial pur-

poses certainly does not ‘‘spontaneously satisf[y] the

common understanding of what 1s local business’’; nor

does it otherwise fit the description of ‘local business’’ :

or “essentially local activities that Congress did not

see fit to take over by legislation’? (see Callus, 325

U.S. at 582-583; Zuchry, 362 U.S. at 314). Regu-

lation of the work involved in this case, far from being

representative of “‘historic functions of the individual

States’? (see Kirschbaum Co. v. Walling, 316 U.S. 517,

520), is peculiarly a matter ‘‘of traditionally national

eoneern’’ (see Zachry, 362 U.S. at 316). There is thus

no possible warrant for excluding the activity from

the broad remedial purposes of the Act in order to ac-

commodate “the competing concern of Congress to

avoid undue displacement of state regulation of

activities of a domimantly local character’’ (¢bed.).

2. In considering the status of employees working

on some single aspect of an integrated project in in-

terstate commerce, four other courts of appeals have

taken the position that, in determining this Act's cov-

erage of employment on projects of this type (inelud-

ing river, highway, airfield, radio communication and

605793 61

other comparable projects), ‘‘the whole project * * *

should be regarded as an entirety, and not broken

down into its component parts.” Goldberg v. Nolla,

Galib & Cia. and Goldberg v. Five Boro (C.A. 1), de-

cided June 15, 1961 (not yet officially reported), 15

WH Cases 145, 147 (construction of technical build-

ings and supporting facilities for one of the Army Sig-

nal Corps’ radio relay centers) ; Bennett v. Loftts Co.,

167 F. 2d 286, 288 (C.A. 4); Archer v. Brown & Root,

Inc., 241 F. 2d 663, 668-669 (C.A. 5), certiorari de-

nied, 355 U.S. 825; Tobin v. Pennington-Winter Con-

struction Co., 198 F. 2d 334 (C.A. 10), certiorari

denied, 345 U.S. 915. As stated by the Fourth Cir-

cuit over a decade ago (in upholding the Act’s cover-

age of a watchman guarding the construction of a new

highway bridge): “If the declared purpose of the Act

is to be accomplished, a project should be considered

as a whole, in a realistic way; not broken down into

its various phases so as to defeat the purpose of the

Act’? (Bennett v. Loftis Co., 167 F. 2d at 288). In

approach and in principle, these cases conflict with

the decision below.

3. The piecemeal approach will involve the courts,

we believe, in an effort to evaluate factors which they

are ill equipped to determine—matters which involve

essentially legislative or executive judgments. There

are frequent controversies, both in Congress and

within the executive establishment, as to how exten-

sive a project should be undertaken and as to the

manner of its execution. Should a navigation project

be narrowly confined or should it be broadly conceived

to serve incidental purposes, such as (for example)

the production of power and the advancement of rec-

reational opportunities? Should a project be ex-

ecuted in Spartan fashion, in the interest cof rigid

economy, oc should it be carried out in a manner

which will satisfy other values, including, perhaps,

aesthetic sensibilities? Is a particular aspect of a

project a worthwhile addition or a needless frill? In

planning an interstate highway, should efforts be made

to }indseape the borders of the road as well as pro-

vide a means of surface transportation? If a reser-

voir is needed as an adjunct of a dam, should steps be

taken, at the same time, to make it a highly useful and

attractive reservoir—a haven for wildlife, a place of

recreation, an area free of insect infestation? Ques-

tions of this kind involve, among other things, con-

siderations of cost and of political expediency. Also,

they involve innumerable subsidiary problems as to

which expert planners, engineers and technicians will

often differ. We submit that the courts should not be

called upon to review the myriad judgments involved

in the planning and execution of a comprehensive

project. If the reviewing court is satisfied that the

overall project is ‘in commerce”, it should suffice that

the particular work which gives rise to the question

of coverage is a part of the project or ancillary to it.

The evidence in the present recond of differences

in engineering opinion as to the neéd and extent of

clearance for purposes of protecting the dam (R.

34-36), of the “several plans’’ considered by the

engineers before selection of the one adopted for ‘a

multiple reason’? (pp. 26-29), and of the ‘‘ehange in

engineering attitudes in the intervening vears * * *

as to the non-necessity of clearance in projects of this

kind’’ (see App. infra, p. 43), reflects precisely the

“complexity of engineering data’, the “contrariety

of views”? and the “questions of policy’’ which, as

this Court has emphasized in other contexts, are not

generally within the competence of courts to assay.’

It is suggestive to compare the instant case with

Tobin v. Pennington-Winter Construction Co., 198 F.

2d 334 (C.A. 10), a case which also involved reservoir

clearance and can be distinguished only if each re-

viewing court is to pass judgment on a complexity

of engineering data and policy considerations as to

the need, effectiveness, and desirability of each par-

ticular segment of a multi-purpose river project.” In

Pennington-Winter, after concluding that construc-

tion of the multi-purpose dam (on a non-navigable

tributary of the Arkansas River) was within the cov-

erage of the Act because ‘‘[t]he construction of levees,

dams and other improvements * * * for the purpose

of aiding navigation and preventing floods, must be

considered as items of a single project undertaken to

effectuate such purposes” (198 F. 2d at 337), the

court of appeals held that the reservoir clearance

work for the project was also covered, reversing the

* See, «.g., United States v. Twin City Power Co., 350 US.

222, 224; United States v. Commodore Park, 324 U.S. 386:

Oklahema v. Atkinson Co., 313 U.S. 508, 522, 527-528: T'’nited

States v. Appalachian Power Co., 311 U.S. 377, 426. Cf. Ber-

man Vv. Parker, 348 U.S. 26, 33-36.

*The Government did not oppose certiorari in Pennington-

Winter because it involved “an important question as to the

application of the Act which has not specifically been deter-

mined by this Court * * *” (see Memorandum for the Re-

spondent, pp. 8-9, No. 380, Oct. Term, 1952).

trial court’s ruling that the clearance work was not

covered because primarily related to recreational ac-

tivities. The differing results in these two closely

similar cases emphasize the need for review by this

Court.

4. The question presented by this case is of sub-

stantial importance not only with respect to multi-

purpose river development projects, but in the entire

area of federal projects for the development or im-

provement of interstate facilities.

