Mitchell v. Mitchell Truck Line, Inc.

• Decision Date: 31 January 1961
• Docket Number: No. 18412.,18412.
• Citation: 286 F.2d 721
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. MITCHELL TRUCK LINE, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

286 F.2d 721 (1961)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. MITCHELL TRUCK LINE, INC., Appellee.

No. 18412.

United States Court of Appeals Fifth Circuit.

January 31, 1961.

Robert E. Nagle, Atty., Dept. of Labor, Washington, D. C., Earl Street, Atty., Dept. of Labor, Dallas, Tex., Bessie Margolin, Asst. Sol., Harold C. Nystrom, Acting Sol., Dept. of Labor, Washington, D. C., for appellant.

J. Edwin Smith, Arthur F. Thomson, Houston, Tex., Smith & Lehmann, Houston, Tex., of counsel, for appellee.

Before CAMERON and BROWN, Circuit Judges, and HANNAY, District Judge.

JOHN R. BROWN, Circuit Judge.

We deal here with the problem of the sufficiency of proof of damages for underpayment of minimum wages and overtime under the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219. The District Court, being of the strong view that fixing some dollar amount would involve speculation, dismissed the actions altogether despite the convincing showing that some work was regularly done without compensation as required by the Act. We disagree and reverse. In doing so we must also consider the question whether prosecution of these suits by the Secretary of Labor for the eight individual workers amounts to forbidden barratrous solicitation.

The suit was filed by the Secretary on behalf of eight truck drivers who had worked for the employer, Mitchell Truck Line, Inc. The employer, as its name implies, was engaged in the business of transportation. It maintained a fleet of trucks of variable sizes which were used in hauling sand, gravel, asphalt hot-mix, dry concrete batch, and similar materials. So far as this record reveals, substantially all of its work was done for prime contractors on highway construction and rehabilitation jobs. Its principal truck yard was maintained in Houston, although when hauling for some contractors on major projects far removed from Houston, suitable temporary truck yards would be established.

The drivers were generally paid by the hour. But on some kinds of work and perhaps some types of trucks, pay was on a piece-load basis. The hourly wage ostensibly met the statutory minimum, but whether it or the wages based on piece-work were actually sufficient for straight and overtime under the statute depended on the time the drivers were actually "working" for the employer. The solution of that problem relates primarily to the time spent in these activities: (a) checking oil, grease, water, tires, etc. at the truck yard each morning; (b) driving from truck yard to the prime contractor's road-materials-plant for loading; (c) waiting in line to be loaded at the materials plant; (d) idle time awaiting repair after breakdown of truck; (e) returning to truck yard from place where last load was dumped on contractor's job site; and (f) cleaning up truck and refueling at truck yard at the day's end.

As the case was tried by the Judge after hearing all of the use-plaintiffs in open Court, the fact findings come here with the substantial buckler and shield of F.R.Civ.P. 52(a), 28 U.S.C.A. Rea Construction Co. v. B. B. McCormick & Sons, 5 Cir., 1958, 255 F.2d 257, 258. But in arriving at a contrary result we do not credit any testimony rejected by the District Judge, nor do we reject any credited by him. We can agree wholeheartedly with the Judge that in many respects the evidence was most unsatisfactory. And yet the whole burden of the record convincingly demonstrates some things to be virtually undisputed. It is on these that the District Court made its error.

The drivers as a general rule reported to the employer's truck yard between 5:00 and 6:00 a. m. The drivers to be used that day were given their orders by the foreman. Each driver selected for work was then expected to make a routine check of the fitness of his truck. This included checking the air in the tires, water and oil for the motor, and if not done the night before, refueling with gasoline. This took in the neighborhood of 10 to 15 minutes. With that done, the driver then had to go from the employer's truck yard to the materials plant. When the operations were conducted in and near Houston, the trip from the employer's truck yard to the batch asphalt, or other material plant of the prime contractor, generally took 15 to 30 minutes depending on traffic. When a temporary truck yard was set up by the employer for operations distant from Houston, the time and distance were in some instances perhaps shorter. But one such project referred to in the evidence involved a distance of 12 miles which, again, at reasonable speed meant a time of 25 to 30 minutes. Upon arrival at the materials plant, the trucks would line up for loading presumably under a hopper or loading crane. When loaded, they would depart for the construction job site at which point they would dump the material as directed. The drivers had nothing to do with spreading or handling the materials at the job site. Except for occasional and unscheduled disruptions either from a plant or truck breakdown, this kept on during the day. After delivering the last load to the construction job site, the truck would then proceed back to the employer's truck yard. Either while en route (at some suitable place) or at the employer's truck yard, the driver would then have to clean up the truck by scraping the body free of any residue materials hauled that day. And at the truck yard he would refuel the truck with gasoline. This could take quite some time depending on the number of trucks in line at the gasoline pumps. The trucks were then parked and the men went home by their own means.

