Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123

• Decision Date: 13 August 1941
• Docket Number: Civil Actions No. 5232-5234.
• Court: U.S. District Court — Northern District of Alabama
• Parties: TENNESSEE COAL, IRON & R. CO. v. MUSCODA LOCAL NO. 123 et al. (FLEMING, Intervener). SLOSS-SHEFFIELD STEEL & IRON CO. v. SLOSS RED ORE LOCAL NO. 109 et al. (FLEMING, Intervener). REPUBLIC STEEL CORPORATION v. RAIMUND LOCAL NO. 121 et al. (FLEMING, Intervener).

40 F. Supp. 4

TENNESSEE COAL, IRON & R. CO. v. MUSCODA LOCAL NO. 123 et al. (FLEMING, Intervener).

SLOSS-SHEFFIELD STEEL & IRON CO. v. SLOSS RED ORE LOCAL NO. 109 et al. (FLEMING, Intervener).

REPUBLIC STEEL CORPORATION v. RAIMUND LOCAL NO. 121 et al. (FLEMING, Intervener).

Civil Actions Nos. 5232-5234.

District Court, N. D. Alabama, S. D.

August 13, 1941.

COPYRIGHT MATERIAL OMITTED

Borden Burr, Grady Patterson, Benners, Burr, McKamy & Forman, Ernest All, Sam Bronaugh, Bernard Monaghan, and Bradley, Baldwin, All & White, all of Birmingham, Ala., for plaintiffs.

Crampton Harris, of Birmingham, Ala., J. A. Lipscomb, of Bessemer, Ala., Lee Pressman and Joseph Kovner, both of Washington, D. C., and J. Q. Smith, W. F. Spencer, and Ralph W. Quinn, all of Birmingham, Ala., for defendants.

Jerome A. Cooper, of Birmingham, Ala., and Abner Brodie and Erwin B. Ellmann, both of Washington, D. C., for intervener.

MURPHREE, District Judge.

These cases, which were consolidated for trial, are actions for declaratory judgments. The plaintiffs are three corporations engaged, inter alia, in mining iron ore; they contend that the workweek of their underground ore mining employees does not include, within the meaning of Section 7 of the Fair Labor Standards Act of 1938, Title 29, U.S.C.A., ß 207, that portion of the time spent by those employees in being transported and in walking to and from their usual working places. The defendants are labor unions, labor union officials, and individuals, who are representative of the general class of underground ore mining employees of the several plaintiffs. The defendants contend that the workweek of these employees includes all of the periods between the times when the miner reports for duty as required at or near the collar of the mine and when he reaches the collar at the end of the shift, except any fixed lunch period during which the miner is relieved of all duties, and also includes the aggregate of time spent on the surface in obtaining and returning lamps, carbide and tools, and in checking in and out. Because many persons in the class of the defendants are making actual claims upon the several plaintiffs for overtime compensation, based on the contention made by defendants in these actions, a justiciable controversy is presented.

The Administrator of the Wage and Hour Division of the United States Department of Labor has been permitted to intervene in each action, and he has made herein substantially the same contentions as have the several defendants.

The question presented is one of construction and application of the Fair Labor Standards Act of 1938 (hereinafter referred to as the Act). The important portion of Section 7 of the Act is:

"(a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce —

"(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,

"(2) for a workweek longer than forty-two hours during the second year from such date, or

"(3) for a workweek longer than forty hours after the expiration of the second year from such date,

unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

By the provisions of Section 3(g) of the Act, Title 29, U.S.C.A. ß 203(g), "employ" is defined to include "to suffer or permit to work".

The plaintiffs, in order to prove their contended construction and application, adduced evidence of two kinds: (1) Evidence of an alleged custom or usage, with respect to the issues here presented, of a kind that the plaintiffs contend Congress must have adopted in Section 7; and (2) evidence of the activities of typical underground miners in the plaintiffs' ore mines, in order to prove that their travelling and walking time is not within the purview of the language of the Act.

