Title 29
SECTION 776.11
776.11 Employees doing work related to instrumentalities of commerce.
§ 776.11 Employees doing work related to instrumentalities of commerce.(a) Another large category of employees covered as “engaged in commerce” is comprised of employees performing the work involved in the maintenance, repair, or improvement of existing instrumentalities of commerce. (See the cases cited in footnote 28 to § 776.9. See also the discussion of coverage of employees engaged in building and construction work, in subpart B of this part.) Typical illustrations of instrumentalities of commerce include railroads, highways, city streets, pipe lines, telephone lines, electrical transmission lines, rivers, streams, or other waterways over which interstate or foreign commerce more or less regularly moves; airports; railroad, bus, truck, or steamship terminals; telephone exchanges, radio and television stations, post offices and express offices; bridges and ferries carrying traffic moving in interstate or foreign commerce (even though within a single State); bays, harbors, piers, wharves and docks used for shipping between a State and points outside; dams, dikes, revetments and levees which directly facilitate the uninterrupted movement of commerce by enhancing or improving the usefulness of waterways, railways, and highways through control of water depth, channels or flow in streams or through control of flood waters; warehouses or distribution depots devoted to the receipt and shipment of goods in interstate or foreign commerce; ships, vehicles, and aircraft regularly used in transportation of persons or goods in commerce; and similar fixed or movable facilities on which the flow of interstate and foreign commerce depends.
(b) It is well settled that the work of employees involved in the maintenance, repair, or improvement of such existing instrumentalities of commerce is so closely related to interstate or foreign commerce as to be in practice and in legal contemplation a part of it. Included among the employees who are thus “engaged in commerce” within the meaning of the Act are employees of railroads, telephone companies, and similar instrumentalities who are engaged in maintenance-of-way work; 36 employees (including office workers, guards, watchmen, etc.) engaged in work on contracts or projects for the maintenance, repair, reconstruction or other improvement of such instrumentalities of commerce as the transportation facilities of interstate railroads, highways, waterways, or other interstate transportation facilities, or interstate telegraph, telephone, or electrical transmission facilities (see subpart B of this part); and employees engaged in the maintenance or alteration and repair of ships 37 or trucks 38 used as instrumentalities of interstate or foreign commerce. Also, employees have been held covered as engaged in commerce where they perform such work as watching or guarding ships or vehicles which are regularly used in commerce 39 or maintaining, watching, or guarding warehouses, railroad or equipment yards, etc., where goods moving in interstate commerce are temporarily held, 40 or acting as porters, janitors, or in other maintenance capacities in bus stations, railroad stations, airports, or other transportation terminals. 41
36 Davis v. Rockton & Rion R.R., 65 F. Supp. 67 affirmed in 159 F. 2d 291 (C.A. 4); North Shore Corp. v. Barnett, 143 F. 2d 172 (C.A. 5); Palmer v. Howard, 12 Lab. Cas. (CCH) par. 63, 756 (W.D. Tenn.); Williams v. Atlantic Coast Lines R.R. Co., 1 W.M. Cases 289 (E.D. N.C. 1940), 2 Labor Cases (CCH) par. 18, 564.
37 Slover v. Wathen, 140 F. 2d 258 (C.A. 4); Walling v. Keansburg Steamboat Co., 162 F. 2d 405 (C.A. 3).
38 Boutell v. Walling, 327 U.S. 463; Morris v. McComb, 332 U.S. 422; Skidmore v. John J. Casale, Inc., 160 F. 2d 527 (C.A. 2), certiorari denied 331 U.S. 812; Hertz Drivurself Stations v. United States, 150 F. 2d 923 (C.A. 8); Walling v. Sturm & Sons, Inc., 6 W.H. Cases 131 (D.N.J.) 10 Labor Cases (CCH) par. 62, 980.
As to exemptions from the overtime requirements for mechanics employed by motor carriers, see part 782 of this chapter. For exemptions applicable to retail or service establishments, see part 779 of this chapter.
39 Slover v. Wathen, 140 F. 2d 258 (C.A. 4); Agosto v. Rocafort, 5 W.H. Cases 176 (D.P.R.), 9 Labor Cases (CCH) par. 62, 610; Cannon v. Miller, 155 F. 2d 500 (S. Ct. Wash.).
40 Engebretson v. E. J. Albrecht Co., 150 F. 2d 602 (C.A. 7); Mid-Continent Petroleum Corp. v. Keen, 157 F. 2d 310 (C.A. 8); Walling v. Mutual Wholesale Food & Supply Co., 141 F. 2d 331 (C.A. 8); Walling v. Sondock, 132 F. 2d 77 (C.A. 5); certiorari denied 318 U.S. 772; Reliance Storage & Insp. Co. v. Hubbard, 50 F. Supp. 1012 (W.D. Va.); Walling v. Fox-Pelletier Detective Agency, 4 W.H. Cases 452 (W.D. Tenn. 1944); 8 Labor Cases (CCH) par. 62, 219; McComb v. Russell Co., 9 W.H. Cases 258 (D. Miss. 1949), 17 Labor Cases (CCH) par. 65, 519.
41 Mornford v. Andrews, 151 F. 2d 511 (C.A. 5); Hargis v. Wabash R. Co. 163 F. 2d 607 (C.A. 7); Walling v. Atlantic Greyhound Corp., 61 F. Supp. 992 (E.D. S.C.); Rouch v. Continental Oil Co., 55 F. Supp. 315 (D. Kans.); see also Williams v. Jacksonville Terminal Co., 315 U.S. 386.
(c) On the other hand, work which is less immediately related to the functioning of instrumentalities of commerce than is the case in the foregoing examples may be too remote from interstate or foreign commerce to establish coverage on the ground that the employee performing it is “engaged in commerce.” This has been held true, for example, of a cook preparing meals for workmen who are repairing tracks over which interstate trains operate, 42 and of a porter caring for washrooms and lockers in a garage which is not an instrumentality of commerce, where trucks used both in intrastate and interstate commerce are serviced. 43
42 McLeod v. Threlkeld, 319 U.S. 491.
43 Skidmore v. John J. Casale, Inc., 160 F. 2d 527, certiorari denied 331 U.S. 812 (use in interstate commerce of trucks serviced was from 10 to 25 percent of total use).
(d) There are other situations in which employees are engaged “in commerce” and therefore within the coverage of the Act because they contribute directly to the movement of commerce by providing goods or facilities to be used or consumed by instrumentalities of commerce in the direct furtherance of their activities of transportation, communication, transmission, or other movement in interstate or foreign commerce. Thus, for example, employees are considered engaged “in commerce” where they provide to railroads, radio stations, airports, telephone exchanges, or other similar instrumentalities of commerce such things as electric energy, 44 steam, fuel, or water, which are required for the movement of the commerce carried by such instrumentalities. 45 Such work is “so related to the actual movement of commerce as to be considered an essential and indispensable part thereof, and without which it would be impeded or impaired.” 46
44 New Mexico Public Service Co. v. Engel, 145 F. 2d 636 (C.A. 10); Walling v. Connecticut Co., 154 F. 2d 552 (C.A. 2).
45 Such employees would also be covered as engaged in the production of goods for commerce. See Lewis v. Florida Power & Light Co., 154 F. 2d 751 (C.A. 5); Walling v. Connecticut Co., 154 F. 2d 552 (C.A. 2); also § 776.21(b).
46 New Mexico Public Service Co. v. Engel, 145 F. 2d 636, 640 (C.A. 10).