Mitchell v. C. W. Vollmer & Company/Dissent Minton

Mr. Justice MINTON, with whom Mr. Justice FRANKFURTER joins, dissenting.

Only injunctive relief is sought here by the Secretary of Labor to prevent the violation of §§ 7 and 15(a)(2) and §§ 11(c) and 15(a)(5) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq., which require the payment by employers of extra pay for overtime work and the keeping of records by them. 29 U.S.C. § 207(a), 29 U.S.C.A. § 207(a), provides:

' * *  * (N)o employer shall employ any of his employees who is      engaged in commerce or in the production of goods for      commerce for a workweek longer than forty hours, unless such      employee receives compensation for his employment 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.'

It is contended that the respondent and its employees who were constructing this cutoff canal were 'engaged in commerce.' If they were not so engaged, an injunction will not lie. This presents a question of statutory construction in light of legislative, administrative, and judicial considerations.

The Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq., provides that every railway common carrier while engaged in interstate commerce shall be liable in damages to any employee engaged in such commerce who suffers injury resulting from the negligence of the carrier. If the employee was not himself engaged in commerce, there can be no recovery under the Act.

In Raymond v. Chicago, M. & St. P.R. Co., 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583, the company was engaged in the operation of a railroad between Chicago and Seattle. Its existing route went around the mountains, and the railroad sought to tunnel through the mountains. While constructing this tunnel Raymond was injured and sued the railroad under the Federal Employers' Liability Act, claiming he was engaged in commerce when injured by the railroad's negligence. This Court held that Raymond was not engaged in commerce while working on the construction of this cutoff tunnel because its use in commerce was only contemplated after completion. That is the exact situation here with reference to this canal.

In New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, a railroad was constructing a new station alongside its interstate line. White was a night watchman employed at the site of this new construction and was killed. His representative sued under the Federal Employers' Liability Act, claiming that he was engaged in commerce, but this Court held that he was not engaged in commerce as he went about his duties at the site of this new construction.

In the interpretation and application of the Fair Labor Standards Act, the federal courts have adopted the rule of the Raymond and White cases, which arose under the Federal Employers' Liability Act. A prerequisite to the application of either Act was that the employee be engaged in commerce. This rule came to be known as the 'new construction rule' and was applied by this Court in Murphey v. Reed, 335 U.S. 865, 69 S.Ct. 105, 93 L.Ed. 410. It was also applied by the First Circuit in Nieves v. Standard Dredging Corp., 152 F.2d 719, where the employer was dredging a channel for navigation in a previously nonnavigable stream. The Second Circuit in Scholl v. McWilliams Dredging Co., 169 F.2d 729, applied the rule where the employer was engaged in the construction of a new air base in Greenland that had not yet been used in foreign commerce. The Third Circuit applied the rule in Kelly v. Ford, Bacon & Davis, Inc., 162 F.2d 555, where the employer was engaged in building a new plant for the construction of aircraft engines later to be used in commerce, but which plant was only an additional facility for such work. It was held in this case that the employer was not only not engaged in commerce, but it was not engaged in the production of goods for commerce. The Fifth Circuit, in another case beside the one under consideration, applied the rule of new construction to the building of an expressway which, when completed, would have routed over it several interstate highways. Van Klaveren v. Killian-House Co., 210 F.2d 510. The Sixth Circuit in Koepfle v. Garavaglia, 200 F.2d 191, applied the rule to another case of new construction of an expressway to be later integrated into a highway system. The Eighth Circuit in Crabb v. Welden Bros., 164 F.2d 797, applied the rule in the construction of the Alcan Highway. The Tenth Circuit in Moss v. Gillioz Const. Co., 206 F.2d 819, similarly applied the rule in the construction of a new bridge at 51st Street, south of Tulsa, Oklahoma, over which interstate traffic then using the 11th Street Bridge could be routed.

The agencies responsible for the administration of the Act had interpreted it as not applying to new construction not yet used in interstate commerce. Wage and Hour Interpretative Bulletin No. 5, 12, Dec. 2, 1938; BNA, 1944-1945 WH Man. 23:

'The question arises whether the employees of builders and     contractors are entitled to the benefits of the Act. The     employees of local construction contractors generally are not      engaged in interstate commerce and do not produce any goods      which are shipped or sold across State lines. Thus, it is our     opinion that employees engaged in the original construction      of buildings are not generally within the scope of the Act,      even if the buildings when completed will be used to produce      goods for commerce *  *  * .'

In the Wage Hour Manual, Bureau of National Affairs Labor Relations Reporter, Vol. 6, 10:237, the rule is interpreted as follows:

'In interpreting the Act's application to employers in the     building and construction industry, the Wage and Hour Division and the courts have drawn a distinction      between the original construction of buildings or facilities      and their repair or reconstruction.'

We are not dealing here with improving or repairing existing facilities which are already in commerce, but with new construction that has never been used in commerce.

It seems, therefore, that the Secretary of Labor has quite recently changed his mind about the application of the Act to new construction not yet used or not an integral part of interstate commerce. His change of mind should not change the law. This Court, which may change the law, seems to have changed its mind about the same time and without saying why it does so, except that the foregoing cases are of a different vintage. I am unable to distinguish the cases on the vintage test. Without overruling the Raymond, White and Murphey decisions and the number of cases decided by the Circuit Courts, this Court brushes them off as of another vintage.

Reliance upon this Court's opinions becomes a hazardous business for lawyers and judges, not to mention contractors, who are not familiar with the vintage test.