WALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor, v. HALLIBURTON OIL WELL CEMENTING CO., 152 F.2d 622

IIEALY, Circuit Judge. Appellant sued under § 17 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. '§ 201 et seq., to enjoin claimed violations ■of the overtime provisions of the Act. The appeal is from a judgment denying injunc-tive relief and dismissing the complaint. Appellee is engaged in cementing, testing, and surveying oil wells, renting tools and equipment to persons engaged in the drilling or operation thereof, and furnishing skilled employees to operate the equipment.

It has field employees consisting of cementers, testers, and so forth, whose work is not at a fixed establishment but at wells in the field. These employees operate from camps located at varying distances from the scene of their work. Since the oil well must be cemented, tested, or surveyed at a time specified by the owner or operator, appellee has no control over the volume of work nor the time when it must be done. Much time on the job is spent by the men in simply waiting around.

The employees who perform the services and operate the tools are trained men, and additional skilled labor is not obtainable in busy periods. The volume of work and the hours of employment fluctuate widely from week to week. In the slack periods the men are retained on the payroll. In some weeks the hours worked in the fashion described may exceed 100. Prior to the effective date of the Act the field employees were paid on a monthly salary basis. In June 1942, after the decision of the Supreme Court in Walling v. A. H. Belo Corporation, 316 U.

S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716, appellee by letter to its employees inaugurated the wage plan here under attack. In August of that year each field employee executed a formal written employment contract.

An excerpt from a typical example of these contracts will serve to disclose the nubbin of the controversy between appellee and the Administrator : “Employer agrees to employ Employee as a cementer and to pay Employee for his services a regular basic rate of 59 cents per hour for the first (40) hours of any workweek, and not less than one and one-half times such basic hourly rate of pay for all time over (40) hours in any workweek, with a guarantee that Employee shall receive for regular time and for such overtime as the necessities of the business may demand a sum not less than $6346 for each workweek.” The employee, under this arrangement, would be required to work 40 hours during any week at the hourly rate and an additional 44 hours at one and one-half times that rate before receiving any wages in excess of the minimum guarantee.

The question is whether the regular rate of pay is the hourly rate of 59 cents, as ap-pellee contends, or whether it is the weekly guaranteed minimum of $63.46 as asserted by the Administrator. The trial court found that each of the contracts involved “was actually a bona fide contract of employment and was intended to and did really fix the regular rate at which each of the respective field employees was employed.

Defendant agreed to employ and did employ, and each field employee agreed to be employed and was employed, at the hourly rate specified as the basic regular hourly rate in the written contract executed by the respective employees and defendant and in instances where the hourly rate was increased then at such increased hourly rate.” Faced with a wage agreement not substantially differing from the one before us, the Supreme Court, in Walling v. A. H. Belo Corporation, supra, reached a con-elusion with which the decision below conforms.

The Administrator- argues that in subsequent decisions the Belo case has been whittled down to a very narrow compass. However, in these later cases the Court has carefully and consistently refrained from overruling the earlier decision or denying its continued authority. Counsel for the Administrator has not been able to point out any substantial distinction between the Belo case and the present, nor have we been able to discern any difference in principle. Accordingly the judgment below must be affirmed.

A similar plan had been put in effect after the adoption of the Fair Labor Standards Act, but it had been abandoned March 1, 1942. Walling v. Helmerich & Payne, 823 U.S. 37, 65 S.Ct. 11; Walling v. Harnisehfeger Corp., 325 U.S. 427, 437, 65 S.Ct. 1246; Walling v. YoungermanReynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242.