*1 .590
рurchaser purchasers or . however, . It is from clear, 3§ of the National Banking Act that the state bank’s realty conveyed was not in respondent by to or vested means instrument deed, writing. There was a complete absence of any of the formal instruments or writings upon which the tax stamp is laid. Nor can realty be said to have been “sold” or vested in “pur- chaser or purchasers” within the ordinary meanings of Only those terms. by straining the realities statu- tory process consolidation respondent can be said to have “bought” or “purchased” the real property. That we are unable to do. judgment of the court below is therefore
Affirmed. TENNESSEE COAL, IRON & RAILROAD et CO. al. v. MUSCODA LOCAL No. 123 et al. Argued No. January 13, 409. Decided March1944. *2 Burr the Ten- L. Miller and Borden Nathan Messrs. Messrs. Coal, petitioner. & Railroad Co., nessee Iron B. White sub- All, William Bronaugh, L. S. M. and E. Messrs. and Co., & Iron mitted Steel Sloss-Sheflfield Borden Burr for the Rivers, R. T. Patton, T. F. Corp., petitioners. Republic Steel Q. Harris, J. Smith Messrs. with whom Crampton
Mr. Lips- James A. the brief Pressman were on and Lee {Mr. for respondents. appearance), an comb entered L. Robert whom Messrs. Fahy, with Genеral Solicitor Bessie Irving Levy, J. and Miss Maggs, Stern, B. Douglas Administrator brief, for the on the Margolin were Labor, Department Division, Hour U. S. Wage and intervener. Murphy Court. opinion delivered
Mr. Justice determining, problem here with We are confronted under- employment work what constitutes part Fair meaning ground iron mines within ore Act, § 29 U. C. Labor Standards 52 Stat. S. impression, of first arises out of question, This which is one conflicting upon pursued the actual activities claims based contract the iron ore mines. upon prior custom and only by discarding can be resolved formali- Such an issue attitude, recognizing adopting a realistic that we ties beings dealing with human and with a statute to them the fruits of their is intended to secure toil and exertion. mining companies, petitioners herein,
Three iron ore judgment declaratory filed actions1 determine whether spent by traveling underground iron ore miners “working from face”2 to and constitutes work or mines *3 employment for compensation paid must be under officials, respondent the Act. The labor and their unions petitioners’ representing employees, werе named as defend Wage ants and Hour Divi the Administrator of the and intervene. Department sion of the allowed to Labor was controversy The the of em only actual relates to hours ployment during period intervening the between the effec 24,1938, date of the the Act, tive October and dates when' respective the were initiated in 1941.3 April, actions It is 1 Declaratory Judg- These actions were instituted under the Federal Act, 955, 274D, They ments 48 Stat. 28 U. S. C. were § § purposes single consolidated for trial and the District Court entered a judgment. “working place The is in the face” the mine where the miners actually compensa- drill and load ore. The “face to face” basis of tion, by petitioners, only spent advocated includes the time at the working “portal portal” basis, proposed by respondents, face. The to spent traveling includes portal time between the or entrance to the working again, mine and the spent face and back as well the time at working the face. petitioners May paid Since have their miners for travel. pursuant compliаnce time contract opinion with the of the Ad- Wage underground ministrator of the and Hour Division that travel iron ore meaning mines is work within the of the Act. employ- constitutes underground if
conceded that travel maxi- statutory more than the ment, the miners worked one- to be one and and are entitled mum workweek ifBut for the excess hours. regular times the rate half limiting it thus workweek, excluded from the travel working pay- no overtime spent to the time at the face, ments are due. the District found hearings,
After extended Court every indicia degree the travel time “bears a substantial and physical by employer, supervision of worktime: necessary performed to be exertion, activity mental the occu peculiar conditions employers’ benefit, ruled that mining.” accordingly The court pation at the surface obtain time, spent as well as the time travel checking and carbide and ing returning tools, lamps 40 F. within the workweek. out, was included affirmed as to Appeals 4. The Circuit Court of Supp. findings on holding that the District Court’s time, travel substantial evidence. supported by that matter were Court, judgment however, modified the Circuit in the activi spent from workweek the time excluding rehearing denied, 2d 137 F. 320; at the surface. 135 F. ties the travel problem as to importance 2d 176. The certiorari.4 grant time led us to decide upon called whether
Specifically we are Appeals properly the Circuit Court of District Court and *4 were work within the mean- that iron ore miners found at engaged underground in of the Act while travel ing obliged property on the of and perform were they necessary as a concomi- petitioners under the direction of that peti- record shows employment. tant of their underground iron ore twelve operate and tioners own 4 sought from the workweek of has been of the exclusion No review do not discuss that issue the surface. We therefore the activities at Co., Pipe Alexander v. Cosden Line U. S. and this case. cases cited. general that the County, Alabama,5 Jefferson and
mines findings underlying of the courts below pattern of facts of these mines.6 essentially is the same each arriving company begin day by The miners on housе, to the bath property going at a hour7 and scheduled then they change working They where into clothes.8 tally portal; walk near mine entrance or to the house they checks, hang up there check and individual brass tally petitioners, furnished on or check-in board. This enables the foreman and officials to at a other tell glance those for work reported individuals who have and those production and service that are incomplete crews and need of substitutes. filled and the Vacancies are head miners any necessary and crews receive instructions. In addition, each miner either a battery lamp rents for the day or buys a day can of carbide each or two under ground illumination purposes. mines, And at some of the