The impact of the decision below on river projects

alone is considerable. The Corps of Engineers has,

since March 1953 (the date of denial of certiorari in

Pennington-Winter), undertaken 130 federally

finarzed multi-purpose river projects, all of which,

we are ‘nformed, have included substantial reservoir

clearance. Thirty-five such projects are currently

under construction, and the estimated reservoir clear-

ance costs total over $31,000,000.° In addition,

by the U.S. Army Corps of Engineers, Civil Works, compiled

from the 1959 Annual Report, House Document No. 244, and

supplementary current information. The projects are in vari-

ous stages of construction so that the estimated costs range

from those fairly firm to those preliminary and subject to

change. A list of projects in the planning and construction

stage, with their purposes, is found in S. Rept. No. 1768, 86th

Cong., 2d Sess., p. 7, et seq.

While estimates of the number of employees involved are

not available, some indication of the substantial number in-

volved appear. from the fact that the work in the instant

case required 119 employees, working considerable overtime

(Rt. 56), under contracts totalling 144 million dollars; and in

the Pennington-Winter case (supra, p. 16), about 100 em-

ployees (also working substantial overtime) were employed

under a contract for $698,360.

numerous multi-purpose dam and reservoir projects

are being carried out under the jurisdiction of the

Bureau of Reclamation and the Agriculture Soil Con-

servation Service.”

As to other‘types of federal projects which may

be affected, it suffices to point to the extensive fed-

eral highway construction program, which makes

provision for roadside and landscape development,

t.e., beautification, scenic overlooks, recreational and

rest areas, ete.” The coverage of all this work is

affected by the decision below.

"Information from the Bureau of Reclamation (U.S. De-

partment of the Interior) indicates that over 75° of the 54

federally-financed dam and reservoir projects constructed under

the jurisdiction of the Bureau since Mareh 1953 have included

reservoir clearance, and at least 14 such projects are currently

under const suction.

Information from the Director of the Water-Shed Planning

Division, Soii Conservation Service (U.S. Department of Agri-

enlture), indicates that clearing was required in each reservoir

of 304 multi-purpose water-shed projects (averaging seven

reservoirs per project) completed or under construction since

1954 with federal grants furnished by the Soil Conservation

Service, as authorized by the Watershed Protection and Flood

Prevention Act of 1954.

In the federal-aid highway system, proviston is specifically

made for “roadside and landseape development.” inclnding the

purchase of adjacent strips of iand “for the preservation of the

natural beauty through which highways are constructed” (23

Us.C. 519). The Office of Engineering in the Bureau of

Public Roads (U.S. Department of Commerce) advises that

during 1960 between 5.000 and 7.500 estimated man-vears of

highway construction labor were used in roadside improvements

outside the paved area, including beautification work, erosion

control, planting, setting up recreational and rest areas, ete.

Even if the reservoir clearance could be isolated

from the other aspects of the project, the court below

departed from the controlling decisions of this Court

when it rejected the alternative basis of coverage

advanced by the Secretary: That the activity was ‘‘in

ecommerce” because a principal purpose and an un-

doubted consequence of the work was to improve the

navigability of an interstate lake.

The Gourt of Appeals did not question—quite the

contrary, it found—that the reservoir clearance Was

‘aleulated to improve the navigability of the jake

formed by the dam and reservoir. The court also took

note of the fact that the waters diverted to the lake

would eover portions of two states, Missouri and

Arkansas. It resisted the suggestion (which it de-

scribed as “‘tantalizine”) that these cireumstances

brought the case wituin the ‘Sin commerce” language

of the statute, apparently because it believed that

some distinction ought to be drawn as between naviga-

tion (or transportation) for don-cemmercial (recrea-

tional) and commercial (trade) purposes. But the

Act makes no such distinction. It defines commerce

(supra, p. 3) to include “trade, commerce, transpor-

tation, transmission, or communication among the

several States or between any State and any place out-

side thereof.” This. Court, moreover, has laid) the

question to rest. It has stated that “commerce’’, as

defined in the Act, ineludes ‘‘transportation as such,

* & &

and not merely shipments or transportation of

articles that are intended for sale, exchange or other

trading activities.’’ Powell v. U.S. Cartridge Co., 339

U.S. 497, 512.”

If, as we believe, it is immaterial that the interstate

lake will be used by recreational rather than commer-

cial craft, there can be no doubt that the Act applies.

Ceriainly, work on an interstate highway, whether it

he ar overland road or a waterway, is directly covered.

See, e.g., Overstreet v. North Shore Corp., 318 U.S.

125: Mitchel! v. Vollmer, 349 U.S. 427.

We point ont additionally that numerous decisions

of the courts of appeals have held that the Act reaches

activities related to the-improvement of transportation

facilities, even though those facilities are used pri-

marily for non-commercial reasons or for intrastate

(as opposed to interstate) purposes. E.g., North

Shore Corp. v. Barnett, 143 F. 2d 172, 174 (C.A. 5)—

a privately owned and operated toll road and bridge

located wholly within one county of Florida and serv-

ing primarilytocat trafie-to_and-from an island off

the coast, but also ‘‘open and available at all times for

interstate use’’ (mostly by tourists), held to be an in-

strumentality of :1terstate commerce *‘based upon the

fact of interstate use rather than upon the extent of

such use’’; Crook v. Bryant, 265 F. 2d 541, 543 (C.A.

Cf. Arizona v. California, 283 U.S. 423 at 454, fn. 5, noting

that a part of the Colorado River which the Boulder Dam

project would make “susceptible to use by power boats” was

a boundary stream, so that “such navigation will be at least

partially interstate’; Davis v. United States, 185 F. 2d 938

(C.A. 9), certiorari denied, 340 U.S. 932, holding that Lake

Tahoe, located in California and Nevada, is a navigable water-

way of the United States although it is used primarily by

sightseeing boats.

4)—*a limited access toll road * * * used by vehicles

traveling interstate, not by necessity but for conven-

lence only’’; Bodden v. McCormick Shipping Corp.,

188 F. 2d 773, 775 (C.A. 5)—a pleasure yacht held to

be “‘clearly an instrumentality of commerce * * *

even though such transportation was not in connec-

tion with a trade or business.’’ “

* See, also, Seliaidt ve Peoples Telephone Union of Mary-

ville, Mo., 138 F. 2d 13, 15 (C.A. 8)—telephone service for sub-

seriber-members of an association of farmers which was devoted

primarily to local calls (only « fraction of 1% of its revenue

being derived from the infrequent interstate calls) held inter-

state commerce because “continuous [interstate] service” was

“offered”: Emulsified Axphalt Products Co. vy. Mitchell, 222 F.

