Walling v. Nashville, Chattanooga & St. Louis Ry.

• Decision Date: 18 June 1945
• Docket Number: Civ. No. 524.
• Citation: 60 F. Supp. 1004
• Court: U.S. District Court — Middle District of Tennessee
• Parties: WALLING v. NASHVILLE, CHATTANOOGA & ST. LOUIS RY.

60 F. Supp. 1004

WALLING v. NASHVILLE, CHATTANOOGA & ST. LOUIS RY.

Civ. No. 524.

District Court, M. D. Tennessee, Nashville Division.

June 18, 1945.

George W. Jansen and Paul M. Cadra, both of Washington, D. C., and Jeter S. Ray, of Nashville, Tenn., for plaintiff.

Walton Whitwell and Edwin F. Hunt, both of Nashville, Tenn., for defendant.

STRUM, District Judge.

The question here presented is whether or not persons in training for positions with the defendant railway are, during their training period, "employees" within the meaning of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Asserting that they are employees, and that defendant is in violation of the Act with respect to them, plaintiff Administrator seeks injunctive relief to compel future obedience to the Act.

The controversy concerns: First, persons in training for firemen, brakemen and switchmen, both in the yards and on the main line, called "cubs." Second, persons in training for clerks, stenographers, callers, messengers, and the like, called "posters." The Administrator contends, while defendant denies, that during their training period these trainees are "employees" within the meaning of the Act and that they should be compensated, and records kept for them, as required by the Act and regulations thereunder.

It is obvious that an inexperienced person cannot safely perform the intricate and hazardous duties of a railway fireman, brakeman or switchman. Experience and specialized learning are essential, not only to efficiency, but to the public safety and to the safety of the trainmen. Even though a person is generally experienced in railroading, he must still learn the yards, tracks, signals, engines, mechanical devices, and many other things pertaining to the particular railroad on which he is employed, before he can perform his duties with safety to himself and to the public. In these vocations, proficiency depends upon manual as well as theoretical training.

In keeping with the custom of all railroads, this defendant requires applicants for employment as trainmen to undergo a period of preliminary training, called "cubbing," under the tutelage of a regular employee performing the same type of work. This training period covers from one to three weeks, depending upon the student's aptitude, during which time the trainee accompanies a regular crew who show him on the job how to perform the duties of that employment. The student learns not only by observation, but by actually performing the duties of the employment he seeks, always under the immediate supervision of a regular employee. When the student has apparently become proficient he is given an examination touching his qualifications. If he thus demonstrates his proficiency, he is then, but not before, placed upon the "extra board" as an employee, and called into service as needed. It is only from that time that they assume the responsibility of employees and are regarded as employees. Their seniority with other employees dates from that time, not from the time they commenced training. This practice is approved by the Railway Brotherhoods who bargain with the employer on behalf of its employees. Under these contracts one is not deemed an employee until he has finished his training and has been listed on the extra board.

As experience is also necessary in the second classification (clerks, messengers, etc.), though perhaps not to the same extent as in the case of the trainmen, applicants for these positions are required, in the same manner, to undergo a brief period of preliminary training, called "posting," under a regular employee performing that type of work. Although their duties are clerical or non-operational in character, many of them are frequently required to be in and about the yards, where their own personal safety is at stake. Even the purely clerical employee must have the necessary training to fit him to work harmoniously as an integral part of a highly specialized transportation system. The training period for these students is from three to ten days, after which they are put into a regular job when needed. During this training period these students accompany a regular employee, or under the guidance of a regular employee perform the duties of the job for which they are fitting themselves.

When a trainee enters upon his training, he does not regard himself as an employee, nor does the Company so regard him. He is under no obligation to become an employee when he finishes his training, nor is the Company under any obligation to so retain him. Whether or not he remains as an employee is entirely optional with him. During the training period the Company exercises no authority or control over his activities, nor the manner in which they are performed. He is not subject to discipline as an employee. No orders are issued to him, although trainmen trainees are given a suggested schedule to follow, which authorizes them to join a certain crew at a designated time. He is at liberty to do so or not, at his election. If he is absent, such absence does not in the slightest degree affect the movement of trains, or other work, as the trainee does no independent work and assumes no responsibility. There is always a regular employee to perform the duties of the job, who is responsible for the proper performance of the duties being learned by the student, and who receives standard pay therefor under the labor contracts. Students are present on the job solely for their own benefit and advantage, in order to qualify themselves for future employment. They are under no obligation to do any work whatever, nor even to report for duty, and when they do perform work it is not to serve the Company, but to enable them to learn the job. The regular paid employee is always there...