(dissenting).
If certain statements in the opinion in Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590, 64 S.Ct. 698, are viewed apart from their setting, a reversal of the judgment in the pending case in favor of the mine operators may perhaps be logically deduced; but a reversal will produce a result so inequitable that we may well inquire whether we should not discard formality and adopt a realistic attitude in resolving the issue, as we are admonished to do in cases of this sort in the opening sentences of that opinion.
In the pending coal mine case, unlike the Tennessee case where conditions in iron ore mines were under consideration, it was found by the District Court upon undisputed evidence that “by the universal custom and usage of the past fifty years, and by agreement of the parties in every collective bargaining agreement that was ever made, it was universally recognized that' in the bituminous coal industry, travel time was not work time.” [53 F.Supp. 950] In short, the court found that in the coal mining industry the term “workweek” had come to have the definite meaning of time spent at work at the face of the mine exclusive of travel time; and from this finding the conclusion naturally followed that the term should be given this significance in the application of a statute which does not define the term at all.
This conclusion is now said to be erroneous because in the later decision in the Tennessee case, where the District Court had failed to find any such immemorial custom or collective bargaining agreements, the Supreme Court said, (321 U.S. at page 602, 64 S.Ct. at page 705), that “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.” While this language was used with respect to the different conditions then prevailing in the metal mining industry, it is now taken to mean that cus*14tom or contract, no matter how long or how firmly established, must be disregarded in fixing the limits of the work week in all industries.
This line of reasoning produces such an injustice in the pending case that I am loath to believe that it represents a correct interpretation of the statute or the conclusion which the Supreme Court itself would reach if the pending case were before it. In this case we do not have the picture portrayed in the opinions in the earlier suit of miners struggling against difficulties to obtain the best terms they could get and making repeated unsuccessful attempts to be paid in whole or in part for travel time, where in short travel time was not excluded from work time with the miners’ free and uncoerced consent, and the District Court consequently found that there was no custom so well established that Congress must have adopted it or had it in mind when it used the term “workweek’’ in the statute. Nor do we have such a decision as that rendered by the Administrator of the Wage and Hour Division of the United States Department of Labor on March 15, 1941 in respect to the metal mining industry that work time starts when the miner reports for duty at the collar of the mine and ends when he reaches the collar at the end of the shift. See D.C., 40 F.Supp. 4, at pages 7, 8, 10; 5 Cir., 135 F.2d 322, 323, and 321 U.S. 601, 64 S.Ct. 698.
Quite the contrary has been the situation in the coal mining industry. Not only was there a custom of fifty years’ standing, repeatedly embodied in successive collective bargaining agreements, but the'custom had the affirmative approval of the powerful union known as the United Mine Workers of America which had been eminently successful in representing the miners’ interests. The “face to face” basis for the computation of working time has been traditional in the industry. When the Code of Fair Competition under the National Industrial Recovery Act, 48 Stat. 195, was drawn up for the industry by representatives of the operators and of the United Mine Workers and approved by the President of the United States in 1933, it provided that the work day should consist of seven hours’ work at the face of the mine. Basic wage agreements for the industry executed by the operators and by the union in 1934, 1935 and 1937 incorporated this provision. Even after the Fair Labor Standards Act passed on June 25, 1938 had; become effective in accordance with its-terms on October 23, 1938, the same provision was .retained in the basic agreement of May 12, 1939 for the period of two-years ; and it was repeated in a succeeding two year agreement executed on April 1,. 1941.
It must not be supposed that this method of computing wages was imposed upon an unwilling union by the superior power of management. It was deemed by both parties to be beneficial to their respective interests as a practical solution of the perplexing questions which would otherwise arise in applying a general wage agreement to a large number of mines in which the travel time necessarily varied on account of diverse physical conditions. This, was strikingly shown in 1940 in the course of an investigation of the industry by the Office of Wage and Hour Administration when the representatives of the operators, and the representatives of the union on-July 9, 1940 united in a letter urging the administration to recognize the traditional contract provision as conforming to the statute. They «pointed out that the wage agreements in effect afforded “the highest standards of labor provided in any industry in the United States both as to hours of working time and wages paid”; and they expressed the opinion that the adoption of the “portal to .portal” system “would create-so much confusion in the bituminous coal industry as to result in complete chaos”. The administration acceded to this view and on July 18, 1940 gave out the opinion-that “the practice of computing working time on a face to face basis .in the bituminous coal industry would not be unreasonable.” It was under this state of affairs that the two year agreement of April 1,. 1941 was executed.
