Walling v. Portland Terminal Co., No. 4111.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: MAGRUDER, MAHONEY and WOODBURY, Circuit
• Citation: 155 F.2d 215
• Parties: WALLING v. PORTLAND TERMINAL CO.
• Docket Number: No. 4111.
• Decision Date: 29 April 1946

155 F.2d 215 (1946)

WALLING
v.
PORTLAND TERMINAL CO.

No. 4111.

Circuit Court of Appeals, First Circuit.

April 29, 1946.

155 F.2d 216

Morton Liftin, Atty., William S. Tyson, Acting Sol., and Jeter S. Ray, Asst. Sol., all of Washington, D. C., George H. Foley, Regional Atty., of Boston, Mass., George W. Jansen, Supervising Atty., of Washington, D. C., and Harry A. Tuell, Senior Atty., of Boston, Mass., for appellant.

E. Spencer Miller, of Portland, Me., for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

The district court denied an injunction sought by the Administrator of the Wage and Hour Division of the United States Department of Labor against the defendant for alleged violations of §§ 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (2, 5), and from that decision the Administrator has appealed. This case calls upon us to determine whether persons who are engaged in training for positions with the defendant company as yard brakemen are "employed" by the company or are "employees" of the company during the training period within the meaning of § 3(e) and (g) of said Act, 29 U.S. C.A. § 203(e, g). If these so-called "trainees" or "learners" are "employees" then the defendant must pay them the minimum wages and keep the records required by §§ 6(a) and 11(c) of the Act, 29 U.S.C.A. §§ 206(a), 211(c).

Because of the disposition we make of the case, it is unnecessary for us to consider whether these trainees are engaged in interstate commerce.

The defendant operates a railroad terminal at Portland, Maine, and employs yard crews in the operation of its facilities. For some years it has been the custom of the defendant and other railroad companies to require all inexperienced applicants for jobs as yard brakemen to go through a training period. Prospective workers are required to file a formal application for employment, to take an eye test and undergo, at their own expense, a physical examination by a physician designated by the company. If the applicant passes these examinations he is assigned to a conductor who is in charge of a yard crew of three regular men and he goes through a training period. The trainees are given an opportunity to observe the type of work they will do when and if they become regular brakemen. Under supervision of regular crew members they are gradually permitted to do more and more of the work which the regulars do until such time as the conductor deems them competent to serve without supervision. If a trainee finishes his training period and is certified by the conductor as competent to carry out the duties of a brakeman, his name is placed "on the board", which means that he is eligible for employment as a regular. Before October 1, 1943, the trainees were not paid during

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the training period. Since then the company has paid each trainee $4 a day for each eight hour day of that period if he finishes his training and is placed "on the board".¹ If he does not complete his training period or is not certified as competent, he receives nothing for the time he has put in. The trainees are informed of these provisions in regard to compensation before they are permitted to start their training. The length of the training period required depends upon the aptitude and skill exhibited by the individual trainee and averages about seven or eight days. The maximum length of the period is two weeks. The application for employment which is signed by the prospective trainee states: "It is agreed by me to serve for at least two weeks under instructions of a conductor for the purpose of learning the duties and qualifying for such position, employment to be subject of (sic) passing required examinations on the operating rules, the working rules and regulations as from time to time applied, and the approval of the designated officer." During the period of training, the trainee is expected to be present with the crew to which he has been assigned during the working hours, which are normally eight hours a day, but are sometimes longer. As a matter of practice, the trainee is not required to pass any examination on the rules of the company, though he is required to copy those rules into a note book

The court below found that the work of the trainee "is of no immediate advantage to the Railroad * * * as the trainee does not displace any member of the regular crew at the time. Rather, it is a disadvantage, because a novice undertakes the work to get experience while a trainman stands by watching him, and the operation is apt to be impeded rather than expedited." It found, however, that the training program enables the railroad to obtain "a pool of qualified workmen to draw upon * * *". It also found that the trainee "is not subject to the rules or discipline applicable to an employee and is not considered such".

The finding of the district court that the defendant does not pay the trainees the minimum wage required by § 6 of the Act aside from the $4 allowance and does not maintain the records required by § 11(c) is not in dispute. Thus the sole question presented to us is whether the trainees here under consideration are "employees" within the meaning of the Act, for if they are, the injunction sought by the Administrator should have been granted.

Section 3(d) of the Act defines the word "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee * * *". Section 3(e) defines an employee as "any individual employed by an employer" and Section 3(g) tells us that "`Employ' includes to suffer or permit to work." Under these definitions, an employee is any individual whom an employer suffers or permits to work. If these definitions were the sole criteria for determination, then it would seem that these trainees are employees, for they are certainly permitted to work on the premises of the Portland Terminal Company under any common definition of the word work. But did Congress intend to include in the classification of employees all persons whom an employer suffers or permits to work? Did Congress

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intend to compel an employer to pay the minimum wage required by the Act to a person who voluntarily and purely for his own benefit seeks to labor under an employer's control? Suppose an author desired to work in the train yards in preparation for writing a novel and requested the Portland Terminal Company to give him an opportunity to do so. Would the Terminal Company be obligated to pay him the minimum wage, when the author neither sought nor expected pay? It hardly seems that...