Yd 913, 914 (CLA. 6)—city, town and country streets and roads,

constructed primarily for local traffic, held to be interstate

instrumentalities because “used by persons and goods passing

between the various States”; Compania de Ingenieros y Contra-

tistas, Inc. v. Goldberg and Quilichini v. Goldberg, 289 F. 2d 78,

80 (C.A. 1)—construction of sections of secondary roads in

rural areas of Puerto Rico held covered !:cause “at least. some

agricultural products * * * from areas alongside and near

the roads” would be transported interstate “over other roads

which connect or would connect with the roads here involved”;

Austford v. Goldberg (C.A. 8) (decided June 29, 1961, not yet

officially reported), 15 WH Cases 135—maintenance of county

and township dirt and gravel roads, wholly within one rural

county of North Dakota, held covered because some agricultural

products were transported over them to connecting roads and

ultimately shipped interstate. 4

605793 — 61——-4

CONCLUSION

It is respectfully submitted that this petition for a

writ of certiorari should be granted.

ARCHIBALD Cox,

Solicitor General.

CHARLES DONAHUE,

Solicitor,

BEssIE MARGOLIN,

Assistant Solicitor,

BEaTE BLOcH,

Attorney,

Department of Labor.

Avucust 1961.

APPENDIX

In the United States Court of Appeals for the Eighth

Circuit

Nos. 16509 and 16510

ARTHUR J. GoLpBERG, SECRETARY OF LaABor, UNITED

STATES DEPARTMENT OF LABOR, APPELLANT

Wade LAHAR ConstrucTION CoMPANY, 4 CoRrorRATION,

APPELLEE

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF ARKANSAS

(April 13, 1961)

Before Van OosTERHOoUrT and Buackmun, Cireuit

Judges, and Reaister, District Judge

BrackmuN, Circuit Judge: These are companion

eases instituted by the Secretary of Labor under ‘17

and § 16(¢), respectively, of the Fair Labor Standards

Act of 1928, Chapter 676, 52 Stat. 1060, as amended,

now found as 29 USCA § 201 et seq." The complaint

in the first action alleges violations by the defendant

of the Aet’s minimum wage, maximum hours, and

record keeping provisions and demands injunctive

relief. The second action seeks compensation for 29

named employees of the defendant. The District

Court held that the emplovees were engaged neither

’ Subsequent references herein to the Act are to sections as

amended and as numbered in USCA,

(23)

‘‘in commerce” nor “in the production of goods for

commerce’”’ within the meaning of the Act. As a con-

sequence, it dismissed both complaints. 179 F. Supp.

551. The Secretary has appealed.

The pertinent facts are set forth with meticulous

detail in Judge Miller’s opinion below. They need

not be repeated at length here. We stress the follow-

ing:

1. The defendant is a general contractor which has

participated in reservoir clearing projects and other

similar work throughout the country. Its president

has been active in endeavors of this kind for the gov-

ernment since 1931.

2. Of the 29 employees here involved, only 3 are

concerned with both the wage and overtime provisions

of the statute. The remaining 26 are concerned only

with overtime. It is conceded that the Act’s over-

time requirements were not met.

3. The project is the Table Rock Dam and Reser-

voir on the White River. This stream rises in the

mountains of northwest Arkansas, flows northeasterly

215 miles into Missouri, and then flows southeasterly

back into Arkansas for a distance of 505 miles where

it empties into the Mississippi upstream from Arkan-

sas City. Table Rock Dam itself was completed in

1959 * and is situated in Taney County, Missouri, near

the town of Branson. The reservoir it creates ex-

tends its arms into Barry and Stone Counties, Mis-

souri, and into Boone and Carroll Counties, Arkansas.

4. The basic authority for the construction of the

Table Rock project is found in House Document No.

917, 76th Congress 3rd Session. This consists of re-

ports and recommendations transmitted in 1940 to the

? This does not render the injunction case moot. Chambers

Construction Company v. Mitchell, 8 Cir., 233 F. 2d 717, 725.

See Walling v. Helmerich & Payne, 323 U.S. 37, 43.

House Committee on Flood Control. The projects

recommended therein came to be authorized by the

Flood Control Act of 1941, 55 Stat. 638, 645, which re-

ferred to ‘‘the prosecution of the comprehensive plan

approved in the Act of June 28, 1938, for the White

River Basin in Missouri and Arkansas, including the

projects for flood control and other purposes recom-

mended by the Chief of Engineers in House Docu-

ment Numbered 917 * * *”. The plan admittedly

had as its primary purposes aid to navigation on the

lower White and Mississippi Rivers, flood control,

generation of electric power, and recreation.

5. The Table Rock project is the tnird in a series of

dams built on the White and its tributaries. The first

was the Norfork Dam and Reservoir in Arkansas com-

pleted in 1943. The second was the Bull Shoals Dam

and Reservoir, also in Arkansas, completed in 1952.

Both of these are downstream from Table Rock. The

fourth is to be upstream near Beaver, Arkansas. The

entire development of the White River Basin is under

the supervision of the Army Corps of Engineers.

6. The defendant obtained, as a result of bids, two

contracts for clearance on the Table Rock project.

The work proposal submitted by the Corps listed wage

scales to be paid and mentioned the Fight-Hour Law,

27 Stat. 340, as amended, now found as 40 USCA

¢ 321 et seq., and two other statutes. It made no ref-

erence to the Fair Labor Standards Act.

7. The defendant's clearance work involved certain

areas of the reservoir in both Arkarisas and Missouri

but specifically did nof involve the damsite itself. The

clearing for the dam's immediate area was performed

hy another contraetor.

8. The cost of the defendant's work was paid by the

government out of appropriations for the overall

project.

9. The reservoir has a series of ‘‘pools” located be-

tween elevations or contours. The normal level of the

water in the reservoir is at Elevation 915 and the

‘‘power pool” consists of the area between that eleva-

tion and the lower Elevation 846. The area between

Elevation 915 and 936 (or thereabouts) is the ‘‘flood

pool’? which will contain water only during periods of

flood. The entire reservoir up to 936 contains ap-

proximately 52,000 acres. 10,000 of these lie above

915.

