Jewell Ridge Coal Corporation v. United Mine Workers of America (325 U.S. 161)/Dissent Jackson

Mr. Justice JACKSON, dissenting.

The CHIEF JUSTICE, Mr. Justice ROBERTS, Mr. Justice FRANKFURTER, and I are constrained respectfully to dissent from this decision because (1) it either invalidates collectively bargained agreements which govern the matter in difference between these parties or it ignores their explicit terms; (2) Neither invalidation nor disregard of collectively bargained agreements is authorized by any word of Congress, and legislative history gives convincing indications that Congress did not intend the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to interfere with them as this decision holds it does; (3) Congress withheld interference with collectively bargained contracts at the request of the United Mine Workers and expressed a policy to observe and preserve collectively bargained arrangements applying to the coal industry in other almost contemporaneous legislation specifically directed to the problems of that industry; (4) This decision is contrary to interpretations of the Act made by the Administrator upon the recommendation of the United Mine Workers, and it denies to the Administrator's rulings the respect we have been compelling lower courts to render to them in the cases of others; (5) The decision necessarily invalidates the basis on which the Government itself has operated the mines and brings into question the validity of the Government's strike settlement agreements and of all existing miners' agreements; (6) It proceeds on a principle which the Court has unanimously denied to unorganized workmen for whose benefit the Act was passed. It is the purpose of this opinion to set forth particulars supporting these grounds of dissent.

1. The Court's decision either invalidates or ignores the explicit terms of collectively bargained agreements between these parties based on a half century of custom in the industry. This action involves labor in two mines, each employing approximately five hundred men. At all times in issue the mines have been unionized and the workmen have been organized by the United Mine Workers of America. This union has been selected and recognized as the bargaining agent of the men. Their hours, wages, and working conditions have been fixed by collective bargaining.

Employees in these mines first were organized as members of the United Mine Workers of America in 1933, following promulgation of the N.I.R.A. Code of Fair Competition for the industry. This code was drawn up by representatives of the Union and of the operators and was approved by the President of the United States. It provided for the 'face to face' wage basis which makes no direct allowance for travel time, but, as has been pointed out on behalf of the Union, the wage scale was fixed at a level intended indirectly to compensate travel time. Basic wage agreements thereafter were entered into between the Union and the operators as of April 1, 1934 (continued in effect by successive extension agreements from March 31, 1935 until October 1935); again as of October 1, 1935; and as of April 2, 1937; again as of May 12, 1939, when the Fair Labor Standards Act was nearly a year old and had been in effect for nearly six months, a new agreement was bargained which, like all the previous wage agreements, expressly provided for the 'face to face' basis, necessarily excluding all travel time from the work week. The last basic wage agreement reached by collective bargaining previous to the commencement of this action, dated April 1, 1941 and to extend for a period of two years, did the same. These agreements are admitted and, if valid, govern the dispute between the parties.

But the Court does not honor these agreements. We have repeatedly and consistently held that collectively bargained agreements must be honored, even to the extent that employers may not, while they exist, negotiate with an individual employee or a minority, cf. J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762, and must pay heavy penalties for violating them. Cf. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788. And now at the first demand of employees the Court throws these agreements overboard, even intimating that to observe agreements, bargained long before enactment of the Fair Labor Standards Act, would be 'legalizing' a frustration of the statutory scheme.

The suggestion that the agreements were 'frustrations' of the statutory scheme has not the slightest warrant in this record. This 'face to face' basis was traditio al in the bituminous coal mining industry in this country and universally was the basis for determination of hours therein for something like half a century. This was contrary to the practice in England and Continental Europe, where the basis has been to calculate time from entry of the mine to leaving it or from 'portal to portal' or some modification thereof. The reason American miners accepted this arrangement appears from an official statement by counsel for the United Mine Workers of America to the Administrator of this Act that 'The uniform high rates of pay that have always been included in the wage agreement of the mining industry contemplate the employee's working day beginning when he arrives at his usual working place. Hence, travel time was never considered as a part of the agreement or obligation of the employer to pay for in this industry, nor as hours worked by the employees, and this has been the case since the eight-hour day was established in the industry April 1, 1898,' and 'This method of measuring the working time at the place of work has been the standard provision in the basic wage agreements for almost fifty years and is the result of collective bargaining in its complete sense.'

