(concurring in part and dissenting in part).
I agree that plaintiff was an employee of the defendant and not an independent contractor. I disagree that the National Railroad Adjustment Board (hereinafter referred to as the Board) was without jurisdiction to hear and decide the claim presented to it by plaintiff. Consistent with this view, I think that the decision of the Board was final and binding upon the plaintiff so as to preclude recovery under count 1 of the complaint. The decision of the Board, however, was without effect as to count 2, and as to it I think a cause of action was stated.
In the beginning, it is well to keep in mind the cause of action relied upon as well as the grounds urged by the defendant in its motion for summary judgment. Both counts of the complaint are predicated upon the theory that plaintiff was an employee of the defendant. Count 1 seeks to recover for services rendered under the terms of a contract entered into between the defendant and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. Plaintiff does not allege that he was a member of the group for whose benefit that contract was made but that he was entitled to recover as a third party beneficiary.
Count 2 is predicated upon the minimum wage requirements prescribed by the Fair Labor Standards Act. 29 U.S.C.A. §§ 206, 207.
Defendant’s motion for summary judgment as to count 1 relies upon the decision of the Board as a final judgment binding and conclusive upon the plaintiff. Its motion for summary judgment as to count 2 *613is predicated solely upon the premise that the plaintiff was not an employee of the defendant but an independent contractor, and that by reason thereof plaintiff was not entitled to the benefits of the Fair Labor Standards Act. It will be noted, therefore, that defendant’s attack upon the complaint is inconsistent in that its motion for summary judgment as to count 1 is based on the factual assertion that plaintiff was an employee and not an independent contractor, while its motion for summary judgment as to count 2 is based on the factual assertion that plaintiff was not an employee but an independent contractor.
First, as to whether the decision and award of the Board is a bar to the cause of action stated in count 1. In holding that it is not, Judge HOLLY seems to think that the Board should have dismissed the complaint for lack of jurisdiction because the defendant there advanced the contention that plaintiff was an independent contractor. As I view the matter, the contention advanced before the Board in this respect is immaterial. To so hold means that the Board would be without authority to determine its own jurisdiction and it would follow that its decision would be final only where it obtained its jurisdiction by agreement of the parties as to the facts relative thereto. This line of reasoning would reduce the authority of the Board to a state of impotency which the law does not contemplate. Moreover, it appears inconsistent to reason that the Board was without jurisdiction because the plaintiff was an independent contractor and then to hold that he has stated a cause of action under both or either of the counts of his complaint on the theory that he was an employee and not an independent contractor.
Judge HOLLY cites two cases, Dahlberg v. Pittsburgh & L. E. R. Co., 3 Cir., 138 F.2d 121, and Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, in support of the proposition that an award by the Board under certain circumstances may be reviewed by a court. A reading of those cases discloses that the circumstances involved were quite different from those of the instant case, and in my judgment they furnish little, if any, support for the conclusion that a cause of action has been stated in count 1 which is precisely the same claim plaintiff presented to the Board and from which he received an unfavorable decision.
A case nearer in point is that of Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886. There, as in the instant case, the suit was against a railroad by its employees for damages. A proceeding had been had before the Board, which denied the award. This adjudication was relied upon by the railroad in its motion for summary judgment as a bar to the action. The plaintiffs contended that the Brotherhood which had represented them before the Board was without authority to do so, in other words, that they did not authorize the institution of the proceeding and for that reason were not bound by the Board’s adjudication. It is pertinent in this connection to note that plaintiff in the instant case conceded that his claim was presented to the Board by a duly authorized representative. Thus the issue in the Elgin case, as the opinion of the Supreme Court discloses, was whether the proceeding before the Board was authorized and if so, whether its decision was a bar to the court action. The Supreme Court in a five to four decision held that whether the proceeding before the Board was authorized raised a question of fact which precluded the entry of a summary judgment. The majority, resting its decision on this ground, found it unnecessary to determine the legal effect of the Board’s decision but used language indicating that an authorized proceeding would result in a final and conclusive adjudication.