10. Complete clearing of all timber was accom-

plished in certain areas from Elevation 915 down to

either 874 or 840 (the clearing to the lower of these

was in the public use-.areas). In certain other areas

only modified clearing was effected down to 874 or

840. This consisted of clearing, by removal or top-

ping, of only those trees which projected above the

stated elevation but most of the trees where this type

of clearing was performed were left standing. Trash

and brush were allowed to remain there. The prac-

tice was to clear only one side of the stream an¢ to

leave the opposite side totally uncleaved. In still

other areas, no clearing of any kind was effected

even though these locations were between the same

contour lines as the areas for clearance or modified

clearance. In the flood pool itself there was no clear-

ing. The defendant’s work, on both complete and

modified clearance, covered 12,700 acres and 122 miles

of a total of 857 miles of “shoreline’’.

The Seeretary’s position on appeal is that the

clearing work, being on a multiple purpose project

constructed with federal funds as a part of the eom-

prehensive development mrogram of the White River

Basin for the combined purposes of navigation im-

provement, flood control, power, and other beneficial

uses, “is in practical effect so integral a part of the

improvement of an interstate instrumentality as to

be ‘in commerce’ within the coverage’’ of the Act.

He cites as controlling the 1952 case of Tobin v.

_Pennington-Winter Const. Cv., 10 Cir.. 198 F. 2d 334

(cert. den. sub nom. Pennington-Winter Construction

Co. v. Durkin, 345 U.S. 915). He also refers to the

established propositions that the determination of need

for a particular government project is a matter of leg-

islative judgment and is not for the courts and that

the Congress under the commerce clause may con-

stitutionally reach the lesser aspects of a single pri-

mary project. He urges that the same ‘‘ practical real-

istic approach’”’ is applicable to coverage under the—

Act. He argues secondarily that the employees here

were engaged in improving the navigability of a

waterway between two states and that for this reason

they are covered.

The defendant’s position is that the facts of each

case must control its disposition; that the recent case

of Mitchell v. H. B. Zachry Co., 362 U.S. 310, not. men-

tioned in the Secretary’s brief, is significant; that the

general propositions urged by the Secretary have no

application here; that Pennington-Winter is not rele-

vant; that the record is silent as to the use of the res-

ervoir for commerce; and that such use in any event is

purely local.

The statute, §206(a) establishes the minimum

wage:

Every employer shall pay to each of his

employees who is engaged in commerce or in

the production of goods for commerce wages at

the following rates—* * *

207(a) is concerned with maximum hours:

Except as otherwise provided in this ‘sec-

tion, no employer shall employ any of his em-

ployees who is engaged in commerce or in the

production of goods for commerce for a work-

week longer than forty hours, unless such em-

ployee receives compensation for his employ-

ment in excess of the hours above specified at

a rate not less than one and one-half times the

regular rate at which he is employed.

§211(¢) requires appropriate records. Violation of

these provisions is made unlawful by 4 215(a) (2) and

(5). §217 and §216(c) authorize actions, such as

these, by the Secretary.

The terms ‘‘in commerce” and “in the production

of goods for commerce’’ appear not only in § 206(a)

and ¢ 207(a) but, as well, in 4 202(a) setting forth the

findings of Congress, and in § 208(a). They are, of

course, vital in the interpretation and application of

the Act. Some of the words in these phrases are in

turn defined in § 203.*

*“8 903. Definitions * * *

“(b) ‘Commerce’ means trade, commerce, transportation,

transmission, or communication among the several States or

between any State and any place outside thereof.

* * * =

“(1) ‘Goods’ means goods * * * wares, products, con::nodi-

ties, merchandise, or articles or subjects of commerce of any

character, or any part or ingredient thereof, but does not in-

clude goods after their delivery into the actual physical pos-

session of the ultimate consumer thereof other than a producer,

manufacturer, or processor thereof.

“(j}) ‘Produced® means produced, manufactured, mined, han-

dled, 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 essen-

tial to the production thereof, in any State.”

Subsection (j) assumed its present form by amendment. in

1949. Prior thereto its last clause read “or in any process or

The Supreme Court authority. Those sections of

the Act which are involved here have been the subject

of extensive litigation. Since February 3, 1941, when

aumied court held the Act to be witht the commerce

power of Congress and not violative of the Fifth —

Tenth Amendments, United States ve Darby, 212 0.

100; Opp Cotton Mills vy. Administrator, 312 U.S. fe

these sections have been subjected to serutiny and

interpretation in over 80 cases In the Supreme Court

itself.'

occupation necessary to the production thereof, in any State.”

The amendment thus inserted “closely related” before “process”

and substituted “directly essential” for the word “necessary.”

‘Kirschbaum Co. ve Walling, 1942, 316 ULS. SIT: Overnight

‘Motor Co. v. Missel, 1942, 316 U.S. 57220 Warren-Bradshaiw

Cov. Hall, 1942, 317 Uls, 88: Walling vi Jacksonville Paper

Co, 1913, 317 U.S. 564: Wiggins ve Carr Bros, Co. VV, Blt

US. 572: Overstreet ve North Shove Corp. AB. B18 TLS. 125:

Pedersen vod FL Fitzgerald Construction Ca, WAS. BIS US.

THO: reversing per curiam ais N.Y. 687, 25 NBL 2d 8: WeLeod

v. Threlheld, 1943, “—_ U.S. 491: Walton vo Southern Package

Corp, LOE. 3820 TLS. 540: ree Coal Cory. Muscoda Local,

144, 521 US. 590; Addison ve Holly [1//1 Se 1944, 322 US.

607; Armour & Co. v. Wantockh, 1944, 323 U.S. 126; Skidmore

‘. Swift & Te. 4, 28 TS. 134: ee Co, v. Walling,

1945, 324 US. 490: 10 Fast 40th St. Co. ve Callus. WAS. B25

US. Sm: Heinden mS rg Hla, ADAD, B25 ULS. 678: Roland

Co. v. Walling, 1916, 526 ULS. 657: Mertine ve Mich. Window

( ‘bandied Cex WD46, $26 ULSs " gis Maher ve Wiite Plains Pub.

Co., 1946, 327 ULS. 178: Boutell vo W lian. 1946, 327 US, 463:

Schulte Co. v. Gangi, 1946, 328 U.S. 108; Walling v. Portland

Terminal Co., 1947, 330 U.S. 148: Murphey v. Reed, 1948, 335

U.S. 865: Farmers Irrigation Co, ve MeComhb, ager. 337 U.S.

195; Powell yo UN, Cartridge c'0.. 1950, 339 US. 497: Alxtate

Construction Co. v. Durkin, 1953, 345 U.S. i Thomas v.