5The Coal, Company eight Tennessee mines; Iron & Railroad has Company, mines; Sloss-SheffieldSteel & Iron Republic two Steel Corporation, two mines. 6As the pointed out, District Court set conditions forth record are not intended be used petitioners’ to censure manner of mines, maintenance of their may “for these conditions well be normal practically conditions iron ore mines and Moreover, inevitable.” the record indicates Spaulding Republic that the mine of the Company operated has been only intermittently and experimentally during the last years many of the conditions in the present. other mines are not The ore is close to the surface miners way can walk all the to the working faces. 7 One of the Company’s superintendents Tennessee stated that “Whenever a man late, comes to the dragging along mine and en- courages late, setting others to be he is example. a bad I want this thoroughly—men understood time; must be on we don’t care whether they not, work here they or but if they want to work here will have to be on time or else will be disciplined, discharge.” even to 8The use of the house, change bath house, optional. Some change miners their clothes at home and make no use of the bath by petitioners. houses furnished
595 many box house stop miners at a tool or tool on the surface necessary to tools for their pick up supplies other small work. These consume but a few minutes. activities required report
The miners аt the load thereupon ing platform portal at the mine and await their turn to ride down Originally the inclined mines. shafts working miners could reach the entirely by faces foot, but as the shafts in length petitioners provided increased transportation down main The shafts. miners ac cordingly part ride of the way working to the faces ore skips regular man trips,10 operate on narrow gauge tracks by hoisting means of ropes. cables or operation of skips trips and man is under the strict con trol supervision petitioners at all times and they refuse permit the miners to walk rather than ride. Regular schedules are fixed; loading and unloading are supervised; the speed trips is regulated; and the conduct of the during miners prescribed. rides is
About three to trips six are made, depending on the size of the mine and the number of miners. Ten men. sit on each man trip car, while from 30 to 40 are crowded into an ore skip. They are jump forced to several feet into the skip from the loading platform, which not infrequently injuries causes feet and ankles, hands. The skips are usually overcrоwded and the men stand tightly pressed together. The heads of most of them are a foot or more skip ordinary An is an ore four-wbeeled ore box car made of steel. normally transporting It used ore and its floor is often covered haulings. muck from with such riding When men are in the car it skip trip.” is known as a “man It is used for purposes such in the Company mines the Tennessee Republic and the Company. 10 regular trip specially A man is a constructed series of ears. Each eight long car is about feet stairway. resembles a Five men sit facing either outwards, on side of the car back to back with five men trip on the other side. The man mines used the Sloss Company consists of six such cars. *6 skips usually But since the top skips.
above the inches, few the miners ceilings by only clear the low mine a They over. ride close compelled bend thus a “spoon-fashion,” with bodies contorted aiid heads drawn skip ribs, injured below Broken top. the level of the arms legs, bloody result; and and heads often even fatalities are not unknown. length dark, of the rides malodorous moist,
shafts varies from different mines feet to 3,000 12,000 feet. The thеn miners climb out of the skips and trips underground man at the man-loading platforms or “hoodlums” and journeys continue their on foot for dis- tances up two miles. These subterranean walks are filled with perils. discomforts and hidden The surround- ings are dark and dank. The increasingly air is warm and humid, poor. ventilation Odors of human sewage, resulting from complete a absence of sanitary facilities, permeate the atmosphere. Rotting mine timbers add to the befouling of the Many air. passages are level, but others take the form of tunnels and steep grades. Water, muck pieces and stray of ore often make the foot- ing uncertain. Low ceilings must be ducked moving and skips ore must be avoided. Overhead, a maze of water and air pipe lines, telephone wires, and exposed high volt- age electric cables and present wires ever-dangerous ob- especially stacles, to those transporting tools. At all times subject miners are to the hazards of falling rocks. working most Moreover, equipment, except drills heavy supplies, kept near the “hoodlums.” This equipment day is carried each foot the crews through perilous these from paths the “hoodlums” to the working faces. Included are such fifty-pound items as sacks of dynamite caps, dynamite, fuses, gallon cans of oil and supplies. servicemen's drilling Actual and loading of the begin ore on arrival at the working faces, interrupted only by thirty minute lunch period spent at or near the faces. course, work where- men, maintenance The service and they ever are needed. working day’s
At duties at the faces, the end pick their lay drills, up equipment down their other miners They the “hoodlums.” steps and retrace back to skip trip wait there until an ore or man is available to transport portal. arriving them back to the After on the surface, they return their small tools and lamps, pick up tally their brass checks at the house, proceed to bathe change their Finally clothes at the bath house. *7 and return petitioners’ property leave to their homes. In determining underground whether this travel con- stitutes compensable employment work or within the meaning of the Fair Act, Labor Standards we are not guided by any precise statutory definition of work or em- 7 ployment. (a) merely Section provides that no one, engaged who is commerce inor the production goods of for commerce, employed shall be for a workweek longer prescribed than the hours unless compensation for the excess hours at a rate not less than one and one-half regular times the rate. Section 3 (g) defines the word to “employ” include “to suffer permit or .to work,” while (j) § states that “production” “any includes process or occupation to necessary production.” . . . like the provisions, portions these other
