LOCAL NO. 6167, UNITED MINE WORKERS OF AMERICA, et al. v. JEWELL RIDGE COAL CORPORATION, 145 F.2d 10

PARKER, Circuit Judge. This is an appeal in a suit instituted to obtain a declaratory judgment to the effect that the Fair Labor Standards Act of 1938 does not require that “travel time” from “portal to portal” be included in the “work week” of miners in bituminous coal mines. Plaintiff is the owner and operator of two mines in western Virginia employing around 900 miners. It brought a class action against two local unions of the United Mine Workers of America and certain of their officers and members.

An answer filed on behalf of the defendants denied plaintiffs right to the relief asked and by way of counterclaim asked recovery under the Fair Labor Standards Act for additional wages for work done between April 1, 1943 and June 20, 1943. The District Court rendered judgment for plaintiff and the defendants have appealed. The facts are fully stated in the opinion of the District Court. Jewell Ridge Coal Corporation v. Local No. 6167, etc., 53 F.Supp. 935.

In view of the long established custom in the coal industry not to include travel time in the work week, the collective bargaining contracts extending over a long period recognizing the “face to face” basis of pay, the testimony before the committees of Congress, the reason and purpose of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., and the probable effects and consequences of construing the act to require travel time in bituminous coal mines to be included in the work week, there is strong reason for thinking, as everyone connected with the matter seems to have thought until recently, that it was not the intent of Congress that the act should be so construed in its application to the coal mining industry.

The reasons in support of this conclusion are fully and ably set forth in the opinion of the learned judge below and need not be repeated. They would be convincing, were it not for the decision of the Supreme Court in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, etc., 321 U.S. 590, 64 S.Ct. 698, 703, which we do not think can be distinguished in principle from the case at bar.

A distinction is attempted on the ground that the travel time involved in the Mus-coda case involved travel in an iron mine and the trial judge had found that it was properly included in the work week, whereas the travel time here involved is in a coal mine and the trial judge has found it not propeidy included. This, however, is a distinction without a difference.

The record leaves no doubt that travel to the working face in a coal mine is substantially the same sort of thing as travel to the working face in an iron mine; and, while the Supreme Court in the case before it made reference to the findings below, it is clear from the opinion that, irrespective of the findings, the court was of opinion that travel of the sort here involved should be considered work within the meaning of the statute and included within the work week.

The court said in this connection: “We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others. Those are the rights that Congress has specially legislated to protect. Such a statute must not be interpreted or applied in a narrow, grudging manner. Accordingly we view Sections 7(a), 3(

g) and 3(

j) of the Act as necessarily indicative of a Congressional intention to guarantee either regular or overtime compensation for all actual work or employment. To hold that an employer may validly compensate his employees for only a fraction of the time consumed in actual labor would be inconsistent with the very purpose and structure of those sections of the Act. It is vital, of course, to determine first the extent of the actual work week. Only after this is done can the minimum wage and maximum hour requirements of the Act be effectively applied.

And, in the absence of a contrary legislative expression, we cannot assume that Congress here was referring to work or employment other than as those words are commonly used — as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business. “Viewing the facts of this case as found by both courts below in the light of the foregoing considerations, we are unwilling to conclude that the underground travel in petitioners’ iron ore mines cannot be 'construed as work or employment within the meaning of the Act.

The exacting and dangerous conditions in the mine shafts stand as mute, unanswerable proof that the journey from and to the portal involves continuous physical and mental exertion as well as hazards to life and limb. And this compulsory travel occurs entirely on petitioners’ property and is at all times under their strict control and supervision. “Such travel, furthermore, is not primarily undertaken for the convenience of the miners and bears no relation whatever to their needs or to the distance between their homes and the mines.

Rather the travel time' is spent for the benefit of petitioners and their iron ore mining operations. The extraction of ore from these mines by its very nature necessitates dangerous travel in petitioners’ underground shafts in order to reach the working faces, where production actually occurs. Such hazardous travel is thus essential to petitioners’ production. It matters not that such travel is in a strict sense a.non-productive benefit. Nothing in the statute or in reason demands that every moment of an employee’s time devoted to the service of his employer shall be directly productive.

Section 3(

j) of the Act .expressly .provides that it is sufficient if an employee is engaged in a process or occupation necessary to production. Hence employees engaged in such necessary but not directly productive activities as watching and guarding a building, waiting for work, and standing by on call have been held to be engaged in work necessary to production and entitled to the benefits of the Act. Iron ore miners traveling underground are no less engaged in a ‘process or occupation’ necessary to actual production. They do more than ‘stand and wait,’ Missouri, K. & T. R. Co. v.