Hempt Bros., 1953, 845 U.S. 19; Vitchell v. Joyce Agency, Ine.,

1955, 348 U.S. 945; Mitchell v. Vollmer & Co.. 1955, 349 U.S.

427; Vitehell v. Lublin, MeGaughy & Asxo.. 1959, 358 U.S. 207;

Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310. There are

additional cases which, while they involve other sections of the

While some of these decisions by our highest court

have been unanimous, most of them have not «nd in

several Instances the particular case or the entire de-

cisional process in this statutory area has been char-

acterized as presenting ‘fa difficult problem’? (Lublin,

p. 212), as *‘rewarding as an attempt to square thie

circle’? (Kirschbaum, p. 520), as requiring **pain-

staking appraisal of all the variant elements’? and as

involving ‘*matters of the nicest degree” (Zachry, pp.

315 and 321).

The Court has often intimated that much of the

difficulty may be due to the absence of aid afforded by

a preliminary administrative process and the conse-

quent placing upon the courts of **the independent

responsibility of applying ad hoc the general terms of

the statute to an infinite variety of complicated in-

dustrial situations’’; to the fact that the Aet, in con-

trast to certain other important federal regulatory

legislation, stops short of limits which might constitu-

tionally have been reached (Kirschbaum, p. 523; 10

Kast 40th St., pp. 579-80) ; and to the lack of certain

statutory definitions (Bay Ridge, p. 460; Zachry, p.

320). The result is that the courts find themselves

Act, are revealing and helpful for the solution of our present

problem: -lnderson v. Mt. Clemens Pottery Co., 1946, 328 U.S.

680; Bay Ridge Co. v. Aaron, 1948, 334 U.S. 446; Maneja v.

Waialua Agricultural Co. 1955, 349 UUs. 254: Sreiner v.

Mitchell, (956, 350 ULS. 247: Mitchell ve Ning Packing Co.

1956, 350 U.LS. 260; Mitchell ve Budd, 1956, 350 UlS. 473:

Mitchell vy. Hentucky Finance Co. 1959, 359 US. 290: Arnold

v. Ben Hanowsky, Inec., 1960, 361 US. 388.

These cases are gathered in this foetnote in the hope that

their citation here will simplify the reading of this opinion.

They will usually be referred to later by their respective pri-

mary names. We cite them all, moreover, to show the warmth

of the issues which have been generated under the Act, the obvi-

ous complexity of the problems and, as brought out below, the

closeness of the lines that have been drawn.

involved ‘tin the empirie process of drawing lines

from case to case, and inevitably nice lines’’ (10 East

40th St.,.p. 579), and in dealing ‘with doubtful in-

stanees’’ (Threlkeld, p. 495).

With this difficulty announced and recognized, the

Court, in applying the Act, nevertheless has ‘tried to

state with eandor the larger considerations of national

poliey, legislative history, and administrative practi-

ealities that underlie the variations in the terms of |

Congressional commercial regulatory measures and-

which therefore should govern their judicial coustrue-

tion”? (Kirschbaum, p. 523). Against this hackground

the following matters of note and emphasis emerge :

1. As already indicated, Congress, in producing the

Act, did not make it coextensive with the limits of its

power over commerce, ‘The history of the legislation

leaves no doubt that Congress chose not to enter arenas

which it might have oecupied’’ (Kirschbaum, p. 522;

Overstreet, p. 128).

2. This necessarily means that there is a remaining

area which is the subject for appropriate state regu-

lation. Congress “indieated its purpose to leave local

business to the protection of the ug (Jacksonville

Paper, p. 570; 10 East 40th St., p. 582; Waialua, p.

272; Zachry, p. 314).

3. This less-than-complete coverage is manifoste.t

and oceasioned by the Act’s failure to contain, with

respect to interstate commerce, such words as “affect-

ing’? or ** promoting” rather than the narrow “engaged

in commerce or in the produetion of goods for com-

meree"™ (Polish Alliance ve Labor Board, 322 U.S.

643, 647; Carr, p. 574; Threlkeld, p. 493; Lublin,

H. Zt).

4. This fact of restricted coverage, however, ‘is no

reason for narrowly circumscribing the phrase ‘en-

gaged in commerce’ ’’ (Overstreet, p. 128; Lublin, p.

211). Indeed, it is to be construed liberally, reeogniz-

ing **that the purpose of the Act was to extend federal

eoutrol in this field throughout the farthest reaches of

the channels of jnterstate eommerve’’ (Jacksonville

Paper, p. 567; Overstreet, p. 128; Zachry, p. 320)

limited only by the reach of the Act itself (Threlkeld,

p. 493). See also Mitchell v. Kroger Company, 8 Cir.,

248 F. 2d 935, 938. We are said to be dealing with an

Act ‘‘that has been given a liberal construction from

Kirschbaum * * * to Alstate * * *’? (Vollmer, p.

429). The statute ‘‘nmst not he interpreted or applied

in a narrow, grudging manner” (‘lennessee Coal, p.

597).

5. On the other hand courts are to bear in mind that

‘Gt is no warrant for extending a statute that experi-

ence may disclose that it should have been made more

ecomprehensive.’”’ (Holly Hill, p. 617); they are to be

alert ‘not to absorb by adjudication essentially local

activities that Congress did not see fit to take over by

legislation’? (10 East 40th St., pp. 482-3; Zachry, p.

314).

6. The provisions of the Act ‘‘are remedial and

humanitarian in purpose’’ (Tennessee Coal, p. 597)

and the statute ‘‘was based on findings and a declara-

tion of broad poliev”’ (Holly Hill, p. 616).

7. It is-said that ‘‘deecisions dealing with various

assertions of state or federal power in the «ommerce

field are not particularly helpful in determining the

reach of this Act’? (Jacksonville Paper, p. 569;

>The liberal construction given the Act from Airschhaum

* * * to Alatate * * * and down to and including the Vod/mer

case is now forsaken.” Mr. Justice Douglas dissenting, with

otuers, in Zachry, p. 322.

Kirschbaum, pp. 520-1) and that there is ‘no single

concept of interstate commerce which can be applied

to every federal statute regulating commerce’ (Threl-

keld, p. 495).

8. Nevertheless, the observation made, in Swift and

Company v. United States, 196 U.S. 375, 398, with

respect to the constitutional scope of the commerce

power, that ‘‘commerce among the States is not a

technical legal conception, but a practical one, drawn

from the eourse of business’’ has been apphed ‘as a

starting point for inquiry whether a particular busi-

ness is ‘in ecommerce’ within the meaning of this Aet”’

(Jacksonville Paper, p. 570).

