*1 DURKIN, CO. v. CONSTRUCTION ALSTATE LABOR. OF SECRETARY 9, 1953. March February 2-3, Argued 1953 . Decided No. 296. peti- the cause argued Jr. Schreckengaust, A. Samuel Nurick. Gilbert him brief was tioner. on the With With respondent. argued the cause Margolin Bessie Cummings General her on the brief Solicitor Tyson. William S. Ruth Jr. and Crosby Roper, Amy Horsky, A. W.
Charles Asso- & Gravel for the National Sand Mahin filed a brief curiae, urging reversal. amicus ciation, as the Court. opinion delivered Black Mr. Justice requires Labor Standards (a) Section 7 of the Fair not by the Act employee covered employers to each pay rate regular pay his times less than one and one-half rf*- week; forty-hour of a in excess worked
every hour employ- keep appropriate employers (c) requires 11 § *2 those are defined as covered Employees records.1 ment of in production or the in commerce “engaged that employees held have for We in commerce” railroads are roads or interstate ques- 7 The (a).2 that clause of meaning § within the who employees whether in this case is presented tion re- of materials to work off such roads the them are “in pair (a). meaning of 7§ within the commerce” in sued District Wage and Hour Administrator The Construction Com- enjoin petitioner the Alstate Court to record-keeping and violating the overtime from pany Al- Court found: of the Act. The District provisions that reconstructs Pennsylvania road contractor state is and like facilities roads, railroads, parkways and repairs The also manufactures at three company that state. road surfac- plants a bituminous concrete Pennsylvania from materials either mixture called amesite made ing of it Pennsylvania. ap- Most bought quarried Pennsylvania by to either Alstate’s own em- plied roads Eighty-five and one- ployees by Alstate’s customers. half work here involved was done on percent Alstate’s railroads, Pennsylvania or for roads, com- panies producing goods commerce, for interstate and on that did projects was done not relate to inter- 14%% no attempt segregate state commerce. Alstate made to to its on the whether their payments employees basis of work involved interstate or intrastate activities. 1060, amended, 910, 912-913,
1 52 Stat. as 63 Stat. 29 C. U. S. (a), 211 (c). §§ 207 2 Corp., 125; v. Pedersen v. Overstreet North Shore 318 S.U. Fitzgerald 687, 740, reversing Construction N. Y. 318 U. S. 288 Corp., 83, authority E. 43 N. 2d on the v. North Shore Overstreet supra.
15 employees of Alstate’s all that held Court The District injunction the granted and Afet the by covered were Appeals Court of The 585. Supp. F. 95 prayed. employees that affirmed, holding Circuit Third the commerce,” “in roads were on worked of Alstate producing employees plant its “off-the-road” that On sim- F. 2d 577. 195 “for commerce.” materials road Eighth Circuit Appeals Court facts, the ilar Tobin employees. “off-the-road” applied was reached result opposite 130. An F. Johnson, 2d Clifton, v.Co. Schroeder in E. C. Circuit the Tenth Pennsylvania Supreme Court 385, F. 2d 776. A. 2d 383, 89 Bros., 371 Pa. Hempt Thomas this certiorari granted question this settle To 895. *3 Bros. case. Hempt the Penn- on for use Pennsylvania in produced is Amesite pur- awith manufactured it is of roads. None sylvania reason, so For this lines. across state ship it pose “for com- produced is not contends, amesite Alstate would this contention of acceptance Obviously, merce.” commerce” for goods of “production to read require us transporta- goods “production written though as lim- lines. Such state is, across in commerce” —that tion the passed it bill as in the appear did language iting as passed. the Act out of it left Senate,3 Congress but ship- purpose for the “goods” Of course “for commerce.” lines state them across ping Overstreet consistently with not But we could hold — Fitz- Pedersen 125, and S. Corp., 318 U. North Shore only 740—that gerald Construction them produce is to “for commerce” goods toway produce lines. state across transportation had cases, supra, we Pedersen and In Overstreet inter- in repairing employees whether to decide 3 Cong. Rec. 7957. were “in commerce.” In Over-
state roads railroads street out that interstate roads and pointed railroads indispensable carriage are “instrumentalities” persons that move commerce. then held that because roads We and railroads are integrated indispensable law and fact parts of our system among states, employees commerce repair- ing them are “in commerce.” Consequently he who highways serves interstate and railroads serves commerce. By the same he who produces goods token in- these dispensable and inseparable parts of produces commerce goods for commerce. We therefore Al- conclude that state’s employees off-the-road covered the Act because engaged “production for commerce.”
