project. Thus, the act is applicable to employees who are regularly engaged in ordering or procuring materials and equipment from outside the State or receiving, unloading, checking, watching or guarding such goods while they are still in transit. For example, laborers on a non-covered construction project who regularly unload materials and equipment from vehicles or railroad cars which are transporting such articles from other States are performing covered work.12

(2) Similarly, employees who regularly use instrumentalities of commerce, such as the telephone, telegraph and mails for interstate communication are within the scope of the act, as are employees who are regularly engaged in preparing, handling, or otherwise working on goods which will be sent to other States. This includes the preparation of plans, orders, estimates, accounts, reports and letters for interstate transmittal.

Section 776.24 TRAVEL IN CONNECTION WITH CONSTRUCTION PROJECTS

The act also applies to employees who regularly travel across State lines in the performance of their duties, even though the construction project itself is not covered.13 If an employee regularly transports persons, materials, or equipment between jobs across State lines, or to a covered project, even within the State, as part of his duties for the contractor, he would be covered. As in other situations, the act would not apply if crossing State lines or transporting persons, materials, or equipment by the employee was isolated or sporadic rather than regular and recurring. Also, ordinary home-to-work travel, even across State lines, is not covered.

Section 776.25-REGULAR AND RECURRING ACTIVITIES AS BASIS OF COVERAGE

Regular and recurring may mean a very small amount and is not to be determined by

1 Clyde v. Broderick, 144 F. (2d) 348 (C. A. 10); Durnil v. J. E. Dunn Construction Co., 186 F. (2d) 27 (C. A. 8); Donahue v. George A. Fuller Co., 104 F. Supp. 145; Cf. Mitchell v. Royal Baking Co., 219 F. (2d) 532 (C. A. 5).

18 Reck v. Zarnocay, 264 App. Div. 520, 36 N. Y. S. (2d) 894; Colbeck v. Dairyland Creamery Co., 17 N. W. (2d) 262 (S. Ct. S. D.).

volume or percentages. Coverage depends on the character rather than the volume of the employee's activities. For example, if an employee in the course of his duties regularly engages in covered work even though the covered work constitutes only a small part of his duties, he would be covered in any week when he performs such covered work.1

Section 776.26-RELATIONSHIP OF THE CONSTRUCTION WORK TO THE COV. ERED FACILITY

Unless the construction work is physically or functionally integrated or closely identified with an existing covered facility it is not regarded as covered construction because it is not closely enough related to or integrated with the production of goods for commerce or the engagement in commerce. For this reason the erection, maintenance or repair of dwellings, apartments, hotels, churches and schools are not covered projects.15 Similarly the construction of a separate, wholly new, factory building, not constructed as an integral part or as an improvement of an existing covered production plant, is not covered (CF. § 776.27 (c)). Coverage of any construction work, whether new or repair work, depends upon how closely integrated it is with, and how essential it is to the functioning of, existing covered facilities. Neither the mere fact that the construction is "new construction" nor the fact that it is physically separated from an existing covered plant, is determinative. Moreover, the court decisions make it clear that the construction project itself need not be actually employed in commerce or in the production of goods for commerce during the time of its construction in order to be covered.16 Such factors may be considered in determining whether as a practical matter the work is directly and vitally related to the functioning of the covered facility but would not be decisive.

Section 776.27-CONSTRUCTION WHICH
IS RELATED TO COVERED PRODUC-
TION

(a) Existing production establishments

(1) Covered production facilities within the concept of the act include mines, oil wells, banks, manufacturing, packing and processing plants, filtration, sewage treatment, electric power and water plants, shipyards, warehouses in which goods are broken down, packed or handled preparatory to being sent in interstate commerce, and similar establishments.

