Opinion
No. 74-405
Decided June 10, 1975. Rehearing denied June 8, 1975.
Action for overtime pay by draftsman alleging that his employment was covered by Federal Fair Labor Standards Act. Trial court determined plaintiff's employment was not so covered and dismissed action. Plaintiff appealed.
Reversed
1. MASTER AND SERVANT — Federal Fair Labor Standards Act — Draftsman — Inter-State Work — Employment Covered. Where in action for overtime pay, chief draftsman of consulting engineering firm testified without contradiction that he was paid on an hourly basis, that his overtime wages were broken down on a week by week basis, that he worked on projects on construction sites in other states, that, on occasion, it was necessary for him to travel to the job sites to inspect work in progress, and that he used the mail, telephone, buses, and airplanes to deliver and receive information and plans for his employer, the draftsman's employment was covered by the Federal Fair Labor Standards Act; and therefore he should have been paid at the rate of "time and a half" for the overtime work performed by him.
Appeal from the District Court of Logan County, Honorable Dean Johnson, Judge.
Arnold, Ross Leh, Baxter W. Arnold, for plaintiff-appellant.
Kluver Wilson, P.C., Max A. Wilson, for defendant-appellee.
William J. Kilberg, Solicitor of Labor, Carin Ann Clauss, Associate Solicitor, Donald S. Shire, Paul D. Brenner, for Amicus Curiae United States Department of Labor.
Plaintiff, Marlin D. Yarmer, sued his former employer, Richard Weingardt Associates, for overtime pay in the amount of $1,500, claiming that his employment was covered by the provisions of the Fair Labor Standards Act (F.L.S.A.) and that, therefore, he should have been paid at the rate of "time and a half" for the overtime work performed by him. The trial court found that the F.L.S.A. did not apply to him and denied recovery. He appeals. We reverse.
By virtue of 29 U.S.C. § 216(b), the federal and state courts have concurrent jurisdiction.
Yarmer was employed by the defendant, a consulting engineering company with offices in Sterling, Colorado, as a draftsman from June 1968 to February 1972. His most recent employment there was as chief draftsman. In that position he supervised several other draftsmen. The company's work consisted of providing to architects, and others involved in construction work, structural designs for proposed buildings. Plans, letters, specifications, reports, and drawings were supplied to the client who used them for bidding and working on jobs. The clients were located in Colorado and Nebraska, and the projects to which the plans related were located in those and other states.
Yarmer's testimony and documentary evidence at trial showed that he was paid on an hourly basis, that his overtime hours were broken down on a week-by-week basis, that he worked on projects with construction sites in other states, and that, on occasion, it was necessary for him to travel to the job sites to inspect work in progress. He also testified that he used the mail, telephone, buses, and airplanes to deliver and receive information and plans for his employer. This evidence was uncontradicted.
The trial court found that the plans and specifications prepared by the defendant for its clients were not "goods" within the meaning of the F.L.S.A., that the defendant is not an enterprise "engaged in the production of goods for commerce" as defined in the F.L.S.A., and that plaintiff as an employee of the defendant was not therefore within the coverage of the F.L.S.A. We disagree.
The Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq. (1970), regarding the question of what constitutes the "production of goods for commerce," has been interpreted both by the federal regulations promulgated under that act, see 29 C.F.R. § 776 (1974), and by the federal courts. The F.L.S.A., § 203 defines the pertinent terms as follows:
"(b) 'Commerce' means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.
. . . .
"(i) 'Goods' means goods . . . wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof . . . .
"(j) 'Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State."
In 29 C.F.R. § 776.9, covered employees are defined as those "doing work involving or related to the movement of persons or things (whether tangibles or intangibles, and including information and intelligence) 'among the several States or between any State and any place outside thereof.'" The regulations also state that an employee is covered if, in the course of his employment, he regularly uses interstate mail, telephone, or a similar instrumentality for communication across state lines in regard to information, written reports, orders for goods or services, or plans or other documents. 29 C.F.R. § 776.10.
The above interpretation is in accordance with that given by the federal courts. In Wirtz v. Koch, 301 F. Supp. 957 (D.S.D.), the court held that "architectural plans, drawings and blueprints herein involved are 'goods' within the meaning of section 3(i) of the Act." Further, in Craig v. Far West Engineering Co., 265 F.2d 251 (9th Cir.), cert. denied, 361 U.S. 816, 80 S.Ct. 57, 4 L.Ed.2d 63; it was held that employees performing draftsmen's work on plans, drawings and designs sent out of state were engaged in the production of goods for commerce. See also Schultz v. Merriman, 425 F.2d 228 (1st Cir.); White v. Wirtz, 402 F.2d 145 (10th Cir.); 29 C.F.R. §§ 776.2 and 776.3.
Also, in Mitchell v. Lublin, McGaughy Associates, 358 U.S. 207, 79 S. Ct. 260, 3 L.Ed.2d 243, the United States Supreme Court (reversing a lower court decision, Mitchell v. Lublin, McGaughy Associates, 250 F.2d 253 (4th Cir.)), was confronted with a fact situation similar to the instant case, and held that the activities of the employee, not the employer, were of paramount importance in the determination of whether the employee was engaged in interstate commerce. There the employer was an architectural and consulting engineering firm that employed draftsmen, fieldmen, clerks, and secretaries to work on the plans and specifications used in construction of multi-state facilities. The court said that:
"In our modern, technologically oriented society, the elements which combine to produce a final product are diffuse and variegated. Deciding whether any one element is so directly related to the end product as to be considered vital is sometimes a difficult problem. But plans, drawings and specifications have taken on greater importance as the complexities of design and bidding have increased. Under the circumstances present here, we have no hesitancy in concluding that the preparation of the plans and specifications was directly related to the end products and that the employees whose activities were intimately related to such preparation were 'engaged in commerce.'"
[1] We have considered defendant's other contentions on this issue and find them to be without merit. Therefore, based on the uncontroverted facts in evidence, we hold that Yarmer's employment was covered by the F.L.S.A. However, we do not reach the issues of liquidated damages, attorney's fees, and applicable statute of limitations on this appeal, since the trial court made no findings or conclusions on these issues.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
JUDGE RULAND and JUDGE VAN CISE concur.