But of the Fair Act, are remedial Standards and Labor humanitarian in are not here dealing We with mere purpose. chattels or rights trade with the of but of those toil, articles who a full who sacrifice measure of their those freedom and profit the- and talents to use others. Those Congress has rights specially legislated protect. must not be interpreted a statute or in a applied Suсh grudging manner. narrow, Accordingly (a), we 7§§ .view (g) (j) necessarily.indicative and 3 of the Act as , Congressional guarantee regular either or intention compensation employ- overtime actual work or all validly compensate employer may that an ment. To hold a fraction of the time consumed only employees his very with purpose be inconsistent labor would actual vital, sections of the Act. It is of those and structure the extent of the actual work to determine first course, wage can the minimum Only after this is done week. Act requirements effectively hour be and maximum And, contrary legislative the absence of a applied. Congress cannot assume that here expression, we work or other referring employment than as those commonly meaning physical words are used—as or men burdensome (whether not) tal exertion controlled or employer pursued required necessarily pri marily for the benefit of the employer and his business.11
Viewing the facts of this case as found both courts light foregoing in the considerations, below we are unwilling underground to conclude that the travel in peti- tioners’ iron ore mines cannot be construed as work or em- ployment meaning within the of the Act. The exacting dangerous conditions the mine shafts stand as mute, proof unanswerable the journey from and to portal physical involves continuous and mental exer- *8 tion well as as hazards to life and limb. And this com- pulsory travel entirely occurs on petitioners’ prop- erty and is at all times under their strict control and supervision.
11 Dictionary Webster’s New (2d International ed., unabridged) defines as work follows: “1. To exert oneself physically mentally or purpose, esp., for a in speech, common to exert doing oneself thus in something chiefly undertaken gain, for improvement for in one’s material, intellectual, physical or condition, compulsion or under any kind, distinguished from something primarily undertaken for pleasure, sport, gratification, immediate merely or as incidental (as disagreeable to other activities a walk going involved in to see friend, packing a or the pleasure of a trunk a for trip) . . .” The “employ” wоrd is defined as follows: “2. To make use of the serv- of; give employment to; ices to entrust duty with some or behest.”
599 travel, furthermore, Such is primarily undertaken the convenience the miners and bears no relation whatever to their needs or to the distance between their homes and mines.12 Rather the travel time spent petitioners for the benefit of iron mining ore The extraction operations. of ore from these mines by its dangerous very nature necessitates travel petitioners’ underground shafts order to reach the working faces, production where actually occurs. Such hazardous travel is thus essential to petitioners’ production. It matters not that is, such travel a sense, strict a non productive benefit. Nothing the statute inor reason that every demands moment of an employee’s time de voted to the employer service of his shall be directly productive. (j) Section 3 of the Act expressly provides that it is sufficient if an employee is engaged in a process or occupation necessary production. Hence employees engaged in such necessary but not directly productive watching guarding activities as a building,13 waiting work,14 standing by call15 on have been held to engaged be work necessary to production and entitled to the benefits Act. Iron ore miners traveling underground are no less engaged “process or occupa necessary tion” actual production. They do more than Missouri, wait,” “stand and K. & Ry. T. Co. v. United States, 231 U. S. 119. Cf. Brick Co. v. Bountiful Giles, 276 U. S. 158. is a Theirs fossorial activity bearing all the indicia of hard labor. Cf. Dollar v. Supp. 822; 43 F. Co., River Dumber Caddo Sir Gracey Drilling Corp., 29;
mon v. Cron &
Supp.
F.
Bulot v. Free
Supp. 380; Walling
45 F.
port Sulphur Co.,
v.
Peavy-Wilson
Dumber
Supp.
49 F.
Co.,
Walton v. Southern
Package Corp.,
540;
320 U. S.
Kirsch-
baum Co. v.
The conclusion that
Administrator
been reached
mines is work has also
17, 1941,
Hour
On March
Wage
Division.
representative
an informal
of hia
report
he approved
investigation
an
of the “hours worked”
upon
based
underground
mines in the
metal
United States.
workday
that “The
under
report concludеd,
part,
ground
mining
reports
starts when the miner
metal
near
collar
mine
duty
required
[portal]
at or
he
the end of the
and ends when
reaches the collar at
Mining
Carver, 41 F.
shift.” See also Sunshine
Co. v.
In
Supp.
addition,
important
statutes of several
mining
eight-hour
day
metal
states
that
provide
per
underground.16
upon
limitation
work includes travel
“im-
alleged
Petitioners, however, rely mainly upon the
agreements
prac-
memorial custom
at by
arrived
bargaining”
tice of collective
which are said to establish
“the 'face to face’ method as the standard and measure
specifically
Arizona and Utah statutes
include all the travel time
eight-hour
within the
(1939),
4,
limitation. Ariz. Code
56-
Ann.
vol. §
115;
(1943),
Supreme
Utah Code Ann.
49-3-2. The
Court of
§
Const.,
18, 4,
Montana has construed Mont.
art.
and Mont. Rev.