United States, 231 U.S. 112, 119, 34 S.Ct. 26, 27, 58 L.Ed. 144. Cf. Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S.Ct. 221, 222, 72 L.Ed. 507, 66 A.L.R. 1402. Theirs is a fossorial activity bearing all the indicia of hard labor.” That the decision of the Court was understood by the Court itself to be based upon the underlying facts of the case, and not merely upon the

interpretation which the lower courts had placed upon those facts, is shown by the concurring opinions; which stressed the

interpretation made in the findings of the lower courts. If the

interpretation of the facts in these findings had been the controlling consideration in the majority opinion, there would, of course, have been no occasion whatever for the concurring opinions. Furthermore, where the facts of two cases are substantially the same, the law should not be applied differently because trial judges have looked at' them in a different way.

The record shows that travel in an iron mine is the same sort of thing as travel in a coal mine. 'The findings of the trial courts as to whether upon the basic facts travel time was part of the work week within the meaning of the statute were mere conclusions involving mixed questions of law and fact; and, the basic facts being the same, an appellate court cannot distinguish cases on the basis of such conclusions. In such case, the difference in conclusions involving mixed questions of law and fact is necessarily attributable to a difference in views as to the law or its application.

Equally vain is the attempt to distinguish the Supreme Court’s decision on the ground that no such custom or bargaining agreements existed in the case of the mining of ore as are shown in the case before us. The Supreme Court decided the point on two grounds:

(1) That the custom and agreements relied on were not sufficiently shown, and (2) that they were immaterial in any event.

After commenting on the failure of the lower court to find “immemorial” custom or collective bargaining agreements and saying that the lower court’s findings with regard thereto were not so clearly erroneous as to require that they be disregarded, the Supreme Court went on to say: “But in any event it is immaterial that there may have been a prior custom or contract not to consider certain work within the compass of the workweek or not to compensate employees for certain portions of their work.

The Fair Labor Standards Act was not designed to codify or perpetuate those customs and contracts which allow an employer to claim all of an employee’s time while compensating him for only a part of it. Congress intended, instead, to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act.

Any custom or contract falling short of that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be utilized to deprive employees of their statutory rights.” And in a note to the passage above quoted, the Court said: “Congress was not unaware of the effect that collective bargaining contracts might have on overtime pay. It expressly decided to give effect to two kinds of collective agreements, as specified in

Section 7(b) (1) and (2) of the Act. Cf.

Section 8(c). It thus did not intend that other collective agreements should relieve employers from paying for overtime in excess of an actual workweek of 40 hours, regardless of the provisions of such contracts.” What the majority of the court has thus so clearly said we are not at liberty to ignore. It is no answer that the case might have been decided on the ground that the evidence as to custom and contract was insufficient.

The court chose to place its decision on the additional ground that custom and contract were immaterial; and it is settled beyond controversy that in such case the decision is binding authority as to both of the grounds upon which it is based. Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48 S.Ct. 194, 72 L.Ed. 303; United States v. Title Ins. Co., 265 U.S. 472, 486, 44 S.Ct. 621, 68 L.Ed. 1110; Union Pac. R. Co. v. Mason City Co., 199 U.S. 160, 166, 26 S.Ct. 19, 50 L.Ed. 134; 14 Am.Jur. 298.

Nor is anything said in the concluding paragraph of the Supreme Court’s opinion upon which a distinction can be based. This is not a case “where precisely accurate computation is difficult or impossible”, nor is it one of the “borderline cases where the other facts give rise to serious doubts as to whether certain activity or non-activity constitutes work or employment.” Cf. dissenting opinion of Judge Sibley in the Muscoda case, 5 Cir., 135 F.2d 320, at page 323. What is involved is just the sort of activity as was held by the Supreme Court to “leave no uncertainty” as to its character as “work”.

Under the circumstances, there is nothing for us to do but reverse the decision below. If it is thought that the decision of the Supreme Court should be overruled or limited so as not to apply to a case of this character, that is a matter for the Supreme Court and not for us. The disturbing effect of the decision here will not be so great as it otherwise would, in view of the fact that, by agreement between the miners and operators, the portal to portal system of computing the work week has now been adopted in the industry.

An amended answer filed in the cause waives the right to additional wages due under the act prior to April 1, 1943, the date of the expiration of the contract between the union and the operators; and the amount claimed as additional wages between April 1 and June 20, 1943, is only the amount voluntarily awarded the workers in other mines as a result of the settlement arrived at when the “portal to portal” basis was adopted. The mines of plaintiff ¡ were excluded from the terms of that set-1 tlement, as we understand, so that the right, to an adjudication of the questions here involved would not be affected.

For the reasons stated, the judgment appealed from will be reversed and the cause will be remanded for further proceedings-not inconsistent herewith. Reversed.