Irwin v. Clark
| Decision Date | 27 January 1969 |
| Docket Number | No. 22042.,22042. |
| Citation | 400 F.2d 882 |
| Parties | Sidney L. IRWIN, Ray Lester Long, Sherrill Long, Alan Duane Luther, Melvin Long, Wayne King and Harry Edward Allen, Appellants, v. Bob CLARK, d/b/a Oilfield Vacuum Service, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas R. Davis (argued), of DiGiorgio, Davis, Nairn, Hastin & Klein, Bakersfield, Cal., for appellants.
Wm. A. Quinlan (argued), of Doty, Quinlan & Kershaw, Fresno, Cal., for appellee.
Before ELY and CARTER, Circuit Judges, and SMITH,* District Judge.
Certiorari Denied January 27, 1969. See 89 S.Ct. 715.
We have for review a judgment of the district court denying in large part plaintiffs' claims for compensation under the Fair Labor Standards Act. The dispute involves the question of whether waiting time for which the plaintiffs were not paid, is working time which must be compensated.
The findings of the district court are not attacked on this appeal as being without support in the evidence. From them it appears: Defendant was engaged in the oil field servicing business. Plaintiffs were employed as truck drivers. Defendant's business was somewhat sporadic and the truck drivers were paid only when their services were utilized. They were on call twenty-four hours per day and seven days per week, but were not, as a condition of their employment, required to report at any given time, or remain for any stated period on the employer's premises. They were required to leave a telephone number where they could be called in the event that they were needed. Many of the plaintiffs frequently came to defendant's place of business between seven and eight o'clock A.M. voluntarily and without being called. Often if there was no work to be done at the time of reporting, they would wait for some period on the employer's premises on the chance that a work order would come in and that their services would be needed. While thus waiting, the plaintiffs performed no services for the employer, but the men who were on the premises and immediately available were the ones who received the most work. On this appeal plaintiffs do not contend that they would have been fired had they not reported and waited as they did. The trial court concluded as a matter of fact and law that the plaintiffs were not "hired to wait" but were "waiting to be hired".
Plaintiffs do not complain of a lack of evidence to support these findings, but rather contend that the men reported and waited as they did because of the likelihood of a better pay check. Plaintiffs conclude from this that the waiting was not voluntary as a matter of law. In short, it is plaintiffs' position that if there is any economic reward for waiting, that the waiting must be compensated. With this we do not agree.
Waiting time may be working time,1 but whether so is a question of fact to be resolved by appropriate findings of the district court in light of all the circumstances.2 From the Skidmore case it is clear that economic compulsion is not a controlling factor. In that case the firemen were required, as a condition of their employment agreement, to stay in or close to the fire hall. Presumably they would not be hired were they unwilling to do so. Even where the employment itself, and not just the amount of the emolument, depended upon waiting, the Supreme Court did not direct a judgment for the complaining firemen, but remanded the case for further proceedings. Implicit in the opinion of the Supreme Court is the idea that the district court might as a matter of fact find that the waiting time (compelled as it was) was not working time, so long as the district court disabused itself of the erroneous notion that waiting time could not be working time.
The element of economic compulsion may very well be one which a district court would find to be an important circumstance in the solution of some waiting time — working time problems but it is not as a matter of law a controlling factor.
When we view the findings of the district court as findings of fact, we cannot say that the court was in error in not allowing the matter of economic compulsion to control them. This is particularly so on this record which does not show how much work plaintiffs might have lost had they not waited. For all that the record shows, the economic compulsion may have...
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