§
(1935), 3071,
provide
eight
day
Code
per
which
hours of work
§
underground mines,
time,
to include all travel
Butte Miners’ Union
Mining
Copper
Co.,
No. v. Anaconda
418,
112 Mont.
2d 148.
118 P.
Comp.
(1929),
10237, provides
Nevada
Laws
the limitation
§
apply
way.
Wyoming
shall
(1931),
to travel one
But
Rev. Stat.
63-107, specifically
underground
excludes
travel from the limi
§
tation;
interpretation
like result has bеen reached
of California
1909,
181, p. 279,
Stats.
ch.
Application
in Matter
Martin,
157 Cal.
The short “immemo- any that such the evidence find from able to existed. bargaining agreements or collective rial” custom its directed properly making findings, its court, That concerning petitioners’ the evidence solely to attention and contraсts disregarded the customs mines and iron ore evidence industry. ample There was mining in the coal of the stat- of the enactment crucial date that to the prior their em- contracts with petitioners’ ute, provisions forty hour workweek “at the usual relating to a ployees amount of time no relation working bore place” Instead, received. compensation or the actually worked to have been related appear working payment time and Hence con- day. mined each such iron ore amount of any if workweek are of little defining the provisions tract determining compensation the workweek value be requires directly re- a statute under performed. work to the actual lated conclusive, if substantial, evi- there was Likewise recognized no inde- petitioners to 1938 prior dence engaged no bona fide collec- unions and labor pendent eye reaching agreements an toward with bargaining tive company-dominated with Contracts workweek. on the discriminatory independ- actions toward unions and ar- fаirly for “contracts poor substitutes ent unions bargaining.” collective through process rived at tonnage basis, on a well and work as wage payments workweek, to the were all provisions as the contract as The futile efforts the miners by petitioners. dictated their travel compensation for at partial to secure least arrangements, existing with and their dissatisfaction there conclusion that negative moreover, there compensation workweek real custom to the turbulent and based on so A cannot be for. valid custom than something more uni requires it history; discordant *11 working imposition of conditions.17 arbitrary lateral and as findings the District Court’s say cannot that thusWe as to com clearly are so erroneous to custom and contract disregard us to them. pel may immaterial that there have any event it is
But contract consider or not to certain prior been custom a not to compass within the of workweek or com work portions their work. The employees for certain of pensate designed codify Labor Standards Act was not or Fair allow an and contracts which those customs perpetuate an time while com employee’s to claim all of employer in Congress him it. part intended, of pensating only guarantee policy achieve a uniform national of stead, to engaged or ing employment for all work compensation or Any the Act.18 custom con by employees covered falling agreement basic an policy, tract of that like short wage requirements, than minimum pay less can employees deprive statutory not be utilized to of their 17 requisites has one of the valid Blackstone said that of a custom peaceable, acquiesced in; subject that “it must have been and not is dispute. original For as customs owe to contention their being consent, immemorially disputed, common either at law otherwise, proof wanting.” is a that such consent was 1 Commen- Pollock, Jurisprudence, (6th 77. also First Book 283 taries See < ed.). 18Congress bargain- unaware of the effect that collective might ing pay. expressly contracts have on overtime It decided to collective give agreements, specified effect to two kinds of as 7 in § (c). (1) (2) of 8 (b) the Act. Cf. It thus did not intend that § agreements employers should paying collective relieve from other an actual hours, regard- overtime excess of workweek of provisions contracts. of such less of 572; Missel, U. S. v. Motor Co. Overnight Cf. rights. & Louisville also See 366. Hardy, 169 U. S. v. Holden v.Co. J. I. Case 467; 219 U. S. Mottley, R. Co. v. Nashville Telegra- Railroad Board, Order 332; 321 U. S. Labor U. S. Agency, 321 Railway Express v. phers provi- course, reasonable foreclose, does not This computation governing or custom contract sions of dif- computation accurate precisely hours where work with here concerned Nor are we impossible. ficult or in borderline may have contract that custom effect doubts to serious give rise the other where facts cases non-activity constitutes activity or certain to whether case this It is sufficient employment. work or mines in iron ore underground travel relating to the facts as work. its character uncertainty as to leave no be compensation requires appropriate Act thus deprive would conclusion Any other for such work. them guaranteed just remuneration iron ore miners of *12 strength time, liberty and contributing their by the Act for for the benefit of others. primarily accordingly the below is judgment of court
The
Affirmed. Frankfurter, concurring: Mr. Justice us within record before lies legal question on the 7 of the Fair Labor Stand- compass. Section a narrow at compensation a payment commands the ards Act regular one-half times of not less than one and rate engaged the statute who is every employee for under rate longer forty-four forty-two than “for a workweek” respectively, during year, the first or second hours hours forty date of the section after the effective § 29 U. S. C. Con- 52 Stat. thereafter. and there define “workweek” gress explicitly did pertinent in the materials to construc- nothing available finding “workweek,” applied that as tion warrants a in the iron had so settled a industry, the workers ore Labor of the Fair time of the enactment meaning at the by reference. incorporated Act as to bе deemed Standards statute, applied as in this “workweek” result, aAs no tech- has record, on this industry this workers to those known meaning so well is, a meaning, nical by courts applied be industry as to in this particular indus- men in the by invoked enforcing the statute when when Con- event, case, of this try. purposes For colloquially— it “workweek,” it used gress used the word meaning of common merely term carries understanding. adjudication agency preliminary
An
administrative
like
Wages and Hours
arising under the
Law,
of issues
Act,
Relations
by the National Labor
that established
application
And
by Congress.
so,
provided
was not
to the multifarious
colloquial concept “workweek”
of this
Congress
industry
was left
situations
American
by judicial proceedings. These facts
ascertainment
case, by judge
by jury or,
either
a
this
a
to be found
judge’s
it
sitting
jury.