What the drivers had to do — summarized above — was undisputed. Not so clear was the time at which wages were thought to begin. We say "thought to begin" because a number of these drivers — with limited education and an expressed apprehension to press inquiry or complaint too far lest they lose employment — could merely say that they understood, or considered, or thought that their time began and ended at a certain point. Were this all, we would most certainly uphold the conclusion of the District Judge that proof was inadequate. And in that process we would reject, just as he did, the farfetched assertion of 4 and 5 hours daily uncompensated time supposedly supported by little black record books, all of which, oddly enough, were lost or thrown away.

But that is not all. Based on testimony of one of the executive officers of the employer, and admissions made by another which were testified to by the Wage and Hour Investigator without in any way thereafter being contradicted, it is clear that time did not begin until the truck was loaded at the materials plant. For none of the activities in (a), (b) or (c) did the employer pay compensation. At the other end of the day it is likewise positive that no work in (f) was paid for. And on the whole, especially the uncontradicted admission of the employer,¹ we think it undisputed that pay stopped when the last load was dumped, so category (e) went unpaid as well. Indeed, we think the District Judge concluded as much. For in the colloquy at the end of the evidence, the Judge categorically stated, "I do think that they did work time they were not compensated for, and I so find." And just previously he had declared, "I believe there is time that was not compensated for."²

On the basis of this undisputed or at least overwhelmingly established conclusion there can be no serious question about coverage and hence a liability on the employer for some amount. The material was being transported for direct use on construction or maintenance projects on existing interstate arterial highways. Mitchell v. Hooper Equipment Co., 5 Cir., 1960, 279 F.2d 893. And while urged below there is but a faint echo here that the work was within the exception of the Portal-to-Portal Act, 29 U.S.C.A. § 254(a). Despite language used in permissibly leading questions that hauling this material was each driver's principal activity, coverage or the exemption is not to turn on such artful use of words. The work which these men did was to drive trucks. That was their sole, only and principal activity. The trucks, to be sure, were to haul particular kinds of things, but they could not do so unless the truck was driven. For the truck to be operated, it first had to be (a) serviced, then (b) driven from the truck yard to the material plant, (c) placed under a load and loaded, deliver its load and (e) return to the truck yard for clean up and (f) refueling at night. These activities were certainly such an integral part and so indispensable to the employees' main job as to be outside of the Portal-to-Portal exemption.³

But what troubled the District Judge was not coverage or the unavailability of an exemption. What seemed to lead him to an outright dismissal was his many times repeated concern about the availability of evidence which would enable him to translate this into dollars. We do not minimize his difficulties, some of which seem to us at this vantage point to have been augmented by the manner in which the cause was submitted. But we do have the conviction that he was laboring over a misconception of the legal standard to be followed. That being so, to the extent that the dismissal or the formal conclusions, see note 2, supra, represent fact findings under F.R.Civ.P. 52(a) they are not to be judged in the light of the clearly erroneous test. Henderson v. Flemming, 5 Cir., 1960, 283 F.2d 882; United States v. Williamson, 5 Cir., 1958, 255 F.2d 512, 515; Mitchell v. Raines, 5 Cir., 1956, 238 F.2d 186; Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217.

The employer cannot really complain that matters are left in great uncertainty. It was required under the Act to do two principal things, (1) pay minimum wages and overtime, and (2) keep accurate time and wage records, 29 U.S. C.A. §§ 206, 207, 211. It certainly did not do the first since there was...