United States Court of Appeals First Circuit

291 F.
2d 371
Arthur J. GOLDBERG, Secretary of Labor, United States

Department of Labor, Plaintiff, Appellant,
v.
NOLLA, GALIB & CIA., Defendant, Appellee.
Arthur J. GOLDBERG, Secretary of Labor, United States
Department of Labor, Plaintiff, Appellant,
v.
FIVE BORO CONSTRUCTION CORPORATION, Defendant,
Appellee.
Nos. 5741, 5747.
United States Court of Appeals First Circuit.

June 15, 1961.
Beate Bloch, Attorney, Washington, D.C., with whom Harold C. Nystrom,

Acting Sol. of Labor, Bessie Margolin, Asst. Sol., Washington, D.C., and
Kenneth P. Montgomery, Regional Attorney, San Juan, P.R., were on
briefs, for appellant in each case.
Jorge Souss, San Juan, P.R., with whom Blanco Lugo & Souss, San Juan,
P.R., was on brief, for appellee in Case No. 5741.
Anthony J. Siminerio, New York City, with whom Joseph N. Friedman,
New York City, was on brief, for appellee in Case No. 5747.
Before MAGRUDER, 1 HARTIGAN and ALDRICH, Circuit Judges.
MAGRUDER, Circuit Judge.
These two cases, which involve essentially the same point, were argued
together on appeal and may be disposed of by a single opinion. In each, a
complaint was filed by the Secretary of Labor requesting that the defendant be
enjoined from violating the minimum wage and overtime provisions of the Fair
Labor Standards Act of 1938. 29 U.S.C.A. 201 et seq. The United States
District Court for the District of Puerto Rico entered judgments dismissing the
two complaints, on the grond that the defendants were not engaged in
commerce or the production of goods for commerce within the meaning of the
Act. Appeals from these two judgments were taken by the Secretary of Labor.
2
We think that the district court was too much impressed with cases like Divins
v. Hazeltine Electronics Corp., 2 Cir., 1947, 163 F.2d 100, 102, in which the
court, construing the phrase 'engaged in commerce,' introduced a distinction
between instrumentalities held by the government exclusively for war purposes
and those in commercial use, so as to hold the Act inapplicable to employees
engaged in repairing and servicing radio and radar equipment on United States
war vessels. It seems to us that this distinction was in effect disapproved in
Powell v. United States Cartridge Co., 1950, 339 U.S. 497, 70 S.Ct. 755, 759,
94 L.Ed. 1017.
Admittedly the Congress cannot by definition enlarge the meaning of the

'commerce' clause of the Constitution, which remains the statutory basis of the
Fair Labor Standards Act. It is true that 'commerce' is defined in the Act as
meaning 'trade, commerce, transportation, transmission, or communication
among the several States or between any State and any place outside thereof.'
29 U.S.C.A. 203(b). The employees in the Powell case were engaged in the
manufacture of munitions, which were destined to be shipped abroad and
consumed by the United States, not sold in any commercial transaction. This
was held to be 'transportation,' and thus 'commerce,' despite the lack of a
commercial element. We cannot see that it makes any difference that the
Powell case considered the phrase 'the production of goods for commerce' in
the statute rather than 'engaged in commerce.' In effect that case overruled
Divins v. Hazeltine Electronics Corp., supra, 163 F.2d 100.
In our Circuit, Nieves v. Standard Dredging Corp., 1 Cir., 1945, 152 F.2d 719,
720, had to do with employees engaged in constructing a graving dock as part
of Roosevelt Roads Naval Base in Puerto Rico. If the distinction had been
sound between war and commercial purposes, we would have had an easy way
to deny coverage in that case; instead we held that the employees were not
engaged 'in commerce' because they were not doing work 'so closely related to
the movement of the commerce as to be a part of it,' as was stated in McLeod v.
Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538.
We agree with the decision of the Fifth Circuit in Mitchell v. Empire Gas
Engineering Co., 1958, 256 F.2d 781, 784-785, that if the employees' activities
otherwise involve them in interstate commerce, the Fair Labor Standards Act
applies to them even though the action is carried on by the government.
In No. 5741, the employees concerned were building hangar facilities, a fire
pumping station, and a water storage tank at an existing United States Naval
Air Station. In No. 5747, the employees were constructing a transmitter
building, a communications center building, a receiver building, three power
plants, all support buildings and utilities which, when finished, were to take
their place as a communications relay center of the Army Communications
Administrative Network. We do not think it is material, but the stipulated facts
state that the facilities in both cases related solely to the government's war effort
and so far as appears were never to be used for commercial purposes.
In No. 5741, it is stipulated in part that: '1. The hangar facilities are essential to
the functioning of the aviation facilities of the base. 2. Military air transports
occasionally bring in to Puerto Rico from the mainland, marine support
personnel to Vieques for maneuvers. Since there are no adequate aircraft
facilities on Vieques, the planes stop at Roosevelt Roads for refueling and crew
rest prior to returning to the U.S.' The recitations in the stipulation do not
contain so much detail as might be desired, but we cannot believe that the
operation of the air base did not include fairly extensive shuttling of planes back
and forth between the mainland and Puerto Rico.
The stipulation and the testimony of one witness in No. 5747 give a complete
presentation of the operations of the communications center which, when
completed, will engage in world-wide reception and transmission of meassages.
The employees were engaged in constructing the buildings, not in installing the
radio equipment. No doubt, the radio relay station which they were building
was admittedly 'new construction'; but the distinction between new construction
and repairs has been expressly rejected by the Supreme Court as a
determinative touchstone whereby to decide the coverage of the Act. See
Mitchell v. C. W. Vollmer & Co., Inc., 1955, 349 U.S. 427, 75 S.Ct. 860, 99
L.Ed. 1196, and Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310, 313, 80
S.Ct. 739, 4 L.Ed.2d 753. Within the meaning of McLeod v. Threlkeld, supra,
319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538, it seems to us that the labor of
those employed in construction of the facilities at the communications relay
station was certainly as closely related to commerce, if not more so, than that of
the designers and draftsmen in Mitchell v. Lublin, McGaughy & Associates,
1959, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243.
There were two contracts being performed by the defendant in No. 5747. But
there is no real distinction between the activities of the employees under
contract No. 1, calling for the construction of the technical buildings and the
power plant, and contract No. 2, calling for the erection of support buildings
and utilities. According to the testimony below, all these facilities were an
'integral part' of the whole project. The construction work here should be
regarded as an entirety, and not broken down into its component parts. Archer
v. Brown & Root, Inc., 5 Cir., 1957, 241 F.2d 663. See Bennett v. V. P. Loftis
Co., 4 Cir., 1948, 167 F.2d 286, 288.
10
Finally, it has been contended that the injunction should not be issued in No.
5747 because the work called for under the contracts has been completed. This
court is not in a position to determine whether there is any 'reasonable
expectation that the wrong will be repeated,' see United States v. W. T. Grant
Co., 1953, 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303, quoting from
United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 448;
but the parties will be free to make that contention on remand.
11
The judgments of the District Court will be vacated and the cases remanded to
that Court for further proceedings not inconsistent with this opinion.
Sitting by designation

United States Court of Appeals First Circuit

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291 F.

Arthur J. GOLDBERG, Secretary of Labor, United States

United States Court of Appeals First Circuit.

Beate Bloch, Attorney, Washington, D.C., with whom Harold C. Nystrom,

Admittedly the Congress cannot by definition enlarge the meaning of the

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