Employees engaged in the construction of the Algiers Lock and
Canal, in Orleans Parish, Louisiana, which will form part of the
Gulf Intracoastal Waterway (extending from Florida to the Mexican
border), and which was designed as an alternate route to an
inadequate existing lock and canal, are "engaged in commerce"
within the meaning of § 7 of the Fair Labor Standards Act; and the
40-hour week and overtime provisions of the Act are applicable to
them. Pp. 349 U. S.
(a) Raymond v. Chicago, M. St.P. R. Co., 243 U. S.
, distinguished. Pp. 349 U. S.
(b) Whether an employee is "engaged in commerce" within the
meaning of § 7 of the Fair Labor Standards Act is determined by
practical considerations, not by technical conceptions. P.
349 U. S.
(c) The test of whether an employee is "engaged in commerce"
within the meaning of the Act 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. P. 349 U. S.
(d) The work of improving existing facilities of interstate
commerce, involved here, is activity "in commerce" within the
meaning of the Act. P. 349 U. S.
214 F.2d 132 reversed.
Page 349 U. S. 428
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner brought this suit under § 17 of the Fair Labor
Standards Act, 52 Stat. 1060, as amended, 63 Stat. 910, 29 U.S.C. §
201 et seq.,
to enjoin respondent from violating §
15(a)(2) and § 15(a)(5) of the Act. Those sections make unlawful
violation of § 7 and § 11(c) of the Act. Section 7 requires one and
a half times the regular rate of pay for work in excess of 40 hours
a week; and § 11(c) requires the keeping of the records that are
prescribed by regulations. 29 CFR, 1954 Cum.Supp., § 516.1 et
The contention is that respondent's violations of § 7 and
§ 11(c) relate to work performed in the construction of an
earthwork embankment and concrete platform for the Algiers Lock in
Orleans Parish, Louisiana, a unit in the Gulf Intracoastal
Waterway, extending from Florida to the Mexican border. The Algiers
Lock is designed to furnish better passage into and across the
Mississippi than is provided by the present Harvey Lock and
Respondent concedes that some of its employees on the Algiers
Lock were employed for more than 40 hours per week without payment
for overtime. Its defense is that its employees working on the
Algiers Lock were not engaged in interstate commerce, and thus were
not covered by the Act. [Footnote
The evidence at the trial was primarily directed to the question
whether those working on the Algiers Lock were engaged in commerce
within the meaning of § 7 of the Act. As already noted, the Algiers
Lock will form part of the Gulf Intracoastal Waterway. It is
designed to serve as an alternate route to the Harvey Lock and
Canal. Relying on our decision in Raymond v.
Chicago, M. & St.P. R.
Page 349 U. S. 429
Co., 243 U. S. 43
District Court held that respondent's employees were not engaged in
commerce and denied injunctive relief. 113 F. Supp. 235. The Court
of Appears for the Fifth Circuit affirmed per curiam. 214 F.2d 132.
To resolve an apparent conflict with Tobin v. Pennington-Winter
198 F.2d 334, we granted certiorari. 348 U.S.
Section 7 of the Act makes the 40-hour week and the overtime
provisions applicable to the Algiers Lock and Canal project if the
respondent's employees at work on it are "engaged in commerce." It
is argued that they are not engaged "in commerce," since the
Algiers Lock is new construction, and therefore in the category of
the new tunnel that was being constructed in Raymond v.
Chicago, M. & St.P. R. Co., supra.
In the latter case, the
Court held that an employee at work on a new tunnel for an
interstate carrier was not subject to the Federal Employers'
Liability Act, even though the tunnel, when completed, would be an
We do not think that case should control this one. We are
dealing with a different Act of another vintage -- one that has
been given a liberal construction from Kirschbaum Co. v.
Walling, 316 U. S. 517
Alstate Construction Co. v. Durkin, 345 U. S.
. The question whether an employee is engaged "in
commerce" within the meaning of the present Act is determined by
practical considerations, not by technical conceptions. See
Walling v. Jacksonville Paper Co., 317 U.
, 317 U. S. 570
Overstreet v. North Shore Corp., 318 U.
, 318 U. S. 128
318 U. S. 130
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. See McLeod v. Threlkeld,
319 U. S. 491
319 U. S. 497
Repair of facilities of interstate commerce is activity "in
commerce" within the meaning of the Act as we held in
Fitzgerald Const. Co. v.
Page 349 U. S. 430
U.S. 720. And we think the work of improving existing facilities
of interstate commerce, involved in the present case, falls in the
same category. [Footnote 2
The Gulf Intracoastal Waterway is an existing instrumentality of
commerce. Without Algiers Lock, it has proved inadequate where it
crosses the Mississippi. Harvey Lock cannot handle the traffic. Use
of Harvey Lock entails travel through some five miles of the New
Orleans harbor, already heavy with traffic. It is impractical to
widen Harvey Lock, because it is located in a highly developed
industrial section of New Orleans. Algiers Lock is conceived as the
practical alternative for relieving the congestion of the Waterway
at this point. See
S. Doc. No. 188, 78th Cong., 2d Sess.,
pp. 1-4. The work on Algiers Lock seems to us to have as intimate a
relation to improvement of navigation on the Waterway as the
dredging of Harvey Lock would have. It is part of the redesigning
of an existing facility of interstate commerce. Those working on
the Algiers Lock are therefore "engaged in commerce" within the
meaning of § 7 of the Act.
MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.