And so here was
without
part
what time and
on the
duty
energy
to determine
constituted a “work-
employees
involved
this suit
After a trial
employees
petitioners.
week” of these
during
testi-
which lasted for about
three
weeks,
ex-
2,643
heard and voluminous
mony covering
pages was
made its find-
introduced,
were
the District Court
hibits
A
ings
judgment
employees
for the
based on these
fact.
findings
Appeals.
was affirmed
the Circuit Court of
Supp.4;
40 F.
We then a of two courts based on find- have Af- ings findings. ample with evidence to warrant such by is therefore demanded. firmance this Court concurring: Jackson, Me. Justice my probably present any in does not This case view if or, so, law it is one with a obvious question very in the Labor Standards Congress Fair answer. When longer forty hours,” than workweek Act referred to “a in fact workweek considered, I that what was a assume, it the determina- Therefore, should be a workweek law. other, govern any case does not particular tion of on its own industry each establishment and stands conditions.
A of this Court makes concur seasoned and wise rule final here in the findings rent of two courts below absence Tire & Goodyear error. very exceptional showing Co., 275; District Ray-O-Vac Rubber Co. v. 321 U. S. Schofield, Pace, Baker Columbia v. 698; 320 U. v. S. Manufacturing United Co. v. Williams U. 118; S. Shoe Machinery Corp., U. S. declaratory
In these mining companies sought eases ore judgments getting time the shafts miners’ trаvel time, to and from and some other mining operations, actual is not to be workweek defined for over- counted They, Act. purposes the Fair Labor Standards but the alleged it, that the custom of mines excluded trial court “The evi- said, considered all the evidence and companies dence has disclosed no custom.” The also such during travel activity contended that the is not the na- hearing conflicting After of work. a mass of testi- ture mony “They the trial court of these are per- said activities, premises employer, formed on the of the the furtherance employer’s business, with no benefit to the employee him in performance to aid of work (except for the conditions created and controlled employer), under employer, responsibility involve to the employer though exertion, burdensome, even physical on the part employee. No characteristic of work is lack- be the ing.” These were found to facts the two courts and, might if below whatever we decide we were trial court hearing the evidencе in the first instance, we cannot with them wroiijg our limited review hold on this record. *14 such travel accepted, ruling
If these facts are I would the workweek manifest. part time is seems controlling affirm on these facts.
Me. Justice Robeets: ap- in be this case question for decision should pre- not broad humanitarian proached any on the basis of we not with a desire to con- possessions may all entertain, worthy legislation accomplish what we deem strue so as gov- if to have a objects, and, but the traditional we are ascertaining what laws, ernment of the essential attitude it Congress has enacted rather than what we wish had enacted. view, opinion, my
Much of what is said disre- judicial gards process this fundamental function of the have no in the place relies on considerations which solution presented. of the issue Congress it said, (a)
What did mean when § Act, employer Labor that “No shall . . Fair Standards . employees . . . employ longer of his workweek . . . such forty employee than hours unless receives compensation” specified overtime at a rate? No other presentеd. issue is
The materials for decision are those to which resort al- ascertaining ways meaning has been had of a statute. They remedied, are the mischief to be the purpose of Congress light mischief, in the adopted and the means These promote purpose. obscure this instance. the bill reports upon
The committe which became the Act1 Labor make it clear that Fair Standards sole was to increase purpose require a fair employment, day’s raising work by wages fair day’s pay for a 1452,75th Cong., Sess., Cong., Sess., 1st H. R. 75th 3d 1H. R. S. R. Cong., 75th 1st Sess. those
most hours of poorly paid reducing workers and *15 in cost overworked, most and correct inequalities thus of and unfair in com producing goods prevent competition reports merce. The disclose no other Con purpose. in gressional findings declaration embodied policy (a)2 2 matter any § exhibit no intent to deal with other stemming from industry than substandard in conditions wage and hour vain practices. The Act will be searched for a minimum respecting any subject mandate other than wages and court has con maximum hours work. This it dealing subjects.3 strued with these only In to what setting, therefore, this we are determine Congress meant the term “workweek” when it pre- scribed the maximum number of hours of labor an em- ployer might require to be rendered within week at wage. “workweek,” the standard The Act does not define for the Congress evident reason that believed it had a con- ventional meaning which all would understand and to all practices. which could conform their The term com- bines two words in common A use. week any period days. seven In accepted usage a man’s work means that which he does his employer as the consideration of wage he receives. The term is often used a more general when sense as one is asked what he is doing and replies “I am working for Jones.” Of course he does mean that Jones is paying him for each hour of every week of his life. Men are not commonly paid for the time they sleep, the time eat, or the time they go take to to, and return from, their employer’s premises. Thus, although the phrase “work” may refer to the calling pur- sued, or the identity of the employer, it is plainly not so used this statute. Its collocation with the word “week” injunction with the as to minimum maximum pay, 252 Stat. Darby, United States v. 100, 115, 117, 122, 125. U. S. in any week, shows work, for extra