It is contended that we should not construe the Act
as covering the “off-the-road” employees because it was
given a contrary interpretation
by its administrators
from 1938 until 1945. During
years
these first
after
the Act’s passage the administrator did take such a
position. But more experience with the
together
judicial
with
construction of its scope4 convinced its
administrators that the first interpretation
unjustifi-
was
ably narrow. He therefore publicly announced that off-
the-road employees like
protected
these were
by the Act.
The new interpretation was reported to congressional
committees on a number of occasions.
Interested em-
*4
ployers severely criticized the administrator’s changes.
Specific amendments
urged
to neutralize his inter-
pretation.
Such neutralizing
sug-
amendments were
gested to congressional committees
National Sand
and Gravel Association which has filed a brief before
4 Fleming
v. Atlantic
Co.,
Supp. 654,
40 F.
affirmed sub
At
nom.
lantic Co. v.
Walling,
518;
131 F. 2d
Lewis v.
Light
Florida Power &
751;
Co.,
154 F. 2d
v.
Southern United Ice
F.
Hendrix,
153
2d
Co.
689; Chapman
17 sug of the any adopting Instead us as amicus curiae.5 interpretation, the administrator’s undermine gestions to Stand Fair Labor to the amendment in a 1949 Congress regulations orders, all past that provided ards Act in ef remain should administrator of the interpretations order, regulation, any that such the extent “except to fect provi with inconsistent may . . . be interpretation, amended, be time to time may from Act, of this sions 6 . ...” Administrator by the modified, or rescinded interpreta- an administrative repudiate We decline after repudiate refused to Congress which tion of the Act to do urged so. being repeatedly injunction, scope to the objection an There is treatment Appeals’ the Court of satisfied with but we are of this contention.
Affirmed. Frank- Douglas, with whom Justice Mr. Justice Mr. dissenting. concurs, furter building man who that if the is
The reasons Court “engaged is com- highway an interstate himto gravel who cement and merce,” the one carries goods pit “engaged nearby from about the men true, if that is how Yet for commerce.” carry for those who the cement the tools produce make furnish the materials to or those who gravel gravel? the cement and producing the tools used highway to the worker be essential Each would large once gets amazingly the circle Yet in- for commerce” that “the say “production cludes the Threlkeld, 319 S. 491. McLeod U.
commerce.” Cf. 5 Hearings No. before Subcommittee See for illustration Cong., 40, on H. R. 80th House Committee on Education Labor 1st Sess. 1374-1375. 910, 920. 63 Stat. *5 maintaining
A person who is facilities transportation 125. A Corp., per Shore 318 U. S.
Overstreet v. North creating articles destined for the channels of son who is all a interstate commerce and others who have such close an process and immediate connection with the as to be necessary part essential or of it are “the pro duction of for commerce.” See Kirschbaum Co. Walling, 517. If serve those “en gaged included, large commerce” are also measure affecting brought cases commerce are into the Act. history Yet the of the Act shows that no such extension of the federal domain was intended. See Kirschbaum Walling, Co. v. 522-523. If supra, pp. those whose activi ties necessary support are essential to those who are “engaged in brought commerce” are to be Act, under the I think an amendment of the Act would necessary. be