It was not until March, 1943, during the negotiations for a new contract to take effect April 1, 1943, that the union suggested, that in order to conform with the basic and legal requirements for the industry the maximum hours and working time provisions of the contract should be so phrased, as to establish portal to portal for starting and quitting time for all underground, workers. But even then it was obvious. that the portal to portal basis was proposed in order to justify a flat $2 a day wage increase for all workers because the increase was demanded for all classifications, of outside as well as inside day men.
*15The negotiations were not successful although prolonged conferences were held in an effort to reach an agreement and the dispute was referred to the War Labor Board. There were strikes which resulted in the seizure of the mines by the federal government and intermittent work periods during which the industry operated under the conditions specified in the 1941 agreement. Finally the Secretary of the Interior, representing the government, and John L. Lewis, representing the miners, reached an agreement on November 3, 1943 which included the portal to portal method of measuring work time. Subsequently the greater part of the industry yielded and entered into agreements on the lines of the Ickes-Lewis agreement.
This change of front on the part of the miners for bargaining purposes, when making an agreement for future operations, could not affect the condition which formerly existed in the industry or transform into work time that which was not work time in the generally accepted meaning of the term that had prevailed in the industry for a long time when the statute was passed and that continued to prevail with administrative sanction for five years after its enactment. The statute could not have one meaning in the earlier and another meaning in the later period; and the Mining Company was justified in resisting in this suit the application of the portal to portal method of computation for work done by the miners even after 'the 1941 agreement had expired.
It seems a mistake to suppose that under no circumstances can custom or agreement throw any light on the meaning of the Act in its bearing upon an industry. The language of the Supreme Court in the Tennessee case should not be given this sweeping significance as the decisions of the courts tend to show. For example, it was held in Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, that in the statutory sense the regular rate of pay for any particular week is the quotient of the amount paid per week divided by the number of hours worked in that week, and that overtime must be calculated on this basis, and that unless this is done, it is not sufficient that the wages actually paid exceed the statutory minimum; but, on the other hand, it was held in Walling v. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716, that an employer could continue to pay his employees the same weekly salaries without violating the Act because he rearranged the basis of compensation by an agreement which provided for a basic rate of pay per hour for the maximum hours fixed by the Act and one and a half times that rate per hour for overtime together with a guarantee that the employee should receive each week for regular time and overtime not less than a stipulated amount. In view of these decisions, it is obvious that the legality of rate of pay may depend upon an agreement of the parties.
It is suggested in mitigation of the harsh effect of a decision adverse to the Mining Company that the amount claimed by the miners in this case has been limited, by amendment of the counterclaim, to the period beginning April 1, 1943 and ending June 20, 1943. Indeed it is assumed in the briefs that each miner’s claim is limited to the sum of $40 and that the total sum involved is approximately $40,000. These statements cannot be verified in the record. The amendment to the counterclaim is not limited to the period ending June 20, 1943 but contains merely the assertion that the miners will not further assert their claims to travel time prior to March 31, 1943. The end of the period for which the claim is made is not stated; nor is the amount of the claim defined. The assumed limitation of the period to June 20, 1943 and to the sum of $40 per miner seems to be based on the terms of agreements entered into between the union and other mining corporations ; but so far as the record discloses, the Jewell Ridge Coal Corporation has never entered into a new agreement or paid for travel time. If a claim is asserted for the full amount due under the Act, as now interpreted by the miners, a very much larger sum than $40,000 will be involved in this controversy.
Moreover, the decision may be of grave importance in its application to other mine owners who have not dealt with the union or have not signed wage agreements. If the new interpretation of work time is applied to them over the period that has elapsed since the passage of the Act, subject only to local statutes of limitations, and double payment is exacted under the penal sections of the Act, it may be that the mine owners will be subject to losses of huge amounts. Indeed the decision might prove even more sweeping in its effect for it might invalidate the compromise provisions respecting pay for travel time and *16liquidated damages that form part of contracts between the mine owners and the union in a large part of the industry. If portal to portal pay is required under the Act as a matter of law, such settlements are not binding if the amount paid is less than the actual wages due under the Act; and the mine owners would become liable not only to make up the deficiency but to pay an equal amount in addition as liquidated damages. Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. See also, Guess v. Montague, 4 Cir., 140 F.2d 500; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622; Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115; Rigopoulos v. Kervan, 2 Cir., 140 F.2d 506; Birbalas v. Cuneo Printing Industries, Inc., 7 Cir., 140 F.2d 826.
These considerations give force to the conclusion that Congress could not have intended to compel mine owners to pay large increases in wages over and above those specified in prevailing agreements, and also to inflict upon the mine owners additional sums in the nature of a penalty by giving to the term “work week”, as used in the statute, a significance contrary to that which by voluntary agreement and by long continued custom had prevailed in the industry.