9. The application of the Act is ‘dependent upon

the character of the employees’ activities’? and not

upon those of the employer (Kirschbaum, p. 524;

Warren-Bradshaw, p. 90; Jacksonville Paper, p. 571;

Overstreet, p. 132; Threlkeld, p. 497; Lublin, p. 211;

Zachry, p. 315). The fact an employer may he en-

gaged in ecommerce or in the production of goods for

ecommerce does not mean that all his employees are

necessarily covered by the Act (White Plains, p. 184).

10. Tests have been evolved. In eases where the

“in commerce” phrase is in issue the test “is not

whether the employee’s activities afrect or indirectly

relate to interstate commerce but whether thev are

actually in or so closely related to the movement. of

the commerce as to be a part of it’? (Threlkeld, p.

497; Boutell, p. 466) or “whether the work is so di-

rectly and vitally related to the functioning of an

instrumentality or facility of interstate commerce as

to be, in practical effect, a part of it, rather than

isolated, local activity’? (Vollmer, p. 429; Lublin, p.

212; Mitchell v. Brown, 8 Cir., 224 F.2d 359, 363,

cert. den., 350 U.S. 875). Where the “production of

goods for commerce’ phrase is involved the test, at

least before the 1949 amendment, was whether the

work has ‘‘a close and immediate tie with the process

of production for commerce’’ (Kirschbaum, p. 529;

Borden, p. 682; Roland, p. 665; Farmers Irrigation,

p. 759; Waialua, p. 271). ‘‘Whatever terminology

is used, the criterion is necessarily one of degree and

must be so defined’’ (Kirschbaum, p. 526). Since

1949 it is still required “that we once again apply

the formulation set down in Kirschbaum, which, in

view of the 1949 amendment, we must do with re-

newed awareness of the purpose of Congress to avoid

intrusion into withdrawn local activities’’ (Zachry,

p. 318). .

11. The “test of whether one is in commerce 1s

obviously more exacting than the test of whether

his occupation is necessary to production for com-

merece’? (Armour, p. 131; Tobin v. Johnson, 8 Cir.,

198 F. 2d 130, 132, cert. den. sub nom. Johnson Vv.

Durkin, 345 U.S. 915: Hertz Drivurself Stations v.

United States, 8 Cir., 150 F. 2d 923, 926).

12. No precise formula or hard and fast rule

which will resolve all cases is available. “Formulas

are not provided bv the great concepts of the Con-

stitution * * *”? (Kirschbaum, p. 526) and none is

provided here. “Practical considerations”? are re-

peatedly emphasized (Overstreet, p. 128; Vollmer, p.

429). “What is required is a practical judgment

** * (Armour, p. 130; Roland, p. 665). As has

been noted above, it is a matter of drawing lines:

And when lines have to be drawn they are

bound to appear arbitrary when judged solely

by bordering cases. To speak of drawing lines

in adjudication is to express figuratively the

task of keeping in mind the considerations

relevant to a problem and the duty of coming

down on the side of the considerations having

controlling weight. Lines are not the worse

390

for being narrow if they are drawn on rational

considerations. 10 Kast 40th St. Co. vy. Callus,

325 U.S. 578, S84.

This “makes it all the more necessary to hew close

to the line marked out by the specific facts of the

eases before us’’ (Mr. Justice Frankfurter, dissenting,

in U. S. Cartridge, p. 523).

13. The emplovee has the burden of establishing

that he is covered by the Act (Warren-Bradshaw, p.

90; Schulte, p. 120; Mt. Clemens, p. 687).

14. Each case must stand on its own facts (Swift,

p. 140; Mitchell v. Brown, supra, p. 362 of 224 F. 2d).°

*It is nevertheless interesting to observe the specific results

in only the Supreme Court cases and without. listing the results

in the very numerous lower federal court decisions including our

own which have been decided to this date. Thus we have hold-

ings, either direct or upon admission, that the Act does apply

to employees of a loft building whose tenants are engaged in

the production of goods for interstate commerce (Kirschbaum) .

the rate clerk of an interstate motor transportation company

(Overnight Motors): employees of a rotary drill crew whose

task ceased at an agreed depth short of the oil sand stratum

(Warren-Bradshaw). employees of a paper wholesaler’s branch

houses from which distribution did not cross state lines (Jack-

sonville Paper): employees of a toll road and drawbridge over

the intra-coastal waterway in Florida (Overstreet): employees

of a construction company building new replacement abutments

and repairing sub-structures of bridges damaged by floods and

used by interstate railroads (Pedersen): night watchman for

manufacturing plant shipping auost of its goods in interstate

commerce (Southern Packaged; underground iron ore miners

(Tennessee Coal): citrus fruit cannery employees (Holly Hill);

on-call time of fire guards for a packing plant producing goods

for interstate commerce (Armour; Swift): warehouse and cen-

tral office employees of an interstate retail chain store system

(Phillips): interstate manufacturer's office building employees

(Borden): employees of a manufacturer and interstate servicer

of electrical equipment (Roland) ; employees of a window clean-

ing firm doing contract work for customers engaged in inter-

state commerce (Mich. Window Cleaning: but see Zachry, p.

Inspite of the recent referenee (Mr. Justice Douglas

for the dissenters, in Zachry, p. 325) to the theretofore

existing “‘svimmetry of the judicial rulings under the

Act’’, we must bear in mind that each of these cases,

too, “*must stand on its own facts’, and that perhaps

no decided case affords precise precedent for the ones

now before us. It is our task to adopt a liberal ap-

proach where the statute is applicable and yet to be

aware that there is an area of regulation whieh Con-

vress has left to the states: to be mindful of the facet

317); employees of a daily newspaper having less than one-

half of 1% of outstate circulation (White Plains) ; employees of

a service firm working on vehicles owned by a corporation en-

gaged in interstate commerce (Boutell); employees of a loft

building, the tenants of which deliver their manufactured goods

to local distributors who ship them in interstate commerce

(Schulte) ; emplovees of irrigation company supplying water to

farmers who raise produce shipped in interstate commerce

(Farmers Irrigation); employees of manufacturer operating

government munitions plant under contract (U.S. Cartridge) :

off-the-road employees producing surfacing materials used on

interstate roads and railroads (Alstate; Hempt):; employees of

an agency furnishing watchmen, fire inspection and other serv-

ices to an interstate retail system (Joyce Agency): sugar

processing plant employees (Waialua) ; employees of contractor

building lock on new alternate route for intra-coastal water-

way in Louisiana (Vollmer); non-professional employees. of

architectural and engineering firm designing projects in more

than one state (Lublin). We also have holdings that the Act

does not apply to employees of a wholesale produce company

receiving some of its merchandise from other states but deliver-

ing only in Maine (Carr); a cook employed by a firm contract-

ing to furnish meals to maintenance-of-way employees of an

interstate railroad (Threlkeld); employees of a loft building,

the tenants of which are not engaged in manufacture (16 East

40th St.); interstate railroad employees in training (Portland

Terminal) ; employees engaged in the construction of a naval

training camp and base depot (Murphey); employees of a con-

struction company building a dam to increase a city’s reservoir

capacity (Zachry).