The Court takes refuge in its own decision in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014, saying 'We agree with the court below that there is no substantial factual or legal difference between this' case and that. But in the Tennessee case this Court pointed to facts of very different import saying, 'Likewise there was substantial, if not conclusive, evidence that prior to 1938 petitioners (operators) recognized no independent labor unions and engaged in no bona fide collective bargaining with an eye toward reaching agreements on the workweek. Contracts with company-dominated unions and discriminatory actions toward the independent unions are poor substitutes for 'contracts fairly arrived at through the process of collective bargaining.' The wage payments and work on a tonnage basis, as well as the contract provisions as to the workweek, were all dictated by petitioners (operators). The futile efforts by the miners to secure at least partial compensation for their travel time and their dissatisfaction with existing arrangements, moreover, negative the conclusion that there was any real custom as to the workweek and compensation therefor.' Tennessee Coal Co. v. Muscoda Local, supra, 321 U.S. 601, 602, 64 S.Ct. 704, 705, 88 L.Ed. 949, 152 A.L.R. 1014.

The Court does not contradict the Union's recognition that the contracts now disregarded by the Court were 'contracts fairly arrived at through the process of collective bargaining.' And that there is this important difference between the present situation and the situation that was before us in the Tennessee case was recognized by the counsel in the Tennessee case, the same counsel who argued this case at our bar. He had no difficulty in finding substantial factual and legal differences when he did not want the above-described situation in the Tennessee case to be prejudiced by being likened to this situation. The District Court quoted as 'quite interesting' an excerpt from the argument made in the brief in that case: "We are not trying the case of coal miners. We are not experts on coal mining. We do know that there are two great differences between the coal mining situation and the mining of iron ore in Jefferson County. In coal mining we find a union which has been strong and powerful and which as a union has been engaged in collective bargaining with the coal operators over a long period of years. In our case we find the efforts of the men to organize their union presents a pitiable picture of helplessness against the domination of the mining companies. In coal mining the men work seven hours per day. At no point in the voluminous record created by the appellants do we find a single ore mining company offe ing to pay its men on a seven hour day."

We submit that there are substantial factual differences between these cases, and we therefore come to the question whether the presence in these cases of genuine collectively bargained contracts covering the matter in dispute has any legal significance. The Court thinks they mean nothing. We cannot agree.

2. Neither invalidation nor disregard of collectively bargained agreements is authorized by the Fair Labor Standards Act. Both its legislative history and contemporaneous legislation are convincing that Congress did not itself intend to nullify them or to provide any legislative basis for this Court to do so. It is admitted that the Act contains no express authority for this decision. As was said in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123: 'In determining whether this underground travel constitutes compensable work or employment within the meaning of the Fair Labor Standards Act, we are not guided by any precise statutory definition of work or employment. Section 7(a) (29 U.S.C. § 207(a), 29 U.S.C.A. § 207(a)) merely provides that no one, who is engaged in commerce or in the production of goods for commerce, shall be employed for a workweek longer than the prescribed hours unless compensation is paid for the excess hours at a rate not less than one and one-half times the regular rate. Section 3(g) (29 U.S.C. § 203(g), 29 U.S.C.A. § 203(g)) defines the word 'employ' to include 'to suffer or permit to work,' while Section 3(j) states that 'production' includes 'any process or occupation necessary to * *  * production." This is every straw that can be picked from the statute for the Court to grasp at.

Likewise, the Court is unable to cite any item of legislative history which hints that Congress expected these words to be given this meaning. On the other hand, we find that pains were taken to assure Congress that there was no such intent.

The bills which ultimately resulted in this Act were introduced in 1937. As the District Court said 'Although * *  * statements were made at various times while the measure was being amended and revised, and therefore not with respect to the Bill in its final form, they show a continuing intention not to interfere with the processes of collective bargaining.' Examples are multiple. The Senate Committee on Education and Labor in its report of July 6, 1937, said:

'The right of individual or collective employees to bargain with their employers concerning wages and hours is recognized and encouraged by this bill. It is not intended that this law shall invade the right of employer and employee to fix their own contracts of employment, wherever there can be any real, genuine bargaining between them. It is only those low-wage and long-working-hour industrial workers, who are helpless victims of their own bargaining weakness, that this bill seeks to assist to obtain a minimum wage.' (Senate Report No. 884, 75th Cong., 1st Sess., pp. 3-4.)

The debates on the bill appear to us to make this intention more explicit. For example, the Congressional Record, Vol. 81, p. 7650, shows that the following took place in debate in the Senate July 27, 1937:

'Mr. Walsh. Next, does the bill affect collective bargaining agreements already made or hereafter to be made between employer and employee?

'Mr. Black. It does not.'

Of course it was agreed on all hands that no agreement could be validly bargained which provided for less than the minimum wages to be fixed by the proposed Board or for more than the specified hours of labor. But beyond observance of these limitations, we read the legislative history to indicate that the control of wages, hours and working conditions by collective contract was left undisturbed.

Definite assurance to that effect repeatedly given to the House are noted in the margin. Nor are these assurances surprising or paradoxical.