hours, and overtime I above was what havé Congress what meant work employer rendered to the described,—the actual service wages conformity to custom pays for which he agreement. work for constitutes knowledge that what common
It is made with customs and varies is to be payment Where industries or businesses. different practices place employer’s at his required report employe is employer’s where his place thence to the go business in some cases has been the custom it pursued, activities going employer’s from the spent pay many In indus- of work. place place of business *16 required report are employes all of the tries some or awaiting a call for emer- given place remain at and to a and, according to under- service gency or other casual during they are for the hours which standing, they actually in forth they put wait as well as those There can be little doubt that physicаl or mental effort. Act fitted Congress the of the to be expected provisions understandings into the and as to prevailing practices in what constituted work various industries. or the provide
The Act does not that Administrator the in courts are to define a workweek the case of each em- ployer right, regardless on such basis as deem existing agreements custom the industry of or of between employers employes. Nor does the Act vest author- ity in disregard supersede Administrator or court to existing understandings and practices as to what con- stitutes work or the in nothing workweek. There is words of history suggest Congress the statute or its intended, mentioning without to confer on the Admin- it, istrator or the courts power industry so vast a over the of the nation. question
The in this case then is: What was the work- week of iron miners when If adopted? the Act was existing submit, I workweek then, plain, answer is in unless must the administration statute control arrange- consensual employer employes, by and until alter the current practice. ment, presents the facts. Some dispute record no as to notoriеty susceptible judicial public matters in
notice; others are contained offers of evidence which irrelevant; the District Court excluded as others are ex- posed the proofs. labor in
Conditions of iron mines and coal mines are similar. In workings as the deeper, become the men both, go have farther to places reach which they at labor. The time thus consumed individual workmen varies in the same mine, and different mines. The conditions the channels approach places to the of work are some- what better in iron mines than in coal mines. The cus- tom in coal mines is, therefore, persuasive, since some petitioners maintain coal and iron prox- mines close imity, and since the practice in the two has been the same for many years.
In public proceedings arbitration at Birmingham, Alabama, testimony showed that miner’s day was reckoned “from the gets to the face of [he] the coal until he coal,” leaves face of the and that the eight hour day was so measured. That arbitration re- *17 sulted wage agreement a on the “face to face” basis; that on wage a fixed is, according to the time the miners worked at the face of the coal.
In 1917 a public board of arbitration, whose award was approved by the United States Fuel Administrator, found: eight
“An hour day eight means hours work at the usual working places of all employees. classes This shall be exclusive of the required time in reaching such working places in the morning and departing from the night.” same at Coal of the Bituminous and award report
In the agreement be- the basis which was made Commission, language the employed miners, union operators and tween just quoted. for the Bitumi- Competition Fair
In the Code by the President under promulgated Industry, Coal nous Recovery Act, provided: National Industrial day’s labor shall constitute a work and hours of “Seven working places work at the usual hours this means seven labor, exclusive lunch period, classes of for all day tonnage or the or they paid be on other whether piecework basis.” Appalachian approved by
In 1933 the Agreement, President, provided: of labоr shall constitute a
“Eight day’s hours work. eight eight-hour day means hours’ work the mines working for all classes places labor, the usual exclu- at period.” of the lunch sive petitioner Coal, Tennessee Iron &
Prior to piecework its miners on Company paid Railroad either did upon basis, petitioners a shift as Sloss- basis But Republic Steel. the common under- Sheffield management standing that, first, of men at ten eight and, working hours constituted a day. hours later, proofs and there is no This is shown evidence the contrary. working occasions the men
On numerous these mines through ought their that claimed, unions, they to be in the in going time consumed mines to or for travel from Their they face worked. demands for pay where eloquent proof time are travel understood the pay was reckoned and it basis on which did not working agreement time. No include travel practice time was made and no pay pay for travel adopted. it was agreement made an with the
In 1934 Tennessee Union its which was renewed employees, representing *18 agree- these undisputed in It that all of again 1936. time. On October excluded for travel payment ments effect, was in Fair Labor Act 1938, before the Standards made between bargaining agreement a collective and the Ten- International affiliated with the Union, CIO, agreement provided: In this it was Company. nessee Eight (8) hours “Section 4—Hours of Work. shall day’s forty (40) a work hours shall consti- constitute be paid tute week’s work. Time and one-half shall a in eight (8) any day all hours one overtime excess forty (40) for all excess of hours overtime one week. day eight of work in eight (8)