The minority opinion concurred in by four of the Justices held that the proceeding was authorized, and further that the Board’s award was final. In that case, as in the instant one, the employee’s claim was for a money award, which had been denied by the Board. The minority, on this phase of the case, stated (325 U.S. at page 760, 65 S.Ct. at page 1307, 89 L.Ed. 1886): “Since the claim before the Adjustment Board was for money, there remains the question whether its disposition *614was open to judicial review. The Railway Labor Act commands that the Board’s ‘awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.’ Section 3, First (m). But the determination here in controversy does not ‘contain a money award’ so as to be excepted from the final and binding effect given other awards. The obvious meaning of ‘money award’ is an award directing the payment of money, not one denying payment.”
The minority expressly held that the denial by the Board of a money claim bars the door to redress in the courts. While ordinarily a dissenting opinion is not the best authority, it would seem that the holding of four Justices of the Supreme Court on a point not decided by the majority must be regarded as highly persuasive, in fact such a decision comes near to stating the law on the point thus decided.
It may be true, as Judge HOLLY points out, that there is some ambiguity in the Board’s opinion. This is more fanciful, however, than real. The Board in its opinion was merely discussing the plaintiff’s relation to the contract on which his claim was predicated and it was in that connection that he was referred to as an independent contractor. Such reference was in the sense that he was a stranger to such contract and not that he was not an employee of the defendant. This is shown by the statement in the Board’s opinion relative to the agreement on which plaintiff’s claim was predicated: “The Clerks’ Agreement was negotiated for the benefit of the employees performing work within its scope. Clearly, a stranger who contracted with the Carrier to perform work already reserved to employees under this Clerks’ Agreement cannot be heard to assert a claim for benefits under a collective agreement not made by him or for his benefit.”
Moreover, the findings of the Board (set forth by Judge HOLLY) leave no room for doubt but that the Board specifically found that the defendant and the plaintiff were “respectively carrier and employe within the meaning of the Railway Labor Act.” Upon this premise the Board further found that it had jurisdiction over the dispute. It denied the award, however, on the ground that plaintiff was not entitled to the benefit of the contract upon which his claim was predicated and which is the same contract sought to be made the basis for his claim as stated in count 1 of the complaint. In my judgment, the decision of the Board was final and constitutes a bar to such action. .This is so, irrespective of any opinion which we might have as to the soundness of that decision.
The cause of action alleged in count 2 of the complaint presents an entirely different situation and obviously the decision of the Board has no relevancy thereto. Defendant does not so contend and, as already pointed out, its motion for summary judgment directed at this count is based solely on the ground that plaintiff was not an employee but an independent contractor. Also as already stated, I agree with Judge HOLLY that plaintiff was an employee within the meaning of the Fair Labor Standards Act. Certainly an employer cannot circumvent the provisions of that Act by labeling an employee as an independent contractor whether such labeling is by agreement or otherwise. The authorities are so numerous in this respect that no good purpose could be served either in their citation or discussion.
A more serious question is whether an employee such as plaintiff, subject to the jurisdiction of the Interstate Commerce Commission, is exempt from the provisions of the Fair Labor Standards Act. Sec. 206 of that Act, Title 29 U.S.C.A., is the minimum wage section and provides what the minimum wage shall be. Sec. 207 relates to maximum hours of employment and provides for additional compensation for hours employed in excess thereof. Sec. 213 contains the exemptions to the Act, and subdivision (b) provides, so far as here material, that Sec. 207 shall not be applicable to an employee under the jurisdiction of the Interstate Commerce Commission. It thus appears plain that the exemptions contained in Sec. 213 have no application to the minimum wage requirements of Sec. 206, which is the basis for the recovery sought under count 2 of the complaint.
*615There is some authority for this construction of the statute, at least in analogous situations. In Walling v. Mutual Wholesale Co., 8 Cir., 141 F.2d 331, 340, the court in considering a similiar situation stated: “Therefore, the Fair Labor Standards Act is applicable only as to minimum wages for regular hours of service in interstate commerce. The result here is that for such weekly periods as any of these drivers were substantially engaged in handling interstate shipments they come within the Act as to minimum wages only and otherwise they are not within the Act.”
See also Southland Gasoline Co. v. Bayley et al., 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244.
It is therefore my view and I would so hold that the action of the District Court in allowing defendant’s motion for a summary judgment as to count 1 of the complaint should be affirmed, but that its action in sustaining such motion as to count 2 should be reversed.