409 F.2d 954 | 5th Cir. | 1969
Lead Opinion
The narrow question raised by this appeal is whether truck drivers transporting petroleum products from Texas refineries to points elsewhere in that state are engaged in the production of goods for commerce
During the period relevant to this suit, the appellant-employer, Ray Smith Transport Company, operated a fleet of specialized motor transportation equipment within the state of Texas. The Secretary seeks by this suit to bring the drivers working out of the appellant’s Tyler, Texas office within the coverage of the Act. The drivers regularly engaged in transporting gasoline, kerosene and diesel fuel from the refineries and pipeline terminals of major oil companies to wholesale distributors, retail service stations, and certain commercial and industrial consumers.
In determining whether the appellant’s drivers engaged in the production of goods for commerce, we must deal with two inquiries: (1) whether the drivers engaged in the production of the petroleum products they transported; and (2) whether the petroleum products were produced for commerce,
The answer to the first of these inquiries lies within the statutory definition of “production” and the cases construing it. Section 3(j) of the Act provides that “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 . . ..”
Next we reach the question of whether the petroleum products delivered by the drivers were produced for commerce. The answer depends upon the uses made of the products after delivery. The drivers made most of their deliveries to wholesale oil distributors and retail service stations. An unsegregated portion of the petroleum delivered to these establishments eventually made its way into the fuel tanks of motor vehicles traveling across state lines. Other deliveries, fewer in number, were made to the following consumers: (a) manufacturers who used the petroleum in the manufacture of goods for interstate sale or as fuel in trucks transporting their goods to other states; (b) drilling companies which used the petroleum to drive equip
The appellant’s drivers also delivered petroleum to construction firms which used it as fuel to run equipment engaged in the construction and maintenance of interstate highways, waterways, and a railroad — avenues of transportation which the courts have characterized as instrumentalities of commerce.
The appellant vigorously contends that the remoteness between the activity of its employees and the uses eventually made of the petroleum products precludes a finding that the products were produced for commerce. The contention, however, is without merit. If a producer can reasonably expect his product to move or cause movement in interstate commerce, it is immaterial in determining whether the product was produced for commerce that this interstate activity is several steps removed from the producer’s operation.
It follows that the drivers were engaged in the production of goods for commerce and are, therefore, covered by the Act. The judgment is affirmed.
. 29 U.S.C. § 206(a) (1964).
. 29 U.S.C. §§ 201-219 (1964).
. 280 F.Supp. 54 (E.D.Tex.1968). The Secretary of Labor brought this suit in the district court to enjoin the appellant-employer from violating the overtime and record keeping requirements of the Act and to restrain the appellant from continuing to withhold unpaid compensation due under the Act. See 29 U.S.C. § 215(a) (2) and (5) (1964). The district court ordered the appellant to pay the overtime amounts sought but refused to enjoin further violations of the Act.
. A pre-trial stipulation established a list of fifty-six consignee-users as representative of those to whom the appellant’s employees made deliveries. The district court restrained the appellant from withholding payment of overtime compensation due employees for weeks in which the employees made at least one delivery to one or more of these fifty-six consignee-users.
. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 90, 63 S.Ct. 125, 87 L.Ed. 83 (1942).
. 29 U.S.C. § 203(j) (1964) (emphasis added).
. 323 U.S. 490, 65 S.Ct. 335, 89 L.Ed. 414 (1945).
. See Walling v. Comet Carriers, Inc., 151 F.2d 107, 110 (2d Cir. 1945); Baldwin v. Emigrant Indus. Sav. Bank, 150 F.2d 524, 526, 161 A.L.R. 1234 (2d Cir. 1945).
. 345 U.S. 19, 73 S.Ct. 568, 97 L.Ed. 751 (1953).
. 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745 (1953). The Court in Alstate makes no specific reference to emxxloyees engaged in transporting the surfacing materials, but speaks generally of employees who work away from the construction site in their production. However, Mr. Justice Douglas’ dissent, 345 U.S. at 17, 73 S.Ct. 565, and the lower court’s opinion, Tobin v. Alstate Constr. Co., 95 F.Supp. 585, 586-87 (M.D.Pa.1951), make it clear that these delivery employees were included within the scope of the Court’s holding. See Wirtz v. Intravaia, 375 F.2d 62, 65 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 90, 19 L.Ed.2d 110 (1967).
