155 F.2d 215 (1st Cir. 1946), 4111, Walling v. Portland Terminal Co.

Docket Nº:4111.
Citation:155 F.2d 215
Party Name:WALLING v. PORTLAND TERMINAL CO.
Case Date:April 29, 1946
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 215

155 F.2d 215 (1st Cir. 1946)

WALLING

v.

PORTLAND TERMINAL CO.

No. 4111.

United States Court of Appeals, First Circuit.

April 29, 1946

Page 216

Morton Liftin, Atty., William S. Tyson, Acting Sol., and Jeter S. Ray, Asst. Sol., all of Washington, D.C., George H. Foley, Regional Atty., of Boston, Mass., George W. Jansen, Supervising Atty., of Washington, D.C., and Harry A. Tuell, Senior Atty., of Boston, Mass., for appellant.

E. Spencer Miller, of Portland, Me., for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

The district court denied an injunction sought by the Administrator of the Wage and House Division of the United States Department of Labor against the defendant for alleged violations of Secs. 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (2, 5), and from that decision the Administrator has appealed. This case calls upon us to determine whether persons who are engaged in training for positions with the defendant company as yard brakemen are 'employed' by the company or are 'employees' of the company during the training period within the meaning of Sec. 3(e) and (g) of said Act, 29 U.S.C.A. § 203(e, g). If these so-called 'trainees' or 'learners' are 'employees' ten the defendant must pay them the minimum wages and keep the records required by Secs. 6(a) and 11(c) of the Act, 29 U.S.C.A. §§ 206(a), 211(c).

Because of the disposition we make of the case, it is unnecessary for us to consider whether these trainees are engaged in interstate commerce.

The defendant operates a railroad terminal at Portland, Maine, and employs yard crews in the operation of its facilities. For some years it has been the custom of the defendant and other railroad companies to require all inexperienced applicants for jobs as yard brakemen to go through a training period. Prospective workers are required to file a formal application for employment, to take an eye test and undergo, at their own expense, a physical examination by a physician designated by the company. If the applicant passes these examinations he is assigned to a conductor who is in charge of a yard crew of three regular men and he goes through a training period. The trainees are given an opportunity to observe the type of work they will do when and if they become regular brakemen. Under supervision of regular crew members they are gradually permitted to do more and more of the work which the regulars do until such time as the conductor deems them competent to serve without supervision. If a trainee finishes his training period and is certified by the conductor as competent to carry out the duties of a brakeman, his name is placed 'on the board', which means that he is eligible for employment as a regular. Before October 1, 1943, the trainees were not paid during

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the training period. Since then the company has paid each trainee $4 a day for each eight hour day of that period if he finishes his training and is placed 'on the board'. 1 If he does not complete his training period or is not certified as competent, he receives nothing for the time he has put in. The trainees are informed of these provisions in regard to compensation before they are permitted to start their training. The length of the training period required depends upon the aptitude and skill exhibited by the individual trainee and averages about seven or eight days. The maximum length of the period is two weeks. The application for employment which is singed by the prospective trainee states: 'It is agreed by me to serve for at least two weeks under instructions of a conductor for the purpose of learning the duties and qualifying for such position, employment to be subject of (sic) passsing required examinations on the operating rules, the working rules and regulations as from time to time applied, and the approval of the designated officer.' During the period of training, the trainee is expected to be present with the crew to which he has been assigned during the working hours, which are normally eight hours a day, but are sometimes longer. As a matter of practice, the trainee is not required to pass any examination on the rules of the company, though he is required to copy those rules into a notebook.

The court below found that the work of the trainee 'is of no immediate advantage to the Railroad * * * as the trainee does not displace any member of the regular crew at the time. Rather, it is a disadvantage, because a novice undertakes the work to get experience while a trainman stands by watching him, and the operation is apt to be impeded rather than expedited.' If found, however, that the training program enables the railroad to obtain 'a pool of qualified workmen to draw upon * * * '. It also found that the trainee 'is not subject to the rules or discipline applicable to an employee and is not considered such'.

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