that construction employees may (Warren-Bradshaw ;

Pedersen; Alstate; Hempt; Vollmer; Tobin v. John-

son, supra, and Tobin v. Pennington-Winter Const.

Co., supra) or may not (Murphey; Zachry) be subject

to the Act; and to be aware that the so-called new

construction rule, which has been developed and ap-

plied in other areas of federal regulation,’ does not

now thwart coverage under this Act... This may well

involve the walking of a decisional tightrope but we

do so with the comfort that all the cases are close and

that the lines are necessarily finely drawn.

Zachry, being not only the most recent expression

of the Sapreme Court but involving, as it does, con-

struction employees, deserves special mention. ‘The

employer there was constructing a Texas river dam

designed to increase existing reservoir capacity of a

water supply distriet whieh imeluded the City of

Corpus Christi. The dam was not a multi-purpose

project. The existing dam was to continue im use

until inundated upon the completion of the new con-

struction. Nearly half the water consumption from

the system went to industrial users most of whom

produced goods for commerce, Some water was con-

sumed by facilities and instrumentalities of commerce.

The Court mentioned many of the general rules out-

lined above and noted three categories of activity to

which the Act applied: first, employment which was

TSee Raymond ve Chi, Mil. de St. Pe Py, Co. 245 US. 43,

and the cases cited by the dissent in Voller. p. 452-3.

* Vollmer, p. 429 and Zachry, p. 313. See Southern Pacific

Co. vv. Gileo, 351 US. 493, 500; Lublin, p. 213: Archer v. Brown

c& Root, Ine., 5 Cir. 241 F. 2d 663, 664-5, cert. den. 355 U.S.

825. The fact that construction is new, however, is not an

irrelevant factor in determining coverage (Zachry, p. 319).

“in commerce’ and the least affected by local inter-

ests; second, and a ostep removed, employment in

“production for commerce’; and third, and furthest

removed, employment in an activity which is’ only

related to such production. It stated, pp. 315-4, 319

and 320 of 362 U.S.:

* * * whether construction work is covered

depends upon all the circumstances of the rela-

tion of the particular activity to “commerce”

in the statutory. sense and setting. * * *

** * As we held in Vollmer, that an activity

is rightly called construction and is therefore

distinet from operation, does not per se remove

it from coverage. Construction may be suff

ciently “closely related” to production to place

it in that proximity to “commerce which the

Act demands as a predicate to coverage * * *

** * What is finally controlling im each

case is the relationship of the employment. to

commerce,” in the sense of the statute, and it

needs no argument that as to that relationship

this case is significantly different from: Lublin

or Vollmer.

ZAachry, of course, has distinguishing factual fea-

tures from those before us, centers upon the ‘pro-

duction’? clause rather than the “in commerce” clause

of the Act and, furthermore, is a decision by a bare

majority of the Court. The case is helpful, however,

because (a) it emphasizes the limitations of the stat-

ute; (b) it recognizes that all work and particularly

all construction work is not covered by the Act; (¢) it

gives emphasis to the three gradations of covered ac-

tivity; (d) it stresses the need for considered judg-

ment in the light of all aspects of the activity under

review, and (e) its implications are not restricted to

the “production’’ clause.

30)

The foregoing principles and Zachry itself show

the way, we feel, to the disposition of the present

‘ases and we affirm. We do so in the conviction,

reached after a thorough review of this reeord and

of the original exhibits, that the activities of these 29

employees are not within the vital phrases of the

Act. We reaeh this conelusion in the light of the

following factors:

A. The: employees were certainly not engaged in

the “production of goods for Commerce” in spite of

the allegations of the complaints and the argument

evidently made in the trial court. The Secretary on

this appeal does not seriously, oat all, urge cover-

age under this phrase of the statute. Im any event,

Zachry would appear to be conclusive oppose ait-

thority on that issue.

Bb. We are then conceerned with fitting the work of

these emplovees tito the “in commerce” plirase. “This

Is activity “least affected by local interests”. Are

these employees engaged in “trade, commerce, trans-

portation, transmission or communication among the

several States”, as §203(b) defines, and as Zachry

outlines, p. 316, in aetivities of traditionaily national

concern” at ‘the hub of national interest in *c¢om-

merce’ or does their work have a more ready rela-

tionship te what is essentially local activity ?

(. Many of the decided cases, where coverage is

found, involve the last phrase of the definition of

produced” (see footneate 3) which, Zachry teils us,

pp. 316-7, is “at the periphery of coverage” and

‘marking the outer limits of applieabilitv’. The

present cases with their reliance on ‘tin’ commerce”

involve the “‘more exacting.” test.

1). Congress, when it wants clearly to imelude ai

area of aetivity, knows how to use appropriate lan-

guage (Holly Hill, p. 616; Polish Alliance, supra, p.

647 of 322 U.S.).

EK. These employees were not engaged in the con-

struction of the dam itself or in the clearance work

at the damsite. Their activities were in more remote

areas and certain phases of their work, such as com-

plete clearance down to Elevation 840, admittedly

were oceasioned solely by the anticipated public

recreational use.

F. The trial court’s findings that the clearing oper-

ations ‘‘were strictly of a local nature”, p. 560 of 179

F. Supp., has support in the testimony of defendant’s

witnesses and also finds support from the Secretary’s

principal witness, J. C. Pyle, Chief Hydraulic Engi-

neer with the Corps. Much of the eross-examination

of Pyle is set forth in Judge Miller’s memorandum.