. Wirtz v. Standard Container & Paper Co., 389 F.2d 134, 136 (5th Cir. 1967); Wirtz v. Pepsi Cola Bottling Co., 342 F.2d 820 (5th Cir. 1965); Mitchell v. Hooper Equip. Co., 279 F.2d 893, 898-99 (5th Cir. 1960); Mitchell v. Jaffe, 261 F.2d 883, 887-888 (5th Cir. 1958); see Wirtz v. Intravaia, 375 F.2d 62, 65-66 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 90, 19 L.Ed.2d 110 (1967); Wirtz v. Crystal Lake Crushed Stone Co., 327 F.2d 455, 458-459 (7th Cir. 1964); Wirtz v. Dunmire, 239 F.Supp. 374, 379 (W.D.La.1965).
. 389 F.2d 134 (5th Cir. 1967).
. 261 F.2d 883 (5th Cir. 1958).
. The fact that the drivers in the case sub jiidice were not employees of the oil companies but were employees of an independent carrier does not significantly distinguish this case from Standard Container and Jaffe. “Mere separation of the economic processes of production for commerce between different industrial units, even without any degree of common ownership does not destroy the continuity of production for commerce.” D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 121, 66 S.Ct. 925, 931, 90 L.Ed. 1114 (1946); see Wirtz v. Intravaia, 375 F. 2d 62, 65 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 90, 19 L.Ed.2d 110 (1967); Mitchell v. Hooper Equip. Co., 279 F.2d 893, 896-897 (5th Cir. 1960).
. Also among the fifty-six consignee-users to whom the appellant’s employees made deliveries were four companies whose only use of the petroleum was in the manufacture of drilling mud. There is no evidence that the mud was used anywhere but in the Texas oil fields. We express no opinion as to whether the use of the petroleum by these four companies was sufficiently related to interstate commerce to make production of the petroleum used by them production for commerce. This reservation of opinion does not disturb the amount due the employees as determined by the district court, see footnote 4, since a careful examination of the work record exhibits reveals that in no relevant workweek were there deliveries exclusively to these four companies.
. Lewis v. Florida Power & Light Co., 154 F.2d 751, 753 (5th Cir. 1946); see Mitchell v. Independent Ice & Cold Storage Co., 294 F.2d 186, 189-90 (5th Cir. 1961); Mitchell v. Mercer Water Co., 208 F.2d 900 (3d Cir. 1953); Meeker Cooperative Light & Power Ass’n v. Phillips, 158 F.2d 698, 699 (8th Cir. 1946); West Ky. Coal Co. v. Walling, 153 F.2d 582, 584 (6th Cir. 1946).
. See Alstate Constr. Co. v. Durkin, 345 U.S. 13, 16, 73 S.Ct. 565, 97 L.Ed. 745 (1953); Overstreet v. North Shore Corp., 318 U.S. 125, 129-130, 63 S.Ct. 494, 87 L.Ed. 656 (1943).
. 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745 (1943).
. See Mitchell v. C. W. Vollmer Co., 349 U.S. 427, 430, 75 S.Ct. 860, 99 L.Ed. 1196 (1955); Thomas v. Hempt Bros., 345 U.S. 19, 73 S.Ct. 568, 97 L.Ed. 751 (1943); Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656 (1943); Wirtz v. Intravaia, 375 F.2d 62 (9th Cir.) cert. denied, 389 U.S. 844, 88 S.Ct. 90, 19 L.Ed.2d 110 (1967); Wirtz v. Crystal Lake Crushed Stone Co., 327 F.2d 455, 457-458 (7th Cir. 1964); Mitchell v. Hooper Equip. Co., 279 F.2d 893, 895-896 (5th Cir. 1960); Mitchell v. Emala & Associates, Inc., 274 F.2d 781, 783-784 (4th Cir. 1960).
. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 92-93, 63 S.Ct. 125, 87 L. Ed. 83 (1942); United States v. Darby, 312 U.S. 100, 118, 657, 61 S.Ct. 451, 85 L.Ed. 609 (1941); see Bracey v. Luray, 138 F.2d 8, 11 (4th Cir. 1943).
. See Wirtz v. Crystal Lake Crushed Stone Co., 327 F.2d 455, 458 (7th Cir. 1964); Mitchell v. Jaffe, 261 F.2d 883, 887-888 (5th Cir. 1958); Mitchell v. Raines, 238 F.2d 186, 188 (5th Cir. 1956); Tobin v. Celery City Printing Co., 197 F.2d 228, 229 (5th Cir. 1952); St. John v. Brown, 38 F.Supp. 385, 388-389 (N.D.Tex.1941).
Rehearing
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for' Rehearing En Banc is denied.