Mitchell v. H. B. Zachry Company/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

The opinion of the Court is more consistent with the dissent in Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196, in which my Brother FRANKFURTER joined, than it is with the Court's opinion in that case. The liberal construction given the Act from Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, to Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, and down to and including the Vollmer case is now forsaken. Yet this seems to me to be a singularly inappropriate occasion to change the direction of the law in a mere matter of statutory construction.

The report of the Senate Conferees (95 Cong.Rec. 14874-14875) which ushered § 3(j) into the law in its present form said:

'The work of employees of employers who produce or supply     goods or facilities for customers engaged within the same      State in the production of other goods for interstate      commerce may also be covered as closely related and directly      essential to such production. This would be true, for     example, of employees engaged in the following activities:

'2. Producing and supplying fuel, power, water, or other     goods for customers using such goods in the production of      different goods for interstate commerce. Reynolds v. Salt     River Valley Water Users Asso. (143 F.(2d) 863 (C.A.9));     Phillips v. Meeker Coop. Light and Power Asso. (158 F.(2d)     698 (C.A.8)); Lewis v. Florida Light and Power Co., (154      F.(2d) 751 (C.A.5)); West Kentucky Coal Co. v. Walling (153      F.(2d) 152(582) (C.A.6)).' The dam here under construction was to furnish the City of Corpus Christi with a water supply-a city water system that services railroads, truck companies, airlines, other instrumentalities of interstate commerce and various producers of goods for commerce. It is conceded that the major industries in this area produce goods for commerce and use a substantial amount of water in that connection. Indeed, 40% to 50% of all water furnished by the city is used industrially.

Reynolds v. Salt River Valley Water Users Ass'n, 9 Cir., 143 F.2d 863, held that repair and maintenance employees of canals and dams of an irrigation company supplying water for growers of crops intended for shipment in interstate commerce were engaged in an occupation necessary for the production of goods for commerce.

West Kentucky Coal Co. v. Walling, 6 Cir., 153 F.2d 582, held that men producing coal sold to factories producing goods for commerce were covered by the Act.

Meeker Cooperative Light & Power Ass'n v. Phillips, 8 Cir., 158 F.2d 698, held that employees of a power cooperative distributing electricity to companies that produced goods for commerce were covered by the Act.

These three decisions, as noted, were approved by the Senate report defining the scope of § 3(j). Certainly then, employees maintaining this new dam would be covered by the Act, as our own decision in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672, indicates.

How then, if these precedents are to be followed, can employees who built the dam be out of reach of the Act?

We held in Mitchell v. C. W. Vollmer & Co., supra, that construction of a lock to be used in commerce was work 'in commerce.' 'The test is whether the work is so directly 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.' 349 U.S. at page 429, 75 S.Ct. at page 862, 99 L.Ed. 1196. There is no more remoteness here than there. It is difficult to understand why a stringent test of remoteness is used in determining whether construction work is related to 'production of goods for commerce' when a liberal test was applied in the Vollmer case in holding that such work was 'in commerce.' See Armour & Co. v. Wantock, 323 U.S. 126, 131, 65 S.Ct. 165, 167, 89 L.Ed. 118.

Prior to the 1949 amendments the standard in § 3(j) was whether the work was in any 'process or occupation necessary' for the production of goods for commerce. The present standard, so far as material here, is whether the work is 'in any closely related process or occupation directly essential to the production' of goods for commerce. The Senate report said that employees 'repairing, maintaining, improving or enlarging. . . facilities of producers of goods' were covered. 95 Cong.Rec. 14875. This group, the report stated, were included because they were 'performing tasks necessary to effective productive operations of the producer.' 95 Cong.Rec. 14874.

Most of the decisions cited in the report which are descriptive of this category of employees were cases where the employees were working on existing structures or appliances used by producers of goods for commerce, whether or not those facilities were owned by the producers. Such is the case of Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865. But one of the cases cited by the report as also descriptive of this group of employees was Walling v. McCrady Construction Co., 3 Cir., 156 F.2d 932, which brought within the Act's coverage workers building roads and bridges to be used to transport goods in process of production for interstate commerce. These facilities, like the one in the present case, were not owned by the producers, nor were some of them yet in existence. But when completed they would serve as facilities for those who were producing goods for commerce. That case clearly suggests that the Congress in redefining the scope of § 3(j) was following the broad contours of the coverage which had been delineated by the construction cases, as well as by the maintenance cases.

It seems as if there could be no doubt that the present case is brought squarely within that category, for this project was not the construction of a wholly new water system but an improvement of an existing water system. Moreover, the water system being improved would seem to be as much a facility of those producing goods for commerce as was the highway in the McCrady case. Moreover, in Alstate Construction Co. v. Durkin, supra, a company, making products sold intrastate but used to improve the facilities of those producing goods for commerce, was held to be employing workers covered by the Act. The work in improving the present facility used by producers of goods for commerce is at least as close to the process of production as the labor of the men in the Alstate case.

So it is that I believe today's decision changes the symmetry of the judicial rulings under the Act, narrows its scope, and impairs its effectiveness. Today's ruling is a departure from the accepted construction. By this retreat I fear we invite hostile constructions that will undermine the broad base which Congress gave the Act. If there is to be a change in the direction of the law or an alteration in its emphasis, it should be done by Congress which is far better suited than we to mark the farthest areas which the liberal policies of the Act were designed to cover. I regret that today we give up territory that Congress has fairly claimed, that we take a backward step from the measures Congress designed to protect the lowest paid and weakest group of wage earners in the Nation.