Dunlop v. City Elec., Inc.

• Decision Date: 18 February 1976
• Docket Number: No. 74--2587,74--2587
• Citation: 527 F.2d 394
• Parties: 22 Wage & Hour Cas. (BN 728, 78 Lab.Cas. P 33,336 John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. CITY ELECTRIC, INC., and Paul R. Roland, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 394

527 F.2d 394

22 Wage & Hour Cas. (BN 728, 78 Lab.Cas. P 33,336

John T. DUNLOP, Secretary of Labor, United States Department

of Labor, Plaintiff-Appellant, v. CITY ELECTRIC, INC., and Paul R. Roland, Defendants-Appellees.

No. 74--2587.

United States Court of Appeals,

Fifth Circuit.

Feb. 18, 1976.

Wm. J. Kilberg, Sol. of Labor, Paul Brenner, U.S. Dept. of Labor, Washington, D.C., George T. Avery, Reg. Sol., Wm. E. Everheart, Atty., U.S. Dept. of Labor, Dallas, Tex., Carin Ann Clauss, Associate Sol., Donald S. Shire, U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant.

E. B. Fuller, Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, CLARK and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

This appeal is from a denial of relief sought by the Secretary of Labor under § 17 of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.), claiming back wages due certain employees for overtime work performed on behalf of their employer, City Electric, Inc. and the individual defendant, Paul R. Roland. ¹ The district court found that the work in question was performed before 8:00 a.m., the time at which the workday began, but held that the activities fell within the excepting language of § 4 of the Portal-to-Portal Act. This provision relieves employers from liability under the Fair Labor Standards Act for work performed preliminary to an employee's principal activity. 29 U.S.C. § 251 et seq. On this appeal, the Secretary urges that the judgment below rested on an erroneous reading of the Portal-to-Portal Act. ² We agree with these contentions. We reverse and remand.

The employees on whose behalf the Secretary brought this action are nonunion journeymen electricians and electricians' helpers employed to install and repair electrical wiring. Although the employees' compensation was calculated on the basis of a workday beginning at 8:00 a.m., the trial court found that they usually arrived between fifteen and twenty minutes early to perform tasks preparatory to their departing the shop for the various jobsites. These tasks included filling out daily time sheets, material sheets, and supply and cash requisition sheets, checking job locations, removing from trucks trash accumulated during the previous day's work, loading the trucks with standard materials and any additional materials needed for the particular day's job, fueling the trucks, and picking up electrical plans for the day's job. These duties were to be completed before 8:00 a.m. to enable the men to depart from the shop by the beginning of their paid workday.

On the basis of these tasks, regularly performed before each workday, the Secretary contended that the employees were entitled to overtime compensation as provided in § 7(a)(1) of the Fair Labor Standards Act. The statute provides in pertinent part:

Except as otherwise provided in this section, no employer shall employ any of his employees who . . . is engaged . . . in the production of goods for commerce 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. ³

The employer denied liability under the F.L.S.A., relying on § 4(a)(2) of the Portal-to-Portal Act of 1947, specifically relieving an employer from liability under the F.L.S.A. for 'activities which are preliminary to . . . (an employee's) principal activity or activities'. 29 U.S.C. § 254(a)(2). The single issue presented to the district court was whether the pre--8:00 a.m. tasks were compensable under § 7 of the F.L.S.A. as work performed in excess of the normal forty-hour workweek, or were 'preliminary' activities subject to the excepting language of § 4 of the Portal-to-Portal Act.

The district judge denied relief on two grounds. First, he found that most of the tasks, including the paper work and servicing of the trucks, fell within the § 4 exception and were therefore not compensable. Second, he found that those remaining tasks that 'may' have been compensable under § 7, such as the picking up of plans and loading of supplies, required so little time as to be de minimis and were therefore not compensable.

I.