Mr. Pyle did state on direct that in his opinion the

clearing work was a part ‘‘of the overall construction’’

and he gave a: affirmative answer to the question

whether the clearing was “desirable from the stand-

point of reducing floating debris on the reservoir”;

yet he aiso acknowledged that the design memorandum

stated that the clearing was desirable for reasons other

than floatage and that ‘‘the largest reason for the

clearing was to promote the passage of boats”. On

cross-examination, he recognized the change, since the

Norfork dam was built, in official attitude as to the

necessity of clearance and admitted that ‘one of the

plans studied provided only ‘‘for a very small amount

of clearing”’ at the “access points and the main public

aeeess”; that floating material would not hother the

penstocks at all; that “ttuat type of clearing in the

vicinity is desirable * * * I would be inclined to say

that it is not necessary * * *”; that he didn’t expeci

trouble; that ‘‘it was cleared to control mosquitoes and

for boat passage, the boats being primarily recrea-

tional boats” and that “this is not a navigation proj-

ect’. The testimony as to the purpose of the clearing

thus, at best, is in conflict. The trial judge’s deter-

mination as to this is essentially factual in nature and

we are reluetant and unable to say that it is clearly

erroneous.

G. Setting to one side this conflicting testimony, the

changes in the Corps thinking and other items re-

viewed in the trial court’s opinion, there remains the

signifieant nature of the clearing itself. This alone

almost compels the conclusion that protection of the

dam, if it were present as a factor at all, Was no more

than a consequential motive in the elearing. Only a

little over 14% of the reservoir shoreline was cleared;

the major portion of the timbered area in the reservoir

had no clearing of any kind; in the modified clearing

areas any existing fallen trees and trash were allowed

to remain; there was no clearing in the flood-pool

although water will rise to that level on occasion and

at Bull Shoals flood-pool timber was killed by the

flooding; complete clearing centered in the publie ac-

cess areas; and no clearing was done on opposite sides

of the stream. :

H. While we can accept the Secretary's proposition

that the White River project must be viewed in its

entirety, we are not convinced that it follows from this

that every activity in connection with the project is

eovered by the Act. The argument would be stronger

if Congress had used all its available constitutional

power. Somewhere the line must be drawn. “There

must be a cut-off point at some time * * *”. Mitchell

v. Hygrade Water & Soda Company, 8 Cir., 285 F. 2d

362, 367.

I. We are not here concerned with an issue com-

parable to that of the validity of government taking

as to which the cases (including our own recent United

States v. Mischke, 8 Cir., 285 F. 2d 628, 631) hold that,

at least in the absence of arbitrariness, wisdom of de-

cision is a legislative matter not subject to judicial

review. We have involved here the interpretation

and application of a statute.

J. We attach little significance to the fact that the

funds paid defendant came from general appropria-

tions allocable either to flood control or power. Mr.

Pyle testified that all the costs were allocated to these

two categories.

K. The legislative tendency since the passage of the

original Act has been in the direction of limiting the

broad interpretations which the courts have given the

statute. This is evidenced by both the Portal-to-

Portal Pay Act, ec. 52, 61 Stat. 84, now 29 USCA § 251

et seq., and the 1949 amendment to §203(j). (See

Steiner, pp. 253-6; Zachry, p. 317, and Mitchell v. Hy-

grade Water & Soda Company, supra, p. 366 of 285

F. 2d). We must heed that tendency and its judicial

recognition.

The Secretary’s alternative argument that, because

one of the purposes of the clearing activities had a

relationship to the passage of boats in the reservoir,

and because the reservoir extends into two states, we

are concerned with employment directed toward the

improvement of navigability of a waterway of the

United States and thus with employment plainly

within the coverage of the Act, has its tantalizing as-

pects. We find no authority precisely supporting this

contention. We think that the Secretary’s argument

is no more than part and parcel of, and not separate

from, his main argument; that the fact there may be

pleasure boats wandering into certain of the reser-

voir’s tentacles stretching into adjacent Arkansas is

only an incidental circumstance which does not make

the present employees’ activities of a kind the Act’s

“engaged in commerce” language Was meant to em-

brace; and that this secondary issue is fully controlled

by all that has been said on the primary point.

Tobin ve Pennington-Winter Const. Co., supra,

which the Seeretary urges upon us, must net be

passed by. This is particularly so because the Su-

preme Court stated, p. 429 of 349 ULS., that certiorari

in Vollmer was granted to resolve an apparent con-

tliet with Penntngton-Winter. This Tenth Cireuit

ease involved elearance work for a multi-purpose

project. The decision, one judge dissenting, placed

great emphasis upon the comprehensive character of

the improvement plan and upon the fact that the

recreation facilities “were a very stnall part of -the

project’, and it regarded as of “vital significance”

the fact “that the major portion of the work’? con-

sisted of the removal of possible obstructions which

would interfere with the operation of the dam itself.

It is net clear whether “in commerce’? or “produc-

tion’? was primarily involved. In any event, the

record before us, in contrast, brings out the primarily

local or recreation aspects of the work performed.

Much of this may be due, as the record indicates,

to the change in engineering attitudes in the inter-

vening years, tempered by experience, as to the non-

necessity of clearance in projeets of this kind. Be

that as it may, we feel that if Pennington-Winter

falls on one side of the fine line whieh courts must

draw, the present cases are sufficiently different. from

it so as to fall on the other side. In any event, Pen-

nington-Winter predates Zachry.

We have reviewed, undoubtedly at too great length,

the many Supreme Court cases, the rules they pro-

mulgate, and the several factors which have influenced

us In reaching our conclusion. Decision in this kind

of case is, after all, perhaps only a question of touch

and of tone. Although this may be one of the “hostile

constructions’’ anticipated by the dissent in Zachry,

p. 325, we conclude that the work performed by these

employees was activity essentially collateral and local

in nature and not subject to the reach of the Fair

Labor Standards Act.

Affirmed.

United States Court of Appeals for che Eighth Circuit

No. 16509. September Term, 1960

ARTHUR J. GOLDBERG, SECRETARY OF LaBor, UNITED

STATES DEPARTMENT OF LABOR, APPELLANT

WapbE LaHAR CONSTRUCTION COMPANY, A CORPORATION

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF ARKANSAS

This cause came on to be heard on the record from

the United States District Court for the Western

District of Arkansas, and was argued by counsel.

On Consideration Whereof, It is now here Ordered

and Adjudged by this Court that the judgment of

the said District Court appealed from in its Civil

Cause No. 451 be, and it is hereby, affirmed.

APRIL 13, 1961.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.