The defendants' evidence has been to prove: (1) That no such custom as contended by the plaintiffs existed, and that if it did it may not be given the effect contended for by the plaintiffs, and (2) that the activities of the underground ore mine employees here in issue have in fact constituted part of their employment and workweek.

1. Custom or Usage

The plaintiffs' evidence as to custom or usage consists chiefly of the terms and agreements under which the defendants and their class of employees have worked and been paid, both by plaintiffs and other employers in the same industry. The plaintiffs contend that the custom has always and universally been such as to exclude any payment for the time spent by underground iron ore mine employees in walking and being transported to and from their usual working places, and to include only payment for time actually spent by such employees at their particular stations underground. The plaintiffs contend that this custom was so well established and understood that Congress must have adopted it in its use of the terms "employ" and "workweek" in Section 7 of the Act.

The evidence has disclosed no such custom. During the greater part of iron ore mining history in this district payment of the producing crews has been on a tonnage basis, the time spent by them at any place or places having no bearing whatsoever on their wages. At other times and places, payment was on a task basis, without regard to hours worked at any point. But plaintiffs place their greatest reliance of proof of custom upon the arrangements and contracts with the defendant labor unions under which the underground ore miners have worked for plaintiffs during the past several years. A typical provision of these contracts is: "Eight hours work per day shall constitute a day's work and forty hours shall constitute a week's work. The eight hours per day means eight hours of work at the usual working place, exclusive of the lunch period." This provision carries little weight in establishment of a custom not to pay for travel time, since in practice no record of the time spent "at the usual working place" has been kept and it was the exception rather than the rule that a man worked precisely eight hours at such a place. The actual practice under those contracts was for the company to arrange a shift which was supposed to run, by way of example, from 6:45 A. M. to 3:15 P. M. at the usual stations of duty underground, with thirty minutes off for lunch. The men in the working stations closer to the underground man unloading stations would usually actually arrive at their working stations before 6:45 A. M. and start working earlier than 6:45 A. M., the men in the furthest working stations would frequently actually arrive later than 6:45 A. M. Quite generally most of the producing crews left their particular stations before 3:15 P. M. In all cases the men were credited with exactly eight hours work, except in very unusual cases, although the time spent "at the usual working place" fluctuated thirty to forty-five minutes per shift as between men. Under these circumstances, regardless of the phraseology of the contracts, the pay was on a shift basis, rather than an hourly basis, and since some of the men did not spend a full eight hours at their particular stations, it cannot be categorically stated that they received no compensation for at least part of the time spent by them in travelling to and from their usual stations.

It cannot be said that any established usage existed in the method of pay that made it clearly understood, by those concerned with iron ore mining, that the time spent in being transported and walking to and from the usual working places was not work or time spent in the employ of the employer. No custom existed that would indicate that the phrases "employ" and "workweek", used in Section 7 of the Act, would be understood, in their application to underground iron ore mining, to exclude such time from their purport.

Even if the mode of payment of these men did clearly exclude such time as employment and workweek time, it could not provide a controlling construction of Section 7 of the Act. The evidence clearly establishes that the methods of payment of wages were dictated almost entirely by the employers. The employees worked on the best terms they could obtain and the fact that they could not obtain terms that would compensate them for time spent in travelling underground to and from their working stations does not indicate that they did not consider that time as working time. It cannot be said that the way in which the iron ore miners have received their pay establishes, with their free and uncoerced agreement, the proposition that the time in question is not work time. Prior to the enactment of the Fair Labor Standards Act of 1938, iron ore miners repeatedly made efforts to obtain full, or at least a larger partial, compensation for so-called travel time. The fact that they were unsuccessful does not determine that they were erroneous in their contention that such time was work time, nor does it determine that Congress, in using the phraseology of Section 7 of the Act, adopted the prevailing method of payment. Since the usual methods of payment were not arrived at by unhampered consent of the workers, it would be no more reasonable to assume that Congress, in the Fair Labor Standards Act, adopted the employers' formula than to assume that Congress intended to remedy the practice so far as it may have denied compensation for actual work. That Congress has the authority to abrogate such a practice was made clear in Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780, where the court said: "The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a...