In order for coverage to exist the amendment requires a closer and more direct relationship to the producing activity than existed in such cases. Conference Report on the Amendment of the Fair Labor Standards Act of 1938, U.S. Code Congressional Service, 81st Congress, First Session, pp. 2253-2254; McComb v. Factory Stores Co. of Cleveland, D.C., 81 F. Supp. 403; 6 Cir., 179 F.2d 238; Hawkins v. E.I. DuPont De Nemours Co., 4 Cir., 192 F.2d 294, 296; Juarez v. Kennecott Copper Corp., 10 Cir., 225 F.2d 100, 103. Whether the rulings in Reynolds v. Salt River Valley Water Users, Ass'n, supra, and Farmers Reservoir Irrigation Co. v. McComb, supra, would be the same under the 1949 amendment, we do not know and it is unnecessary to decide. We do know from the express statement in the Conference Report that coverage would no longer exist under the 1949 amendment in McComb v. Super-A Fertilizer Works, supra, 1 Cir., 165 F.2d 824. The factual situation in that case is closely analogous to the case we are presently considering.
We think the undisputed facts of this case bring it outside the change in the coverage intended or accomplished by the amendment and that the broad principles pronounced in the Womack, Hanson, and Kirschbaum cases, supra remain unchanged. Such is the basis for our own opinion in General Electric Co. v. Porter, 1953, 9 Cir., 208 F.2d 805. And in the opinion written by Judge Soper, in Hawkins v. E.I. DuPont De Nemours Co., 1951, 4 Cir., 192 F.2d 294. Each of these two latter cases was decided after the amendment. Appellee's contention that McLeod v. Threlkeld, 1943, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538, overrules or weakens Consolidated Timber Co. v. Womack, supra, cannot be sustained.
The District Court was directed on the remand also to determine whether the activities of the complainants were performed to such an extent beyond the hours fixed by the statute so as to entitle the complainants to overtime compensation. See Hawkins v. E.I. Du Pont De Nemours Co., 4 Cir., 192 F.2d 294. It was alleged in the affidavits presented to this court on the first appeal that the plant was completely fenced in and that the employees were not allowed during their work shift to leave the plant except for good cause shown, and that the cafeteria was the only place for them to eat.
" Hawkins v. E.I. DuPont de Nemours Co., 4 Cir., 192 F.2d 294; Ikola v. Snoqualmie Falls Lumber Co., 1 WH Cases 1073 (1941); McComb v. Factory Stores Co. of Cleveland, D.C., 81 F. Supp. 403. "Under the bill as agreed to in conference an employee will not be covered unless he is shown to have a closer and more direct relationship to the producing, manufacturing, etc., activity than was true in the above-cited cases."
The final question is, then, whether the 1949 amendment of Section 3(j), whereby the test of what employment or activity would be deemed to be production of goods for commerce was changed from "any process or occupation necessary to the production thereof" to "any closely related process or occupation directly essential to the production thereof", was intended to remove maintenance employees, such as the employees herein, formerly covered under the interpretation of the Kirschbaum case, from the coverage of the Act. In Hawkins v. E.I. Du Pont De Nemours Co., 4 Cir., 192 F.2d 294, this amendment is characterized as a manifestation of the tendency to restrict the broad implications of the Kirschbaum case. Whatever change is made in the location of the so-called "fringe" area by this amendment, however, the legislative history makes it entirely clear, indeed by specific reference and citation, that custodial workers and maintenance workers, such as were covered in the Kirschbaum case, were not intended to be removed from the coverage of the Act.
The overwhelming number take their meals at the cookhouse. In Hawkins v. E.I. Du Pont de Nemours Co., 4 Cir., 1951, 192 F.2d 294, the employees involved worked at the defendant's restaurant which was operated in conjunction with defendant's manufacturing plant. The plant employees were not free to leave the plant because they were under guard during working hours.
Since it has been conceded by defendant that the piece-rate timber cutters are employees and not independent contractors it is unnecessary to announce any further conclusion with reference to them, other than that the defendant is now in compliance with the Act insofar as the piece-rate timber cutters are concerned, and that there is no reason to expect that there will be any future violations in that regard. I conclude further that the two camps in controversy here are necessary parts of defendant's operations; that the cooks at the camps perform their work in interstate commerce; and that they are consequently within the purview of the Fair Labor Standards Act. Hawkins v. E.I. Du Pont de Nemours Co., 4 Cir., 192 F.2d 294; Consolidated Timber Co. v. Womack, 9 Cir., 1942, 132 F.2d 101; Hanson v. Lagerstrom, 8 Cir., 1943, 133 F.2d 120. While ostensibly engaged under a contract and heretofore considered as independent contractors, it is my opinion that the cooks and "cookees" are actually employees of defendant. It is true that they buy their own supplies, are paid at a designated rate per boarder, and have the right to take in outside boarders and to absent themselves personally at times from the camps; and it cannot be gainsaid that these circumstances of the employment point to the status of independent contractor.