Opinion
No. 5138.
November 9, 1943.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore; W. Calvin Chesnut, Judge.
Action by Frank Barbe against Cummins Construction Company to recover unpaid compensation for overtime work allegedly due plaintiff under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201, et seq. Judgment for defendant, 49 F. Supp. 168, and plaintiff appeals.
Affirmed.
George A. Mahone and Wylie L. Ritchey, both of Baltimore, Md., for appellant.
Seymour O'Brien, of Baltimore, Md. (Miles O'Brien, of Baltimore, Md., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
This is an appeal in a case instituted under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The plaintiff was a cement finisher, working on the construction of buildings. His work consisted principally in leveling or pointing up concrete construction after the wooden frames had been removed therefrom. In some instances he assisted in pouring the concrete into wooden frames. It is contended that his work was "in commerce" within the meaning of the act because the cement was brought from without the state and because he was sent into another state, in one instance, to work on the construction of a building. There is nothing in either of these contentions. Plaintiff's employment was in local construction work and he had no connection with the materials used by him until they had ceased to move in interstate commerce. For reasons adequately stated in the opinion below, he was not within the coverage of the act; and the judgment for the defendant must be affirmed.
Affirmed.