(a) Typical examples. Instrumentalities and channels which serve as
the media for the movement of goods and persons in interstate commerce
or for interstate communications include railroads, highways, city
streets; telephone, gas, electric and pipe line systems; radio and
television broadcasting facilities; rivers, canals and other waterways;
airports; railroad, bus, truck
or steamship terminals; freight depots, bridges, ferries, bays, harbors,
docks, wharves, piers; ships, vehicles and aircraft which are regularly
used in interstate commerce. 31
---------------------------------------------------------------------------
31 General coverage bulletin, Sec. 776.11.
---------------------------------------------------------------------------
(b) General character of an instrumentality of interstate commerce.
(1) An instrumentality of interstate commerce need not stretch across
State lines but may operate within a particular State as a link in a
chain or system of conduits through which interstate commerce moves.
32 Obvious examples of such facilities are railroad
terminals, airports which are components of a system of air
transportation, bridges and canals. A facility may be used for both
interstate and intrastate commerce but when it is so used it is
nonetheless an interstate instrumentality. Such double use does not
exclude construction employees from being engaged in commerce.
---------------------------------------------------------------------------
32 Mitchell v. Vollmer, ante; Bennett. v. V. P. Loftis,
167 F. (2d) 286 (C.A. 4); Overstreet v. North Shore Corp., ante; Rockton
& Rion R. R. v. Walling, 146 F. (2d) 111, certiorari denied 324 U.S.
880; National Labor Relations Board v. Central Missouri Tel. Co., 115 F.
(2d) 563 (C.A. 8).
---------------------------------------------------------------------------
(2) The term instrumentality of interstate commerce may refer to one
unit or the entire chain of facilities. An instrumentality such as a
railroad constitutes a system or network of facilities by which the
interstate movement of goods and persons is accomplished. Each segment
of the network is integrally connected with the whole and must be viewed
as part of the system as a whole, not as an isolated local unit.
(3) A construction project which changes the interstate system as a
whole, or any of its units, would have a direct bearing on the flow of
interstate commerce throughout the network. Thus, the new construction
of an alternate route or an additional unit which alters the system or
any segment of it, would have such a direct and vital relationship to
the functioning of the instrumentality of interstate commerce as to be,
in practical effect, a part of such commerce rather than isolated local
activity. For example, such construction as the maintenance, repair,
replacement, expansion, enlargement, extension, reconstruction,
redesigning, or other improvement, of a railroad system as a whole, or
of any part of it, would have a close and intimate relationship with the
movement of goods and persons across State lines. All such construction,
therefore, is subject to the Act.
(4) The same would be true with respect to other systems of
interstate transportation or communication such as roads, waterways,
airports, pipe, gas and electric lines, and ship, bus, truck, telephone
and broadcasting facilities. Consequently, construction projects for
lengthening, widening, deepening, relocating, redesigning, replacing and
adding new, substitute or alternate facilities; shortening or
straightening routes or lines; providing cutoffs, tunnels, trestles,
causeways, overpasses, underpasses and bypasses are subject to the Act.
Furthermore, the fact that such construction serves another purpose as
well as the improvement of the interstate facility, or that the
improvement to the interstate facility was incidental to other non-
covered work, would not exclude it from the Act's coverage. 33
---------------------------------------------------------------------------
33 Tobin v. Pennington-Winter Const. Co., ante; Oklahoma v.
Atkinson Co., 313 U.S. 508; Cuascut v. Standard Dredging Corp., 94 F.
Supp. 197.
---------------------------------------------------------------------------
(c) Examples of construction projects which are subject to the Act.