“The hour means hours working places or about the mines at the usual for all of the lunch whether labor, period, classes of exclusive day tonnage or be on the basis.” paid be May 5, in effect until agreement This remained abrogated in question pursuant were provisions when Wage Hour Admin- opinion promulgated by an hereinafter described. istrator as materially are not different with
The circumstances bargained has company Sloss-Sheffield. That respect representing its miners since 1934. Several with a union payment demand for the union made a travel timеs agreement granted. A formal con- but this was not workweek, and hours of taining the same definitions Tennessee, was executed in the case work, as company pay 1940. The continued to on and renewed until 1941. to face basis the face agreement has had no formal written Steel
Republic bargained it with but has their union. employes, with its suggested arrange- the union that an as 1933 early As the men enter the mine on their whereby be made ment time, mat- company out on but the time and come own again in After up came pressed. It ter was the men a return of to. strike, negotiations resulted *19 612 In the plan payment. of the face to face
work on employes their should enter on the proposed union negotia- company time, but in come out on time and own In the wrote dropped. union matter was tions the agreement and, in pro- an its respecting the company eight hour means hours eight day “The posal, said: working places for all the usual mines, the at or about agree- proposed the union an In 1939 classes of work.” year In that the union containing a provision. ment like Labor the National Relations charges before preferred the face to face basis these did not involve Board but was The settled computation. complaint of wage pay day’s a company The continued stipulation. May 1, until face face basis work on the Labor Standards Act became effective October The Fair miners being coal and iron were At that time 24, 1938. at their spent working basis of on the fully The miners understood this in the mine. places basis. legal department the director July
On in a America, Mine of letter to the Workers the United of he Act, requested the accept Administrator in the working Appalachian time contained definition of letter said embodied “the custom agreement, the mining industry.” That and traditions the bituminous quoted from the same as that Tennessee definition supra. said, letter further respecting agreement, method: face to face measuring working method time at the
“This has the standard basic provision work been places of fifty years for almost and is the result wage agreements sense.” bargaining complete its of collective said: further older, working grow places “As mines move farther away portal opening mine, from the and farther develop, it becomes necessary conditions and as such provision transportation to be made for of the men over long working places.” distances to their adjustment wage and added that rates to new measurement
“would create so much confusion in- bituminous dustry in complete chaos, as to result and would probably in complete result of work at stoppage practically all of the coal mines in the United States.”
On the footing of that letter the Administrator issued *20 stating release in that the face to face basis the bitumi- nous industry would not be unreasonable..
On March 23, 1941, the Administrator announced a portal modified to portal wage opinion hour in which he defined the in workday underground metal mining as starting when the miner reports mine, at the collar of the ends when he collar, returns to the and includes the time spent on the surface in obtaining and returning lamps, carbide, and in tools and checking and out. Realizing that this was a complete change of opinion, the Adminis- trator announced thаt he would not seek to compel pay- ment of restitution from mine operating owners on a face face basis but that he could not right interfere with the employes of representatives for past sue over- penalties time and (b) under of § the Act. Thereupon the representing unions miners demanded payment of overtime for all travel time since the effective date of Act, the and invoked the penalties specified therein. In order to possible avoid penalties, the petitioners com- plied with the ruling Administrator’s brought the present suit for a declaratory judgment to the effect that working underground time of employes comprised the hours of work in the usual working places in the mine and did not include the time consumed travel thereto and therefrom.
At the trial much was evidence taken prac- as to the existing in long tice iron prior mines to, and at the date This Act. Fair Labor Standards adoption of, rep- employers, foremen, and by miners, given
was over the industry locality but single resented dep- of consisted testimony country. fact, In somе of but offered respondents, by the taken ositions time working that the It all to the effect was petitioners. paid calculated and always been miners had of iron at the place in the mine time worked according to the never been travel time had assigned the work and that made. payment in the for which included findings fact. twenty-nine judge district entered The that, effect fifth is to the formal. The The first four are District, Birmingham in the history mining regard to without employes have been plaintiffs’ any spec- or at spent at the face of the ore number of hours mines, in the and adds: “This com- ified or station place upon any precise number has never been based pensation spent daily spec- the face the seam or at any at hours finding mines.” The place ified or station would history heretofore explain difficult to view of the seem explanation that, is found the fact al- outlined. *21 though eight day the for hour paid men were an of work at if face, blasts were about to be set off at the the close day away the men were from the face the sent somе blasting were, they the but if nevertheless, paid before as eight remained at the face for full hours. But had the disregarding practices can be no reason for the and this agreements parties.
