Ballou v. General Electric Company, 7602.

• Decision Date: 16 October 1970
• Docket Number: No. 7602.,7602.
• Citation: 433 F.2d 109
• Parties: William R. BALLOU et al., Plaintiffs, Appellants, v. GENERAL ELECTRIC COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

433 F.2d 109 (1970)

William R. BALLOU et al., Plaintiffs, Appellants, v. GENERAL ELECTRIC COMPANY, Defendant, Appellee.

No. 7602.

United States Court of Appeals, First Circuit.

October 16, 1970.

John McMahon, Roxbury, Mass., with whom Angoff, Goldman, Manning & Pyle, Boston, Mass., was on the brief, for appellants.

Laurence S. Fordham, Boston, Mass., with whom David W. Walker and Foley, Hoag & Eliot, Boston, Mass., were on the brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellants are apprentices in a program run by appellee, General Electric Company. This program consists of on-the-job training conducted at appellee's plant in Lynn, Massachusetts, and additional classes conducted off appellee's premises by independent educational institutions. Although appellee pays the apprentices' tuition for this outside classwork, it pays them nothing for the time spent in class or preparing for class. Appellants are required by their employment contracts to prepare for, attend, and make satisfactory progress in these classes. An apprentice who fails to keep these conditions is subject to dismissal. For the most part, the classwork does not relate directly to the skills apprentices receive in on-the-job training. Its approach is more theoretical, providing the apprentices with an academic understanding of the skills they are developing.

Appellants claim that the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. entitles them to compensation for the time spent in and preparing for class. They filed suit in the district court for back pay. The court dismissed their complaint as failing to state a cause of action. It held that the classroom activity was "preliminary or postliminary to * * * principal activity or activities", and thus was exempt from coverage of the Fair Labor Standards Act under the Portal-to-Portal Act, 29 U.S.C. § 254(a). Although we expressed some skepticism as to whether appellants were entitled to compensation for this classwork, we nevertheless reversed the district court's dismissal because the record was too barren for us to decide the issue. Ballou v. General Electric Co., 393 F.2d 398 (1st Cir. 1968). On remand, interrogatories were filed and partially answered. Appellee moved for summary judgment and both sides filed affidavits. The court granted the motion, ruling that appellants' classroom activities were preliminary or postliminary to appellants' principal activity — work-training.

In so ruling, the court utilized the test set down by the Supreme Court in the companion cases of Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956) and Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956). The Court there held that activities are not "preliminary or postliminary" if they are "an integral and indispensable part of the principal activities for which covered workers are employed * * *." 350 U.S. at 256, 76 S.Ct. at 335. Appellants claim that the district court erred by ruling that the time apprentices spend preparing for and attending class was not an "integral and indispensable part" of their principal activity of employment.

Initially we are confronted with appellants' claim that summary judgment is not an appropriate method for deciding this issue both because the issues are complex and because the records relating to the apprentice program are in G.E.'s control. Appellants do not say what they would find if they had access to appellee's records. All have participated in the apprentice program and have firsthand knowledge of its operations. They offer no reason why the discovery in which they engaged did not uncover the information supposedly contained in the records. Nor do they offer any reason why they could not have discovered these records if they had felt them so important.

Though it may be complex, the issue whether or not the classroom program was an "integral and indispensable part" of appellants' principal activity is not, as appellants suggest, a factual one. It is a question of law. In both Steiner and King Packing, supra, the Supreme Court determined whether the disputed activities were preliminary or postliminary; the issue was not one of factual inferences to be decided by a jury.¹

Having determined that summary judgment was appropriate, we turn to the substantive question of compensability for classroom study. Appellants argue that a compulsory program must be an "integral and indispensable part" of their principal activity or else it would not be compulsory. At first glance, this contention seems to have some merit. The apprentices were hired both to work and to engage in training so that they could become more useful employees. If an apprentice failed in either his capacity as worker or trainee, he would be fired. Even though it is undisputed that G.E. could have carried on its training program without classroom activity, it did not choose to do so. Classroom training seems to be an essential part of the training program G.E. has decided to set up and is to be distinguished from activities allowed for the employees' convenience, such as the post-work showers in Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934 (5th Cir. 1955).

We are nevertheless satisfied that Congress did not intend the Fair Labor Standards Act to apply to these activities and that in fact it does not apply. In Walling v. Portland Terminal Co., 330 U. S. 148, 67 S.Ct. 639, 91 L.Ed. 809 (1947) and Walling v. Nashville, Chattanooga & St. Louis Railway, 330 U.S. 158, 67 S.Ct. 644, 91 L.Ed. 816 (1947), both litigated before the Portal-to-Portal Act was enacted, the Supreme Court held that employers who furnished training to potential employees, were not required under the Fair Labor Standards Act to compensate trainees for time spent in the training program.² Even though the trainees were hired if they successfully completed the program, the Court did not deem them employees but compared their status to that of students. To justify excluding persons whose status was that of a student from the coverage of the law, the Court noted that 29 U.S.C. § 214 permitted employers to pay less than minimum wages to learners and apprentices providing that the Administrator of the Wage and Hour Division of the Department of Labor approved. The justification for this provision was and is that apprentices are entitled to be compensated at the minimum wage for the productive work content of their activities but not for the educational or training content which was for their own benefit. Administrative approval of wages less than the minimum is necessary only to prevent employers from paying less than the minimum wage to "apprentices" who were not actually receiving any training.

According to these Supreme Court decisions, if G.E. did not employ appellants as workers but provided only training programs which they were required to complete successfully before they could be employed as journeymen, appellants would be entitled to no compensation. The fact that in addition to such a program, G.E. also provides work-training for which it pays well above the minimum wage would not seem to be sufficient to require that the minimum wage be paid for the outside classroom study.³ G.E. compensates its apprentices in their status as workers but does not compensate them in their status as students.

Although the Portal-to-Portal Act was not law when the Supreme Court decided Portland Terminal and its companion supra, it would not seem to require that the apprentices be compensated in their student status. The legislative history of that Act reveals that it was designed to limit rather than expand the coverage of the Fair Labor Standards Act.⁴ We think that it is consistent with the spirit of both the Portal-to-Portal Act and the Fair Labor Standards Act to say that as a matter of law, the principal activity of the apprentices as employees is the work that takes place during their regular 40 hour work-training week and that activity as students pursuing their required courses of study is neither integral nor indispensable to that principal activity.

Our holding is bolstered by the Department of Labor Regulation, 29 C. F.R. § 785.32, which states that employers do not have to pay apprentices for supplemental training programs if the training programs substantially comply with the fundamental standards of the Bureau of Apprenticeship and Training. There is no material issue of fact as to whether or not G.E.'s...