Montana oil and mining journal. [volume] (Great Falls, Mont.) 1931-1953, 1940-08-17
URGE WAGE-HOUR EXEMPTION FOR MINES

that especially in many Of the small mines
particularly those with low-grade ore you
find 1t difficult to pay time and half FOR
hours worked beyond the 2-hour week and
still meet your operating costs. % say moth
ing Of making a profit
"spread the Work"
II was the intention Of congress. by putting
a penalty upon overtime, to encourage the
employment OF additional labor It was a
spread the-work device. It was assumed that
imposition Of the overtime penalty would en-
COURAGE employers TO eliminate overtime and
employ extra workers. But here we meet the
objection that this objective is not possible
In the metal mining industry because OF diff
fculties encountered in staggering shifts or
in developing the swing shift operation so
that the mine can operate on either a 6 or
7-shiit per week basis. In addition. the diff
ficulty OF furnishing housing for employees Is
put forth as a vital problem The addition
Of another shift has been found difficult In
certain mines. and finally IL has been said
that the men themselves do not ike the
shorter work-week but prefer to work straight
through and then take time off to 60 to
town.
should hesitate to attempt to furnish a
solution 10 every problem that has been
presented. but want to list some Of the prin-
cipal ones as basis at least. for further
discussion
1 Must the time spent by the UNDERGROUND
worker in travelling from the portal to the
face be counted as time worked
?. Must time spent at lunch UNDERGROUND be
considered as time worked?
3 What is the status Of the lessee miner. or
the leaser? Is he employe Of the mine
owner or really a lessee? Must he and his
helpers, whom he employs and pays, be paid
time and a half for overtime?
4. VIII the operator be protected from La
bility II he reduces the hourly rate to avoid
the payment Of overtime?
s. How about the construction employe who
builds new facilities? Is he covered by the
law and must he be paid time and half for
overtime?
Interpretation Is Lacking
We cannot predict in advance Just what the
courts are Roing to say in respect to every
problem that arises. or how they are going
to interpret the act The best we can do is
to tell you what in our opinion. the Law
means. and what. as to any particular prob
lem. the courts have held in the past In
analogous somewhat similar. circum-
stances
An administrative determination recently
was announced by Colonel Fleming. admins |
traitor OF the division, involving the question /
Of determining the number OF hours worked (
by miners In the bituminous coal mining in (
dustry.
Colonel Fleming announced that on the basis |
Of an inquiry submitted by the bituminous I
coal mining industry, the wage and hour d. /
vision. In carrying out its enforcement duties (
In that industry. will accord great weight to
any reasonable standards for determining I
working time which represent the prevailing /
customs and practices in the particular In
iustry and are supported by a long history
u bona Tide collective bargaining agreements.
m view OF the circumstances described by the
in submitting its inquiry, Colonel
fleming announced that practice OF comput-
ng working time on a face to face" basis
n the bituminous coal mining Industry would
lot be unreasonable. Colonel Fleming ex-
blamed the term face to face" to mean the
work performed after the miner
lrrives at his usual working place, exclud-
ng the time spent in travelling from the
portal or entrance Of the mine to che place
4 work and the time spent in returning from
he working place to the portal in the eve
ling. The administrator added that the de-
in the bitumnous coal mining
industry should not be considered to apply
o any mining operations where the tradi-
ional practice Of computing hours worked
iffers from the custom in the btuminous
oal mining industry.
Rule Of Mine Leases
Another determination recently was an
ounced by Col. Philip B. Fleming, admins
rator Of the division. 1t was made at the
equest Of metal mine operators and lessees
such operators in the intermountain states
n the question OF whether or not iessees
mining property are considered by the
rage and hour division as employees undeF i
he Fair Labor Standards act Colonel Elem
lg stated that each case must be determined
n its particular facts, with primary i'm
ortance given to the terms of each ndi-
idual lease agreement and the method Of
peration under such agreement II under
ne lease agreement control and supervision ,
yer the operations Of the so-called lessee
re reserved to the lessor. such lease agreement
nbodies the normal incidents of the en-
loyer-employe relationship and the so-called
'ssees will be considered as employees under
ne Fair Labor Standards act.
On the other hand II a particular lessee
operating mining property which Is not a
art Of the property currently being operated
y the mining company with regular employees, | ,
nd II In the lease agreement the mining
ompany does not have the right to control I
he lessee in his operation OF the mining I
roperty 1t may well be that the lessee is not ! ,
n employe Of the mine owner but is in fact I
n Independent operator of such property.
owever Colonel Fleming pointed out If such
ssee has his own employees who assist in I
lie operation Of the leased mine such en- |
loyes must be paid in accordance with the {
air Labor Standards act If the products OF G
ie mine move in interstate commerce Col I
lei Fleming added that in the ordinary case I
he mine owner retains title to the ore mined Z
Y the lessee and his employs and ships the {
roduct Of the leased mnie, along with his
Tn, in interstate commerce. Therefore. II /
le lessee does not pay his own employees In t
;cordance with the reuirements of the Fair l
abor Standards act, Section is (a) ID (the :
,-called hot goods" section Of the act) pro-
bits the mine owner from shipping the
-oduct Of the leased mine in interstate COM
cree
Cites Court Decision
Colonel Fleming also pointed out that two {