Findings 12, inclusive, 6 to refer to various methods of in practiced past the and to the character of the payment underground miners and other They work of workers. eight evidently that, are intended to show an hour while in day force, wage hourly was the was not calculated at an they forty Of do not contradict course, rate. the fact that hours constituted the workweek nor the fact that it wages spent for time paid that no were understood travel the mines. which made that the unions
Finding 13 is to the effect never been cer- agreements with various had petitioners appro- tified the Labor Board as National Relations , bearing of bargaining. priate units collective the fact finding this is difficult to understand view of representing with the unions employers dealt bar- operated their men and two under formal collective gaining agreements with affiliated unions. nationally men hаd several
Finding briefly mentions that for travel time. pay times demanded the conditions un- Findings inclusive, describe mine, men in, der which arrive at the check obtain under- tools, walk, carried, their or are to their work ground they They and how return. recite the men obey regulations they while are on the company have to returning going to and from company property and safety. Many regulations work. of these the men’s findings that, arriving company after on These also show respect certain with the men receive directions property, bearing do. The obvious of these they to the work are to ought travel con- findings thought court to be that the Act, intendment of the whatever work, within the sidered It agreement parties. custom, practice, though somewhat judicial fiat, more would be no less living are un- quarters that as the men’s extreme, to hold in the must live unhealthy comfortable homes mines, spent the time neighborhood of for work. must be findings are of facts which add concluding
The two if all the travel time that, to the effect nothing. They are men have worked more workweek, is countеd have not petitioners week and the forty per hours than *22 forty hours. more than them for paid rely court concurring The in this opinion opinion and accepted were heavily findings, especially they on these by the be observed Circuit But it will Appeals. Court of findings they that the for that noteworthy the feature deal, except in mentioned, already the instance has which explained, been with which to the is- facts are immaterial sues the case. I see how do not aid to decision can be by refusing findings derived to disturb which do not meet the issue made the It that the pleadings. significant finding District Court avoided as to whether the em- ployers had ever understanding time or as paid travel to the parties that the were employers paying such travel time. significant And it more the is even that court finding made no the whatever about formal collective bar- gaining agreements respondents entered into the with petitioners the signified parties which both clearly understanding of what work iron mines. And the not, court could proofs under the case, this have found that bargaining agreemеnts these collective were contrary accepted to the in iron practice and coal mines throughout country prior the petitioners to 1941. objected that findings the omitted any reference to the fact that had companies never travel time, to the fact that day’s work wages for which were paid did not include travel time from the place where mined ore, negotiations or to agreements working time, as to sought objections new trial. The motions were overruled. placed
Reliance is on the trial finding court’s discloses no evidence custom to exclude travel time from the workweek. But very reliance exposes the fallacy of the lower court’s and position. this court’s Unless the statute gave courts authority make contracts for the parties, statute did not make, a court could not support such a by finding contract that there was no cus- respect tom with to travel time. It would be necessary for *23 time, for to such pay was custom it find there a to that rea- do, the obvious to for the Court failed District which оf such custom. no evidence that there was son the acceptance of pitch decision on say To we should that to neglected that when court findings court, of the trial to material, relevant highly were find facts which case. only the issue the disregard real and the the Fair Labor Standards already pointed out, I have As Congress to into work that by intended turn Act was not time to at the work, be, not so understood to courts to des- permit not intended passage. It was of its which neither activity employe, as work of an ignate some regarded work, merely as employe had ever employer nor imposed such thought activity the that such because court to on him so deleterious hardship or involved conditions for ought compensated he to or welfare that be his health them. knowledge the to portal issue of portal
It is common min- nationally raised connection with the was first pay at war and industry the nation was connection ing after And, inspiration the indeed, coal strikes. with disastrous by was furnished portal portal pay for the for to demand That decision the court below this case. the decision of the days later March 1943. Three was rendered on Mine Workers the United Policy National Committee of labor so changed its of hours of demanded definition which, then, been on tradi- existing demands, until had should “conform with payment, tional face face basis to maxi- requirements industry legal the basic to hours work time be amended estab- provisions mum starting and all ‘portal portal’ quitting lish it In this demand underground presenting workers.” advantage “The Workers take said: Mine desire decision, grants them the the Alabama under which, law they are in mines.” to be for the time Thus right understood, decision under review was that the plain it is court as law a be, declaration of it must as a finding of fact under the Act and not what is a workweek agreement industry and the on the custom of based filed In actions were August class parties. obtain courts to Mine various district United Workers *24 compensation portal portal pay. to overtime The District Court be One further fact should noted. to the mouth only the travel time from and found that not working time, but that mine be counted аs should collecting tools, time on the surface spent men Ap- be The Circuit Court of etc. should also included. findings although accept to the fact professing peals, judgment respect the District with to Court, reversed its spent surface, saying on the no more than that the wrong including that time. This is District Court that proof by further the decision of case both courts ought below on the view of a court as to to what turns not, be considered work and what irrespective understanding the parties. Suppose parties that agreed that working had travel time was time and to be and paid included for in the workweek? Would liberty courts be at to find the re- contrary deprive spondents agreement? of the benefit I think not.
I cannot better characterize the result this case than by quoting Judge Sibley from what dissenting said his opinion below:4
“If it would be better to include travel time work time, it ought by bargain to be done a new which pay rates of change are also reviewed. If the is to be by special a (some statute western States such statutes), have it will operate justly in futuro, and not unexpeсted penalty, as here. nothing
“There is in the Act agreements to outlaw in getting travel time to agreed or from the place of work 324, 325. 4 135F. 2d may though employer time. This true
is not work rules for its transportation and make a means of organize only here that work time includes agreements use. illegal. Digging out of the ore bed are not time at the face they agree do, and for that the ore is what miners riding or walk- Getting together their tools paid. agreed not, by any of work is force of ing place to the No I suppose, done for the mine owner. one, work law, spent if of miners who had an hour say group would will riding dig any work decided of their own not to ore riding back, they hour had done spent another paid by should be force of the Act. work against proposed appellants “It is now to assess these an mil- pay quarter as back for overtime estimated of a way be doubled dollars, penalty, lion to com- *25 in going miners for their time to and from pensate work, in the place agreements face of their get this time was not their work time. They are to per three much hour riding times as and walking to from the work they were hired to do, they get doing injustice the work itself. The of it to me is shocking.” judgment.
I would reverse joins Justice Chief opinion. this