(2) The repair or maintenance of a covered production unit is essential for its continued operation and has a close and immediate tie with the production of goods for commerce.17 The act is also applicable to other construction which is an integral part of a covered production unit, such as the replacement, enlargement, reconstruction, extension or other improvement of the premises, the buildings, the machinery, tools and dies and other equipment. Functionally such work is like maintenance and repair and is necessary for the continued, efficient and effective operation of the facility as a unit. Thus the construction of new appurtenances of a covered production establishment such as parking aprons, access roads, railroad spurs, drainage ditches, storm waste and sanitary sewers or adjacent integrated buildings is subject to the act. Similarly, the act applies to the installation of telephone, electric, gas and water lines, machinery and other equipment on the premises of such a facility.

(3) On the other hand, the production and furnishings, within the State, of construction materials, such as sand, gravel, brick and other construction materials produced for general local use, is not covered even if the producer also supplies such materials to construction companies which use them within the State in the repair, maintenance or improvement of facilities for the production of goods for commerce. Employees of the materialman in such a situation would not have such a close and immediate tie to the production of goods for

17 Kirschbaum Co. v. Walling, ante; Walling v. McCrady Const. Co., ante.

19

The act applies to employees of public utilities which furnish gas, electricity, water or fuel to firms engaged within the same State in manufacturing, processing, producing or mining goods for commerce.1 Construction work performed upon the plant and facilities of such a utility is covered as in the case of any other covered production establishment.20 The extension of the lines or other facilities of a covered utility for the first time to the premises of an establishment which produces goods for commerce would be subject to the act, because such extension is simply an improvement or enlargement of an existing covered utility. Furthermore, the maintenance or repair of the wires, pipes, or other conduits of a covered utility which serves business and manufacturing as well as residential areas would also be within the act. On the other hand, extension or repair of lines or other facilities serving only residential areas would not be covered unless the electricity, gas, fuel, or water comes from out of the State.

21

(c) New construction which is not integrated with existing production facilities

(1) Construction of a new factory building, even though its use for interstate production upon completion may be contemplated, will not ordinarily be considered covered. However, if the new building is designed as a replacement of or an addition or an improvement to, an existing interstate production facility, its construction will be considered subject to the act.

(2) If the new building, though not physically attached to an existing plant which pro

18 See General Coverage Bulletin, 776. 19 (b) (3); but see 776.19 (b) (1), (2) and (3) on coverage of furnishing materials "specially designed", or meeting particular specifications, for use in production of particular kinds of goods for commerce; and paragraph (d) of this section, on coverage of producing and furnishing materials for use in construction work on instrumentalities of commerce.

19 House Manager's Statement, 1949 Amendments. 20 See decisions cited in footnotes 10 and 11, of this subpart. Meeker Cooperative Light & Power Ass'n. v. Phillips, 158 F. (2d) 698 (C. A. 8); Cf. New Mexico Public Service Co. v. Engel, 145 F. (2d) 636 (C. A. 10); Lewis v. Florida Power & Light Co., 154 F. (2d) 75 (C. A. 5).

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

(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.3 32 Obvious examples of such facilities are railroad terminals, airports which are components of a system of

* Coverage of preparation of plans and designs is discussed in § 776.19 (b) (2).

General coverage bulletin, § 776.11.

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).

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.

(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

(c) Examples of construction projects which are subject to the act

34

Coverage extends to employees who are engaged on such work as repairing or replacing abutments and superstructures on a washed out railroad bridge; 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," and facilities used in the production and transmission of electric, fuel, water, steam and other powers to instrumentalities of interstate commerce.3 (d) Construction of new facilities

38

(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

"Tobin v. Pennington-Winter Const. Co., ante; Oklahoma V. Atkinson Co., 313 U. S. 508; Cuascut v. Standard Dredging Corp., 94 F. Supp. 197.

Pedersen v. J. F. Fitzgerald, 318 U. S. 740.

Bennett v. V. P. Loftis Co., 167 F. (2d) 286 (C. A. 4).
Walling v. McCrady Const. Co., ante.

Divina 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).

88 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.

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.

(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

39 Mitchell v. Vollmer & Co., ante; see also Bennett v. V. P. Loftis, ante.