3. Congress refrained from enacting authority for this result at the request of the United Mine Workers, expressed in the testimony of their responsible representatives, whose plan for regulating the coal industry was enacted in the Guffey Coal Act, 15 U.S.C.A. § 828 et seq. In 1937, bills which ultimately resulted in the Fair Labor Standards Act were introduced in both houses of Congress and hearings were held. Major Percy Tetlow, an official of the International Union, United Mine Workers of America, as a witness in this case, summarized the attitude of the mine workers as follows:

'No, the Miners' organization has always taken the position that the question of wages, hours and conditions of employment should be governed and controlled by agreements under collective bargaining in the industry more so than by legislation. We have always taken the position that any legislation which will improve standards of working men and women,-to favor it and foster it and support it. Fundamentally, we are opposed to legislation that controls the daily wage and conditions of employment. We think that is a relationship that should exist between employer and employee.' This is in accord with the testimony of Mr. John L. Lewis, President of the United Mine Workers of America, before the congressional committees, when he said:

'For instance, frankly I would not want this bill to convey power to a board to order an investigation into all of the wage agreements in the mining industry right now, or to give the board power to decide that the collective-bargaining agreements in the mining industry were not sound, not proper, were confiscatory, or not in harmony with the facts of the industry, and order a modification thereof. I think the power of the board should be limited to cases which run below the level of the standards fixed by Congress. I see endless confusion in the adoption of section 5 now. I see a drift toward the complete fixation of wages in all industry by governmental action.'

Far from interfering with employer-employee agreements by this Act, the United Mine Workers advocated and Congress enacted contemporaneous specific legislation to confirm them in the coal industry. The same Congress which enacted the Fair Labor Standards Act of 1938 enacted the second Bituminous Coal Act of 1937, 50 Stat. 72, Chap. 127, 15 U.S.C. § 828 et seq., 15 U.S.C.A. § 828 et seq., which states that

'(a) It is hereby declared to be the public policy of the United States that-

(1) Employees of producers of coal shall have the right to organize and to bargain collectively with respect to their hours of labor, wages, and working conditions through representatives of their own choosing, without restraint, coercion, or interference on the part of the producers.' 15 U.S.C. § 839, 15 U.S.C.A. § 839.

It is impossible to believe that Congress in April of 1937 wrote such a specific declaration in favor of collective bargaining and a short time later by general phrases of the Fair Labor Standards Act intended to invalidate or disregard collective bargaining.

It may safely be said that over the past half century Congress has given more detailed and specific consideration to the bituminous coal mining industry than to any other single industry with the possible exception of transportation. The efforts of Congress, the travail of mine labor, and the dif iculties of operators are recited in this case and in extensive briefs by the Government and parties interested in the coal mine litigations that have been considered here. Cf. Appalachian Coals v. United States, 288 U.S. 344, 53 S.Ct. 471, 77 L.Ed. 825; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Sunshine Anthracite Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263. In the twenty-three years between 1913 and 1935 when the first Bituminous Coal Conservation Act was passed there were no less than nineteen investigations and hearings by congressional committees or specially created commissions with respect to conditions in this industry which were of grave national concern. These investigations had dealt with bitterly contested strikes, and with serious disorders which frequently resulted in bloodshed and martial law, and which on at least four occasions were restrained by intervention of federal troops. Other investigations were concerned with coal shortages and high prices and with the demoralization of the industry. The plight of this industry at that time was graphically summarized by Mr. Justice Douglas in Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263, for an all but unanimous Court: 'For a generation there have been various manifestations of incessant demand for Federal intervention in the coal industry. The investigations preceding the 1935 and 1937 Acts are replete with an exposition of the conditions which have beset that industry. Official and private records give eloquent testimony to the statement of Mr. Justice Cardozo in the Carter case, 298 U.S. at page 330, 56 S.Ct. at page 881, 80 L.Ed. 1160, that free competition had been 'degraded into anarchy' in the bituminous coal industry. Overproduction and savage, competitive warfare wasted the industry. Labor and capital alike were the victims. Financial distress among operators and acute poverty among miners prevailed even during periods of general prosperity. This history of the bituminous coal industry is written in blood as well as in ink.

'It was the judgment of Congress that price-fixing and the elimination of unfair competitive practices were appropriate methods for prevention of the financial ruin, low wages, poor working conditions, strikes, and disruption of the channels of trade which followed in the wake of the demoralized price structures in this industry. If the strategic character of this industry in our economy and the chaotic conditions which have prevailed in it do not justify legislation, it is difficult to imagine what would.'

It was against this economic background so well known to Congress that the plan for stabilization of the bituminous coal industry, through elimination of 'competitive warfare,' was adopted in the interests both of labor and the operators. In the light of the sustained attention Congress had given to the delicate economy of the coal industry and its plan to stabilize it by collective bargaining and price-fixing, it is unbelievable that it would undo a substantial part of that plan by the casual and ambiguous implication which the Court now attributes to the Fair Labor Standards Act.