By enacting § 4(a)(2) of the Portal-to-Portal Act, Congress relieved employers from back wage liability under the F.L.S.A. for time spent by their employees in 'activities which are preliminary to . . . (their) principal activity or activities' and which occur 'prior to the time on any particular workday at which (the) employee commences . . . such principal activity or activities.' ⁴ The use of the phrase 'activity or activities' was not inadvertent. The legislative history and the administrative interpretations of the Portal-to-Portal Act support the view that the phrase 'activity or activities' was used to dispel the notion that any activities not inextricably tied to a single predominant principal activity could be considered noncompensable. As the Secretary's Interpretative Bulletin, 29 C.F.R. § 790.8(a), notes:

The use by Congress of the plural form 'activities' in the statute makes it clear that in order for an activity to be a 'principal' activity, it need not be predominant in some way over all other activities engaged in in by the employee in performing his job; rather, an employee may, for purposes of the Portal-to-Portal Act, be engaged in several 'principal' activities during the workday. The 'Principal' activities referred to in the statute are activities which the employee is 'employed to perform'; . . . The legislative history . . . indicates that Congress intended the words 'principal activities' to be construed liberally in light of the foregoing principles to include any work of consequence performed for an employer, no matter when the work is performed. ⁵

This directive to construe liberally the terms 'principal activity or activities' to encompass 'any work of consequence' was reiterated by the President in his Message to Congress on Approval of the Portal-to-Portal Act ⁶ and has been followed by the majority of courts interpreting the two statutes. Decisions construing the Portal-to-Portal Act in conjunction with the F.L.S.A. make clear that the excepting language of § 4 was intended to exclude from F.L.S.A. coverage only those activities 'predominantly . . . spent in (the employees') own interests'. Jackson v. Air Reduction Co., 6 Cir. 1968, 402 F.2d 521, 523. No benefit may inure to the company. Blum v. Great Lakes Carbon Corp., 5 Cir. 1969, 418 F.2d 283, 287. The activities must be undertaken 'for (the employees') own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer'. Mitchell v. Southeastern Carbon Paper Company, 5 Cir., 1955, 228 F.2d 934. ⁷ The exemption was not intended to relieve employers from liability for 'any work of consequence performed for an employer' (Secretary of Labor v. E. R. Field, Inc., 1 Cir. 1974, 495 F.2d 749, 751), from which the company derives 'significant benefit'. Cherup v. Pittsburgh Plate Glass Company, N.D.W.Va.1972, 350 F.Supp. 386, 391, aff'd mem., 4 Cir. 1973, 480 F.2d 921, cert. denied, 1973, 414 U.S. 1068, 94 S.Ct. 578, 38 L.Ed.2d 474. Nor was the exemption to apply to work 'performed . . . before or after the regular work shift . . . (as) an integral and indispensable part of the principal activities for which covered workmen are employed'. Steiner v. Mitchell, 1956, 350 U.S. 247, 256, 76 S.Ct. 330, 335, 110 L.Ed. 267, 273.

In Steiner v. Mitchell, the Supreme Court held that time spent by employees taking showers and changing clothes after a work shift, when required by the employer as part of an industrial hygiene program, was not excluded from F.L.S.A. coverage by the Portal-to-Portal Act. On the same day, in Mitchell v. King Packing Company, 1956, 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282, the Court held that the knife sharpening activities of workmen employed as knifemen by a meat packer were an integral part of and indispensable to the various butchering activities for which they were principally employed, and were therefore compensable.

This Court has taken a broad view of 'principal activities'. In Mitchell v. Mitchell Truck Line, Inc., 5 Cir. 1961, 286 F.2d 721, we reversed a lower court decision denying compensation to employee truck drivers for time spent before their ordinarily compensable workday checking and fueling the trucks, driving them from the yard to the contractor's plant, waiting in line to be loaded and unloaded, returning to the yard from the last jobsite, and cleaning and refueling the trucks after the end of the workday. There too, we found such activities 'certainly such an integral part (of) and so indispensable to the employees' main job as to be outside of the Portal-to-Portal exemption'. 286 F.2d at 725.

In Secretary of Labor v. E. R. Field, Inc., 1 Cir. 1974, 495 F.2d 749, the First Circuit recently held that an electrician employee who drove his employer's truck, loaded with tools, supplies, and other employees, from various jobsites after the eight-hour workday, was entitled to withheld back pay due under the F.L.S.A. The court explicitly rejected the employer's claim of exemption under the Portal-to-Portal Act, on the ground that the exemption does not cover 'any work of consequence performed for an employer' and on the finding that the trucks driven by the employee 'were primarily utilized as an integral and indispensable function of the defendant business.' 495 F.2d at 751. These cases and others ⁸ support the liberal construction of the terms 'principal activity or activities' urged by Congress, the President, and the Secretary of Labor in his Interpretative Bulletin, thus providing broad coverage under the F.L.S.A. and limiting application of the Portal-to-Portal Act's...