W. Willard Wirtz, Sec. Of Labor, U. S. Dept. Of Labor v. Ignazio Intravaia

375 F.2d 62 W. Willard WIRTZ, Sec. of Labor, U. S. Dept. of Labor, Appellant, v. Ignazio INTRAVAIA et al., Appellees. No. 20856. United States Court of Appeals Ninth Circuit. March 15, 1967. Charles Donahue, Sol. of Labor, Bessie Margolin, Associate Sol., Robert E. Nagle, Atty., Donald Shire, Atty., John Orbin, Atty., Dept. of Labor, Washington, D. C., Altero D'Agostini, Regional Atty., Dept. of Labor, Los Angeles, Cal., for appellant. Merrill Albert, Los Angeles, Cal., for appellees. Before BARNES, DUNIWAY and ELY, Circuit Judges. DUNIWAY, Circuit Judge: 1 The appellant, Secretary of Labor, brought this action to enjoin further violations of the overtime and record-keeping requirements of the Fair Labor Standards Act, 29 U.S.C. §§ 207 & 211 (c). After a trial, the trial court concluded that appellees' employees were not within the coverage of the Act, and judgment was entered for appellees. We reverse. 2 The Act covers employees who are "engaged in commerce or in the production of goods for commerce," a phrase which recurs in many sections ( 29 U.S.C. §§ 202 (a), 203(s), 206(a) (b), 207(a), 208 (a), 212(c)). The sole question presented is whether…

The appellant, Secretary of Labor, brought this action to enjoin further violations of the overtime and record-keeping requirements of the Fair Labor Standards Act, 29 U.S.C. §§ 207 & 211 (c). After a trial, the trial court concluded that appellees’ employees were not within the coverage of the Act, and judgment was entered for appellees. We reverse.

The Act covers employees who are “engaged in commerce or in the production of goods for commerce,” a phrase which recurs in many sections ( 29 U.S.C. §§ 202 (a), 203(s), 206(a) (b), 207(a), 208 (a), 212(c)). The sole question presented is whether appellees’ employees were “engaged * * * in the production of *64 goods for commerce.” This brings into play section 203(j):

We consider the facts in the light of these statutory provisions.

Most of the facts are stipulated; there is no substantial conflict in the evidence. Appellee Intravaia, with his wife, is owner of appellee I & I Trucking, Inc., a corporation. Both appellees have the same place of business, in El Monte, California. The business is hauling. Ap-pellees employed about 26 people, about 20 of whom were drivers. These drivers used appellees’ equipment to haul sand, gravel,…

(concurring) :

I concur in the result reached by the majority.

Appellees’ employees have been engaged in the hauling of sand, gravel and cement which ultimately go into the construction of roads and airport runways which are instrumentalities of interstate commerce. Alstate Const. Co. v. Durkin, 345 U.S. 13 , 73 S.Ct. 565 (1953), makes it clear that essential elements which become a part of such instrumentalities are goods for commerce within the meaning of the Fair Labor Standards Act. Since appellees’ employees are engaged in the “transportation” of such goods, under section 203(j) they are deemed to be engaged in the “production” of such goods. The conclusion must be that appellees’ employees are engaged in the production of goods for commerce, and are therefore subject to the provisions of the Act.

*67 I concur in the result because I feel that such a decision is required by Al-state. I cannot accede, however, to the majority’s suggestion (last two sentences of second paragraph of the majority opinion) that we are only applying the statutory language to the facts of this case.

The exercise of reason does not recon* cile the result we reach here with the power of Congress…