The only question presented and argued here concerns § 7 of the
The construction work held in Murphey v. Reed,
865, not to be under the Act was the building of a Navy base, not
the improvement of a facility or instrumentality of interstate
MR. JUSTICE MINTON, with whom MR. JUSTICE FRANKFURTER joins,
Only injunctive relief is sought here by the Secretary of Labor
to prevent the violation of §§ 7 and 15(a)(2) and §§ 11(c) and
15(a)(5) of the Fair Labor Standards Act, 29 U.S.C. § 201 et
which require the payment
Page 349 U. S. 431
by employers of extra pay for overtime work and the keeping of
records by them. 29 U.S.C. § 207(a) provides:
". . . [N]o employer shall employ any of his employees who is
engaged in commerce or in the production of goods for commerce for
a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the
regular rate at which he is employed."
It is contended that the respondent and its employees who were
constructing this cutoff canal were "engaged in commerce." If they
were not so engaged, an injunction will not lie. This presents a
question of statutory construction in light of legislative,
administrative, and judicial considerations.
The Federal Employers' Liability Act, 45 U.S.C. § 51 et
provides that every railway common carrier while engaged
in interstate commerce shall be liable in damages to any employee
engaged in such commerce who suffers injury resulting from the
negligence of the carrier. If the employee was not himself engaged
in commerce, there can be no recovery under the Act.
In Raymond v. Chicago, M. & St.P. R. Co.,
243 U. S. 43
company was engaged in the operation of a railroad between Chicago
and Seattle. Its existing route went around the mountains, and the
railroad sought to tunnel through the mountains. While constructing
this tunnel, Raymond was injured, and sued the railroad under the
Federal Employers' Liability Act, claiming he was engaged in
commerce when injured by the railroad's negligence. This Court held
that Raymond was not engaged in commerce while working on the
construction of this cutoff tunnel, because its use in commerce was
Page 349 U. S. 432
contemplated after completion. That is the exact situation here
with reference to this canal.
In New York Central R. Co. v. White, 243 U.
, a railroad was constructing a new station
alongside its interstate line. White was a night watchman employed
at the site of this new construction, and was killed. His
representative sued under the Federal Employers' Liability Act,
claiming that he was engaged in commerce, but this Court held that
he was not engaged in commerce as he went about his duties at the
site of this new construction.
In the interpretation and application of the Fair Labor
Standards Act, the federal courts have adopted the rule of the
cases, which arose under the
Federal Employers' Liability Act. A prerequisite to the application
of either Act was that the employee be engaged in commerce. This
rule came to be known as the "new construction rule," and was
applied by this Court in Murphey v. Reed,
335 U.S. 865. It
was also applied by the First Circuit in Nieves v. Standard
152 F.2d 719, where the employer was dredging
a channel for navigation in a previously nonnavigable stream. The
Second Circuit, in Scholl v. McWilliams Dredging Co.,
F.2d 729, applied the rule where the employer was engaged in the
construction of a new air base in Greenland that had not yet been
used in foreign commerce. The Third Circuit applied the rule in
Kelly v. Ford, Bacon & Davis, Inc.,
162 F.2d 555,
where the employer was engaged in building a new plant for the
construction of aircraft engines later to be used in commerce, but
which plant was only an additional facility for such work. It was
held in this case that the employer was not only not engaged in
commerce, but it was not engaged in the production of goods for
commerce. The Fifth Circuit, in another case beside the one under
Page 349 U. S. 433
the rule of new construction to the building of an expressway
which, when completed, would have routed over it several interstate
highways. Van Klaveren v. Killian-House Co.,
210 F.2d 510.
The Sixth Circuit, in Koepfle v. Garavaglia,
200 F.2d 191,
applied the rule to another case of new construction of an
expressway to be later integrated into a highway system. The Eighth
Circuit, in Crabb v. Welden Bros.,
164 F.2d 797, applied
the rule in the construction of the Alcan Highway. The Tenth
Circuit, in Moss v. Gillioz Const. Co.,
206 F.2d 819,
similarly applied the rule in the construction of a new bridge at
51st Street, south of Tulsa, Oklahoma, over which interstate
traffic then using the 11th Street Bridge could be routed.
The agencies responsible for the administration of the Act had
interpreted it as not applying to new construction not yet used in
interstate commerce. Wage and Hour Interpretative Bulletin No. 5,
12, Dec. 2, 1938; BNA, 1944-1945 WH Man. 23:
"The question arises whether the employees of builders and
contractors are entitled to the benefits of the Act. The employees
of local construction contractors generally are not engaged in
interstate commerce, and do not produce any goods which are shipped
or sold across state lines. Thus, it is our opinion that employees
engaged in the original construction of buildings are not generally
within the scope of the Act even if the buildings, when completed,
will be used to produce goods for commerce. . . ."
In the Wage Hour Manual, Bureau of National Affairs Labor
Relations Reporter, Vol. 6, 10:237, the rule is interpreted as
"In interpreting the Act's application to employers in the
building and construction industry, the Wage
Page 349 U. S. 434
and Hour Division and the courts have drawn a distinction
between the original construction of buildings or facilities and
their repair or reconstruction."
We are not dealing here with improving or repairing existing
facilities which are already in commerce, but with new construction
that has never been used in commerce.
It seems, therefore, that the Secretary of Labor has quite
recently changed his mind about the application of the Act to new
construction not yet used or not an integral part of interstate
commerce. His change of mind should not change the law. This Court,
which may change the law, seems to have changed its mind about the
same time and without saying why it does so, except that the
foregoing cases are of a different vintage. I am unable to
distinguish the cases on the vintage test. Without overruling the
decisions and the
number of cases decided by the Circuit Courts, this Court brushes
them off as of another vintage.
Reliance upon this Court's opinions becomes a hazardous business
for lawyers and judges, not to mention contractors, who are not
familiar with the vintage test.