Coverage extends to employees who are engaged on such work as repairing
or replacing abutments and superstructures on a washed out railroad
bridge; 34 replacing an old highway bridge with a new one at
a different location; 35 removing an old railroad bridge and
partially rebuilding a new one; repairing a railroad roundhouse, signal
tower, and storage building; relocating portions of a county road;
erecting new bridges with new approaches in different locations from the
old ones; widening a city street; relocating, improving or extending
interstate telephone facilities including the addition of new conduits
and new trunk lines. 36 Also within the scope of the Act are
employees who are engaged in the construction, maintenance and
repair of ships, barges and other vessels used for interstate commerce,
including those belonging to the Government, 37 and
facilities used in the production and transmission of electric, fuel,
water, steam and other powers to instrumentalities of interstate
commerce. 38
---------------------------------------------------------------------------
34 Pedersen v. J. F. Fitzgerald, 318 U.S. 740.
35 Bennett v. V. P. Loftis Co., 167 F. (2d) 286 (C.A. 4).
36 Walling v. McCrady Const. Co., ante.
37 Divins v. Hazeltine Electronics Corp., 163 F. (2d) 100
(C.A. 2); Cf. Walling v. Haile Gold Mines, Inc., 136 F. (2d) 102 (C.A.
4).
38 New Mexico Public Service Co. v. Engel, ante; Lewis v.
Florida Light & Power Co., ante; Mitchell v. Mercer Water Co., 208 F.
(2d) 900 (C.A. 3); Mitchell v. Brown Engineering Co., ante.
---------------------------------------------------------------------------
(d) Construction of new facilities. (1) In a case before the United
States Supreme Court, the question was presented whether the Act applied
to the construction of a new canal at some distance from the one then in
use. The new canal was to be an alternate route for entering the
Mississippi River and would relieve traffic congestion in the existing
canal. The latter would continue in operation but could not be widened
because of its location in a highly developed industrial section of New
Orleans. The Court in holding the construction of the new canal to be
within the coverage of the Act stated that the new construction was as
intimately related to the improvement of navigation on the Gulf
Intercoastal Waterway as dredging in the existing canal would be and
that the project was ``part of the redesigning of an existing facility
of interstate commerce.'' 39 Thus the construction of a new
facility in a network of instrumentalities of interstate commerce, in
order to serve the system, or to function as an alternate route, or to
relieve traffic congestion in another unit, or to replace an outmoded
facility, is subject to the Act.
---------------------------------------------------------------------------
39 Mitchell v. Vollmer & Co., ante; see also Bennett v.
V. P. Loftis, ante.
---------------------------------------------------------------------------
(2) Similarly, the construction of a new unit, such as a new airport
which is an addition to the entire interstate system of air
transportation although not physically attached to any other unit,
would, as a practical matter, necessarily expand, promote and facilitate
the movement of interstate commerce over the airway system, and
consequently, would be subject to the Act. In such a situation the
interstate system, although composed of physically separate local units,
is, as a whole, the instrumentality of commerce which is improved. In
most cases such an addition would also directly enhance, improve or
replace some particular nearby unit in the interstate network. The new
addition would thus relieve traffic congestion and facilitate the
interstate movement of commerce over the existing instrumentality as a
whole, as well as at the particular nearby units. The same principle
would apply to highways, turnpikes and similar systems of interstate
facilities.
(3) In like manner, the reconstruction, extension or expansion of a
small unit in a system of interstate facilities, such as the enlargement
of a small airport which is regularly used for interstate travel or
transportation, is covered, regardless of the relative sizes of the
original unit and the new one. The construction in such situations
facilitates and improves the interstate commerce served by, and is
directly related to the continued, efficient and effective operation of,
both the particular original unit and the interstate system as a whole.
Also, the construction of facilities such as hangars, repair shops and
the like at a covered airport, which are ``directly and vitally related
to the functioning'' of the instrumentality of commerce, would be
subject to the Act. 40
---------------------------------------------------------------------------
40 Mitchell v. Vollmer & Co., ante.
---------------------------------------------------------------------------
(e) Construction on waterways. Courts have consistently held that
the engagement in interstate commerce includes the maintenance, repair
or improvement of navigable waterways even when the construction work is
performed on the non-navigable parts of the instrumentality such as at
the headwaters and watersheds or in tributary streams. 41
---------------------------------------------------------------------------
41 Tobin v. Pennington-Winter Const. Co., ante; Oklahoma v.
Atkinson Co., ante; United States v. Appalachian Power Co., 311 U.S.
426.
