DA & S Oil Well Servicing, Inc. v. Mitchell, 5965.

• Decision Date: 19 December 1958
• Docket Number: No. 5965.,5965.
• Citation: 262 F.2d 552
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: D A & S OIL WELL SERVICING, INC., a corporation, Appellant, v. James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellee.

262 F.2d 552 (1958)

D A & S OIL WELL SERVICING, INC., a corporation, Appellant, v. James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellee.

No. 5965.

United States Court of Appeals Tenth Circuit.

December 19, 1958.

U. M. Rose, Hobbs, N. M. (Lawrence H. Johnson, Hobbs, N. M., was with him on the brief), for appellant.

Bessie Margolin, Asst. Solicitor, and Norman D. Schwartz, Atty., U. S. Dept. of Labor, Washington, D. C. (Stuart Rothman, Solicitor, Washington, D. C., and Earl Street, Regional Atty., Dallas, Tex., were with them on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.

PICKETT, Circuit Judge.

The Secretary of Labor brought this action to enjoin the defendant-employer from violating the provisions of Section 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act of 1938, as amended.¹ His complaint was based upon the employer's failure to pay additional compensation to employees who drove trucks which transported equipment and other employees to and from the place where the work was performed. The case was submitted to the trial court on an agreed statement of facts, and a permanent injunction was granted. The defendant contends that this driving time was "preliminary" and "postliminary" riding or traveling to and from the actual place of performance of the employees' principal work and that under the provisions of the Portal-to-Portal Act of 1947, they are not entitled to be compensated therefor. 29 U.S.C.A. § 251 et seq.

Defendant is a New Mexico corporation, and its principal business is servicing producing oil wells and "swabbing in" wells which have not been placed on production or on which production has been interrupted. The main base of its operations is in Hobbs, New Mexico, but the services are performed at the different well sites, the majority of which are located less than thirty miles from the defendant's yards in Hobbs. Some of the equipment used in performing these services consists of pulling and swabbing units and tanks containing butane gas which is used as fuel for the units while in use at the well sites. The units, weighing 30,000 pounds or more, are mounted on the beds of large trucks. The butane gas tanks of 109 gallon capacity are mounted on pickup trucks.² The pickups also, at times, transport other equipment to and from the field which could be economically transported otherwise. With certain exceptions, a pulling and swabbing unit and a pickup truck are driven on each working day, before and after regular working hours, to and from each well site being serviced. A crew consisting of one unit operator and one or more "floor hands" is employed to perform the service. Normally the operator drives the truck on which the unit is mounted, and a floor hand drives the pickup. It is not regarded as necessary to keep the pickup in the field to enable the work to be performed but, as a matter of practice, it is kept there to enable the crew to make the trip home. There is room in both trucks for the other employees to ride to and from the well site. The driving of the trucks is an activity which is performed by the drivers in addition to their duties at the well site during regular working hours. It was defendant's practice to compensate all members of a crew for the time spent in traveling from its base to the well site,³ but no compensation was being made for the return trip.

The question presented is limited to whether such driving activities of the drivers of both types of trucks falls within the exclusion of Section 4 of the Portal-to-Portal Act, which provides, in part:

"* * * no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947 —

"(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

"(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." — 29 U.S.C.A. § 254(a).

In construing that section, the Supreme Court of the United States, in Steiner v. Mitchell, 350 U.S. 247, 255-256, 76 S.Ct. 330, 335, 100 L.Ed. 267, said:

"On the whole it is clear, we think, that while Congress intended to outlaw claims prior to 1947 for wages based on all employee activities unless provided for by contract or custom of the industry, including, of course, activities performed before or after regular hours of work, it did not intend to deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities. Had Congress intended the result urged by petitioner, the very different provisions of Sections 2 and 4 would have been unnecessary; Section 2 could have been given prospective as well as retroactive effect.

"We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a) (1)."

See also Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282. In arriving at its conclusion, the Supreme Court discussed at length and relied upon the legislative history of the Portal-to-Portal Act. The legislative history referred to in these cases is applicable...