H.B. Deal Co., Inc. v. Leonard , 210 Ark. 512 ( 1946 )

I respectfully dissent from the majority holding as to all of the appellees except John Allen Upton whose work apparently did not in any manner pertain to the production or movement of goods in interstate commerce.

The duties of appellees, George G. Leonard, Charles E. May, Albert C. Merritt, Aubrey O. Fielder and Clarence T. Key, were to check inbound shipments of material, consigned to their employer. They did this work by inspecting the freight as it was unloaded from the railroad cars or from the trucks. As one of the appellees put it: "I performed these duties as the materials were being unloaded from the railroad cars and trucks." More than half of these shipments originated outside the state of Arkansas. The checking was not done after delivery of the freight to their employer, but while such delivery was being effected. Therefore, when their work was performed the movement of the goods from point of origin outside of Arkansas to consignee was still incomplete.

Even if those employees of appellant who were actually engaged in construction should be held not to be engaged in work of an interstate nature, it does not follow that all of appellees were excluded from the benefits of the Fair Labor Standards Act. The interpretative bulletin of the Wage and Hour Division of the Department of Labor (Bulletin No. 5, paragraph 12), which is quoted in the majority opinion, while it states that the employees engaged in the original construction of buildings are not generally within the scope of the Act, concludes thus: "There may be particular employees of such construction contractors, however, who engage in the interstate transportation of materials or other forms of interstate commerce and are for that reason entitled to the benefits of the Act." "The fact that all of respondent's business is not shown to have an interstate character is not important. The applicability of the Act is dependent on the character of the employees' work. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. 1638. If a substantial part of an employee's activities related to goods whose movement in the channels of interstate commerce was established by the test we have described he is covered by the Act." Walling v. Jacksonville Paper Company, 317 U.S. 564,63 S. Ct. 332, 87 L. Ed. 460.

It seems to me that these checkers were engaged in work that was essentially a part of interstate commerce as defined in various decisions of the Supreme Court of the United States. The same kind of work as that involved here was held to be subject to the Fair Labor Standards Act in the case of Walling v. Goldblatt Bros., Inc.,128 F.2d 778, certiorari denied 318 U.S. 757, 63 S. Ct. 528,87 L. Ed. 1130. I think the reasoning of the opinion in that case and the authorities cited therein control here.

The contention that the Fair Labor Standards Act does not apply in the case at bar because the appellant was performing a contract for the United States Government is, in my opinion, completely answered by the opinion of the supreme court of Iowa in the case of Umthun v. Day Zimmerman, Inc., 235 Iowa 293, 16 N.W.2d 258.

I am authorized to state that Mr. Justice MILLWEE concurs in the views expressed above.