Walling v. Jacksonville Terminal Co.

• Citation: 148 F.2d 768
• Decision Date: 23 April 1945
• Docket Number: No. 11198.,11198.
• Parties: WALLING v. JACKSONVILLE TERMINAL CO.
• Court: U.S. Court of Appeals — Fifth Circuit

148 F.2d 768 (1945)

WALLING v. JACKSONVILLE TERMINAL CO.

No. 11198.

Circuit Court of Appeals, Fifth Circuit.

April 23, 1945.

Douglas B. Maggs, Solicitor, U. S. Department of Labor, Bessie Margolin, Asst. Solicitor, U. S. Dept. of Labor, and George M. Szabad, Attorney, in Chief Appellate Section, Office of Solicitor, U. S. Dept. of Labor, all of Washington, D. C., and Geo. A. Downing, Regional Attorney, Dept. of Labor, of Atlanta, Ga., for appellant.

Charles Cook Howell, Elliott Adams, and Harold B. Wahl, all of Jacksonville, Fla., for appellee.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

Charging that Jacksonville Terminal Company was violating the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., as to a number of its employees, which it claimed to be learners, by failing to pay the minimum wages and to keep the records required by the Act with respect to them, the Administrator sought to enjoin such violation. The Company admitted the allegations, except that it denied the learners, which it called "trainees", were its employees. The district court denied the injunction, and the Administrator appeals. The sole question is whether the trainees are employees under the Act.

The facts as found by the district court are not disputed. The Company has at Jacksonville, Florida, a large and complicated network of tracks and interlocking switches by means of which it assembles and prepares for departure all outgoing trains, and disassembles all incoming trains of all the railroads, handling about 100 trains per day, and having more than a thousand employees, in interstate commerce. A full crew serves each engine, consisting of a yard foreman, two switchmen, an engineer and a fireman. To operate with safety and without confusion the switchmen and enginemen must have knowledge not only of general railroad work, but of the yards and switches and signal systems and rules of operation of the Company. Following a general practice of railroads, the Company requires of all applicants for employment in engine or switching service that they undergo a training period, during which no compensation is paid. The trainee is assigned to work with a full crew. He learns first by observation, and then by doing some of the regular work under the supervision of the crew member whose work he is doing. A trainee has no regular time to report or hours for training, though generally he joins a crew at the beginning of their shift and exhibits his permit to receive instruction. He is free to select such time each day as best suits his convenience, and frequently appears after completing his day's work elsewhere. He is required to study the Company's rules and regulations, and become familiar with the terminal, its layout, interlocking and signal devices, location of tracks and other facilities, touching all of which he must stand an examination before he can work as a regular employee. After evidencing his ability practically, as certified by a required number of his instructors, and standing his examination, he may be placed on the pay roll and become entitled to the wages established by collective bargaining. Upon his first day's regular employment he goes on the Company's seniority list. The length of time taken for training varies with the previous experience, the aptitude and the intelligence of the trainee. Some men qualify in a day, some require two weeks, and some never qualify. The average is about a week.

The trainee is under no obligation to become a regular employee, nor is the Company under obligation to give him such employment. The Company has never considered him as an employee till given his first assignment. Under its labor agreements with its employees he does not go on the seniority list till that time. When the trainee applies for a permit to train he executes a written agreement with the Company which states that whereas he desires to enter the service of the Company, and it is necessary to ride the engines and to learn the yards "in order to prepare myself for such service in case the Jacksonville Terminal Company elects at any time in the future to employ me; now therefore I agree, First, that Jacksonville Terminal Company is not liable to me for any compensation while I am so engaged in learning said yards. * * * Second, that I assume all risks of whatsoever nature incident to learning said yards, and agree to hold said Jacksonville Terminal Company harmless for any injury I may receive. * * *"

The district court summarized the situation thus 55 F.Supp. 302, 304): "None of the usual indicia of the employee relationship exist here as to the trainee. He is not subject to the rules of the defendant applicable to employees; no control is exercised over his time; he is not required to report at any specified time; defendant has no right to demand or require work from him; he comes and goes as he pleases; and both he and defendant understand and agree he is not to be paid during the training period." The conclusion of law is thus stated: "It is not the purpose of the Fair Labor Standards Act to create new wage liabilities, but where a wage liability exists, to measure it by the standards fixed by law. If one has not hired another expressly, nor suffered nor permitted him to work under circumstances where an obligation to pay him will be implied, they are not employer and employee under the Act."

We approve the above summarization of the facts. The legal conclusion is quoted from an early decision of this court, Bowman v. Pace, 5 Cir., 119 F.2d 858, from which we see no reason to recede. The Act, Sect. 3(e) (g),...