Carter v. Panama Canal Company

• Decision Date: 05 June 1972
• Docket Number: No. 24464.,24464.
• Citation: 463 F.2d 1289
• Parties: Wade V. CARTER, Jr., et al., Appellants, v. PANAMA CANAL COMPANY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

463 F.2d 1289 (1972)

Wade V. CARTER, Jr., et al., Appellants, v. PANAMA CANAL COMPANY.

No. 24464.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 1971.

Decided June 5, 1972.

Mr. Charles Sovel, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, for appellants. Messrs. A. Fred Freedman, Washington, D. C., and Abraham E. Freedman, New York City, were on the brief for appellants. Mr. Eugene G. Horowitz, Washington, D. C., also entered an appearance for appellants.

Mr. A. Raymond Randolph, Jr., Atty., Dept. of Justice, of the bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen., Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Alan S. Rosenthal, Atty., Dept. of Justice, were on the brief, for appellee. Messrs. Reed Johnston, Jr., and Robert L. Kopp, Attys., Dept. of Justice, also entered appearances for appellee.

Before ROBINSON and MacKINNON, Circuit Judges, and GOURLEY,^* Senior District Judge for the Western District of Pennsylvania.

MacKINNON, Circuit Judge:

Appellants, towing locomotive operators employed by the Panama Canal Company, brought this class action for overtime pay pursuant to 5 U.S.C. § 5544¹ on behalf of themselves and their fellow operators. They appeal from an order of the District Court,² following trial, dismissing their complaint on the alternative grounds that their action was precluded by the Portal-to-Portal Act of 1947,³ or that the time periods involved were so short as to fall within the de minimis rule noted by the Supreme Court in Anderson v. Mt. Clemens Pottery Company.⁴ Since we concur that the Portal-to-Portal Act applies here, we affirm the order of the District Court on that basis without reaching the question of the application of the de minimis rule.

I

In each of the three lockage areas of the Panama Canal vessels transiting the locks are guided and assisted by electrical towing locomotives moving along the walls of the lock chamber. Appellants here are operators of these locomotives.

The Canal is never closed, so the operators work eight-hour shifts that begin and end with the relief on the locomotive itself of the operator who worked the prior shift. Since any locomotive might be at any point along the chamber wall at the end of a shift, and since the operators are not permanently assigned to a specific locomotive, each shift begins with each operator checking an assignment board located near the gate to the lockage area to learn which locomotive he is to operate and where it can be found. He must then walk to the locomotive and be ready to assume control when the shift begins. Depending on the lockage area and the distance of the locomotive from the gate at that particular time, this entire process, including the walk to the locomotive can take as little as two minutes or as much as fifteen minutes. In order to assure that the operators are on their assigned locomotives at the beginning of the shift, the Company expects them to check in at the lockage area gate sufficiently ahead of the time their shift begins to enable them to note the assignment board and walk to their assigned locomotive.⁵ Operators are not required to punch a time clock and no formal time record is kept of the time they report and are relieved.

For several years prior to the initiation of this suit, appellants unsuccessfully attempted to persuade the Company that they were entitled to compensation for the time spent in checking the assignment board and walking to the locomotives from the gate. Since they work a full eight-hour shift on the locomotive,⁶ this extra time would have to be compensated at overtime rates. The issue in this suit is whether the operators are entitled to overtime compensation pursuant to 5 U.S.C. § 5544 for the time spent in checking the assignment board and walking to their locomotives.

II

The basic legal problem confronting us on this appeal is the reconciliation of two closely related but separate bodies of federal legislation concerning employment compensation. In the Fair Labor Standards Act of 1938 (FLSA),⁷ as amended and as modified by the Portal-to-Portal Act of 1947, Congress has enacted an extensive scheme of regulation of wages and hours to govern a broad portion of the private employment relationships in the United States.⁸ Through an even more complex body of legislation, of which Section 5544 is only a small part, Congress explicitly provides for the compensation and regulation of the terms of employment of various groups of employees of the Federal Government. Since the enactment of FLSA, both Congress and the courts have often looked to that body of employment regulations for guidance in analyzing and interpreting similar provisions in the complex of regulations governing federal employment. We continue that process here and conclude that the congressional policies behind the two acts require that the Portal-to-Portal Act provisions should apply to these federal wage board employees.

A. The Relationship of the Fair Labor Standards Act and the Portal-to-Portal Act

There is little room for question that if the Panama Canal Company were a private employer meeting the jurisdictional requirements of the FLSA,⁹ the appellants' suit would be precluded by the Portal-to-Portal Act. If the Company were covered by the FLSA, the locomotive operators would be entitled to the protection of Section 7(a):

No employer shall employ any of his employees . . . for a workweek longer than forty hours 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.

29 U.S.C. § 207(a) (1) (1970). The hours to be included in any "workweek" receive only a limited, exclusionary definition in the statute, 29 U.S.C. § 203(o) (1970), so the initial question would be whether the time spent in checking the assignment board and walking to the locomotives constituted part of the "workweek." In Anderson v. Mt. Clemens Pottery Company, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), the famous case that launched the Portal-to-Portal legislation, the Supreme Court was called upon to determine this question in a factual setting quite similar to the present case, and they found:

Since the statutory workweek includes all time during which an employee is necessarily required to be on the employer\'s premises, on duty or at a prescribed workplace, the time spent in these activities must be accorded appropriate compensation.

.... The time necessarily spent by the employees in walking to work on the employer\'s premises, following the punching of the time clocks, was working time within the scope of § 7(a). . . . Such time was under the complete control of the employer, being dependent solely upon the physical arrangements which the employer made in the factory. Those arrangements in this case compelled the employees to spend an estimated 2 to 12 minutes daily, if not more, in walking on the premises. Without such walking on the part of the employees, the productive aims of the employer could not have been achieved. The employees\' convenience and necessity, moreover, bore no relation whatever to this walking time; they walked on the employer\'s premises only because they were compelled to do so by the necessities of the employer\'s business. In that respect the walking time differed vitally from the time spent in traveling from workers\' homes to the factory. . . . It follows that the time spent in walking to work on the employer\'s premises, after the time clocks were punched, involved "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." . . . Work of that character must be included in the statutory workweek and compensated accordingly, regardless of contrary custom or contract.

328 U.S. at 690-692, 66 S.Ct. at 1194 (citations omitted) (emphasis added). It is clear to us that this test of the "workweek" would encompass the activities of the locomotive operators bringing the present action.

The congressional reaction to the Mt. Clemens Pottery decision was strong and quick, resulting in passage of the Portal-to-Portal Act at the very next session of Congress less than a year later. Focusing on the final clause of the quoted portion of the decision, Congress found

that the Fair Labor Standards Act of 1938, as amended, has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers with the results that, if said Act as so interpreted or claims arising under such interpretations were permitted to stand, . . . a substantial burden on commerce and a substantial obstruction to the free flow of goods in commerce would result.

Portal-to-Portal Act of 1947, § 1(a), 29 U.S.C. § 251(a) (1970).

The operative provisions of the Portal-to-Portal Act which reversed the Mt. Clemens Pottery decision are:

(a) Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the FLSA . . on account of the failure of such employer to pay an employee . . . overtime compensation, for or on account of any of the following activities of such employee . . .

(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

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