Construction which improves rivers and waterways serving as
instrumentalities of interstate commerce includes dredging; the
building, maintenance, repair, replacement, reconstruction, improvement,
or enlargement of
dikes, revetments, levees, harbor facilities, retaining walls, channels,
berths, piers, wharves, canals, dams, reservoirs and similar projects;
also the removal of debris and other impediments in the waterway and
flood control work in general. 42
---------------------------------------------------------------------------
42 Walling v. Patton-Tulley Transportation Co., 134 F. (2d)
945 (C.A. 6); Ritch v. Puget Sound Bridge & Dredging Co., 156 F. (2d)
334.
The Act applies to construction work which increases the navigability of
a waterway, protects it from floods or otherwise improves or maintains
its use as an instrumentality of interstate commerce. The courts have
held that a program for controlling floods is inseparably related to the
stabilization and maintenance of the navigable channel of the river,
since levees, dams, dikes and like structures, which hold back the
waters in time of flood, at the same time confine a more efficient body
of water during other periods by increasing its velocity and scouring
and deepening its channels. 43
---------------------------------------------------------------------------
43 Tobin v. Pennington-Winter Const. Co., ante; Tobin v.
Ramey, 206 F. (2d) 505 (C.A. 5) certiorari denied, sub nom Hughes
Construction Co. v. Secretary of Labor, 346 U.S. 925; Jackson v. U.S.,
230 U.S. 1.
---------------------------------------------------------------------------
(1) Flood control work in non-navigable parts of a waterway. Both
Congress and the courts have considered that watersheds and headwaters
are keys to the control of floods on navigable streams and that the
control over the non-navigable parts of a river is essential for the
prevention of overflows on the navigable portions. It is also well
settled that in order to control floods on a navigable stream it is
necessary to take flood control measures on its tributaries.
(2) Basis of coverage. (i) The construction of a levee, dam or other
improvement in any part of a river or its tributaries for the purpose of
preventing floods or aiding navigation must be considered as an integral
part of a single comprehensive project for improvement of the river
system. Even though a particular levee or dike, by itself, may not
effect an improvement, the courts have made it clear that the combined
effect of a chain of such structures serves as the basis for determining
coverage. The construction of a particular river structure may,
therefore, be subject to the Act simply because it is part of a
comprehensive system of structures, whose combined effect will achieve
the improvement of the navigable channel. Thus, it has been held that
site clearance work in the construction of a multiple-purpose dam on a
non-navigable stream is covered by the Act where the work is an integral
part of a comprehensive system for the control of floods and the
betterment of navigation on the Arkansas and Mississippi Rivers. 44
Similarly, the enlargement of a set-back levee, located from two to six
miles from the banks of the Mississippi, was held to be covered because
it was part of the Mississippi leveee system even though the set-back
levee, when viewed separately, was not directly related to the
functioning of the Mississippi as an instrumentality of commerce.
45
---------------------------------------------------------------------------
44 Tobin v. Pennington-Winter Const. Co., ante.
45 Tobin v. Ramey, 205 F. (2d) 606, rehearing denied 206
F. (2d) 505 (C.A. 5) certiorari denied, sub nom Hughes Construction Co.
v. Secretary of Labor, 346 U.S. 925.
---------------------------------------------------------------------------
(ii) The principle involved applies also to other instrumentalities
of interstate commerce. As in the case of covered waterway projects,
individual additions or improvements to other instrumentalities of
interstate commerce may for coverage purposes be considered as part of a
whole program rather than separately. The Act will apply to the
construction in such situations if the unit, considered by itself or as
part of a larger program, promotes the efficient or effective operation
of the instrumentality of interstate commerce.
(3) Construction of wharves, piers and docks. The Act also applies
to the construction of new piers, wharves, docks and other facilities if
they are integrated with the interstate commerce functions of an
existing harbor. Similarly, the new construction of such facilities in
other locations along the waterway is subject to the Act if they are
regularly used by vessels carrying goods or persons in interstate
commerce.
(f) Highways, county roads and city streets--(1) Typical examples.
As a generic term highways includes bridges, underpasses, overpasses,
bypasses, county roads, access roads, city streets
and alternate roads, draw bridges, toll bridges, toll roads and
turnpikes, but does not include roads or parking facilities on privately
owned land and which are not for use by the general public for
interstate traffic.
(2) Basis of coverage. The general rules for determining the
coverage of employees engaged in the construction of other
instrumentalities of interstate commerce apply to highway construction
work. The United States Supreme Court has stated that in applying the
Act to highway construction as to other coverage problems, practical
rather than technical constructions are decisive. 46 After
the Court remanded the Overstreet case to the district court, the latter
held that the employees engaged in maintaining and repairing the
facilities regularly used and available for interstate commerce were
engaged in commerce, regardless of the extent of the interstate
traffic.47 The court recognized that although the amount of
the interstate commerce in the Overstreet case was very small it was
regular and recurring and not occasional nor incidental. Thus, under the
authoritative decision a percentage test is not regarded as a practical
guide for ascertaining whether a particular facility is an
instrumentality of interstate commerce.48 Employees who are
engaged in the repair, maintenance, extension, enlargement, replacement,
reconstruction, redesigning or other improvement of such a road are
subject to the Act. The fact that the road is owned or controlled by the
State or Federal Government or by any subdivision thereof would not
affect the applicability of the Act. The same would be true if State or
Federal funds were used to finance the construction. It should be noted,
however, that if the employees are actually employees of a State, or a
political subdivision thereof, they are excepted from coverage of the
Act under section 3(d).
---------------------------------------------------------------------------
46 Overstreet v. North Shore Corp., ante.
47 52 F. Supp. 503.
48 North Shore Corp. v. Barnett, 143 F. (2d) 172 (C.A.
5); Schmidt v. Peoples Telephone Union of Maryville, Mo., 138 F. (2d) 13
(C.A. 8).
---------------------------------------------------------------------------
(3) City streets. The construction, reconstruction or repair of a
city street, whether residential or not, which is part of an interstate
highway or which directly connects with any interstate highway is so
closely related to the interstate commerce moving on the existing
highway as to be a part of it. Construction of other streets, which are
not a part of a public road building program and are constructed on
private property as a part of a new residential development, will not be
considered covered until further clarification from the courts.
(4) New highway construction. Although a number of appellate court
decisions have held that the construction of new highways is not within
the coverage of the Act, these decisions relied upon the technical ``new
construction'' concept which the United States Supreme Court has
subsequently held to be inapplicable as the basis for determining
coverage under this Act. 49 Under the principles now
established by that Court's decision, which require determination of
coverage on the basis of realistic, practical considerations, the
construction of new expressways and highways that will connect with an
interstate highway system is so ``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.''
50 Such highways and expressways not only are so designed as
necessarily to become a part of or additions to an existing interstate
highway system, but their construction is plainly of a national rather
than a local character, as evidenced by the Federal financial
contribution to their construction. And neither the fact that they are
not dedicated to interstate use during their construction, nor the fact
that they will constitute alternate routes rather than replacement of
existing road, constitute sufficient basis, under the controlling court
decisions,
for excluding them from the coverage of the Act.51
Accordingly, unless and until authoritative court decision in the future
hold otherwise, the construction of such new highways and expressways
will be regarded as covered.
---------------------------------------------------------------------------
49 Compare Mitchell v. Vollmer, ante, with Koepfie v.
Garavaglia, 200 F. (2d) 191 (C.A. 6); Moss v. Gillioz Const. Co., 206 F.
(2d) 819 (C.A. 10); and Van Klaveren v. Killian House, 210 F. (2d) 510
(C.A. 5). The Vollmer decision specifically rejected the applicability
of the decision construing the Federal Employer's Liability Act, on
which the cited appellate court decision relied.
50 Mitchell v. Vollmer, ante; Walling v. Jacksonville
Paper Co., ante; and Overstreet v. North Shore Corp., ante.
51 Mitchell v. Vollmer & Co., ante; Tobin v. Pennington-
Winter Const. Co., 198 F. (2d) 334, certiorari denied 345 U.S. 915; and
Bennett v. V. P. Loftis Co., 167 F. (2d) 286.
---------------------------------------------------------------------------