4. The decision of the Court is contrary to the interpretations of the Act made by its Administrator on the recommendation of the United Mine Workers, and it denies to the Administrator's rulings the respect we have been compelling lower courts to render to such administrative rulings in the cases of others. It was not until 1940 that anyone appears to have thought the Act affected the coal miners' agreements. In the year 1940, an investigator of the Wage and Hour Administration, investigating operations of a coal mining company in Pennsylvania, raised the question whether underground travel time must be included in the work week under the terms of the Act. He stated his opinion that the 'face to face' basis, excluding travel time, was the proper one to be applied in the coal-mining indu try, but indicated that if a rule theretofore applied in the case of a gold mining company were required the coal company would owe some $70,000 to underground workers. This was brought to the attention of the President of the Central Pennsylvania Coal Producers. Association, and he in turn brought it to the attention of other operators and of Mr. Lewis, President of the International Union, United Mine Workers of America. Thereafter representatives of both the operators and the United Mine Workers conferred from time to time with the representatives of the Wage and Hour Administration. Both the operators and the Union officials opposed any construction of the Act which would require payment for travel time. On July 9, 1940, representatives of the operators and Mr. Earl Houck, director of the legal department of the United Mine Workers of America, jointly composed and sent to the Administrator of the Wage and Hour Division a letter setting out their views on the subject. They urged that such a change 'would create so much confusion in the bituminous industry as to result in complete chaos, and would probably result in a complete stoppage of work at practically all of the coal mines in the United States. Such a ruling, moreover, would establish such diversity of time actually spent at productive work as between different bituminous coal mines and within each mine that there would be no basis on which any general wage scales could be predicated, collective bargaining would therefore be rendered impossible throughout this industry, and the very purpose of the Fair Labor Standards Act would be defeated.' In response to the joint representations and recommendation of both operators the United Mine Workers the Administrator, July 18, 1940, ruled that 'working time on a face to face basis in the bituminous coal industry would not be unreasonable.' We have admonished lower courts that they must give heed to these interpretations. Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165; Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161. The District Court in this case did so, only to find them brushed aside here as of no importance.

5. This decision necessarily invalidates the basis on which the Government in operating the mines contracted with the miners and brings into question the validity of all the existing mine agreements. It appears to have been wartime restrictions on flat wage increases which finally led the United Mine Workers to reverse their former and to take their present position. It was not until the wage conference of 1943 that the United Mine Workers for the first time demanded that 'To conform with the basic and legal requirement for the industry, the maximum hours and working time provisions be amended to establish portal to portal for starting and quitting time for all underground workers.' But this condition was to be satisfied by a flat wage increase for all mine workers, whether or not they spent any time traveling underground and was not to be based on each individual worker's actual travel time, as the Court now holds the Act requires. The evolution of the Union's present demands is traceable through the sequence of events.

This March 1943 Wage Conference fell into dispute. The case was certified on April 22, 1943 to the National War Labor Board. The parties agreed after request by President Roosevelt to extend the 1941 agreement to May 1. The National War Labor Board on April 24, 1943 directed them, pending decision, to continue work under the previous terms. When May 1st came around, however, the miners went on strike, the Government seized the mines, and the strike came to an end May 6, under a temporary arrangement extending the old contract to May 31. On May 14, the Board directed the Wage Conference to resume negotiations. This reconvened and negotiations continued until June 20. However, when the extension agreement expired on May 31, a second strike began. On June 3, President Roosevelt appealed to the miners to return to work, and they did so after the President of the Mine Workers ordered them to resume until June 20. On that day there was a third strike, which lasted three days, when it was terminated on appeal by President Roosevelt, the Union again directing the miners to resume work until October 31. The conferences did not agree and the controversy went again to the National War Labor Board.

The Board found as follows: 'The Mine Workers' demand of $2.00 a day was * *  * based upon an assumption or estimate that the travel time amount (sic) on the average to an hour and one-half a day. * *  * The United Mine Workers proposed to spread this amount over all the workers including those who did not go underground, and so arrived at the proposed general wage increase of $2.00 for all mine workers. * *  * It is obvious that these figures are out of all proportion to any amount that could possibly be due to the mine workers under the Fair Labor Standards Act, even if the courts should decide all questions in controversy in favor of the mine workers. The demand is plainly and unmistakably a demand for an 'indirect wage increase in violation of the wage stabilization policies,' contrary t the Board's directive order of May 25, 1943.' And in a release on June 18, 1943, the Board said: ' *  *  * The United Mine Workers have not proposed to change the 'face to face' basis of payment. On the contrary they have proposed merely to increase the hourly rate under the present contract system. * *  * It would not be in fact payment to the mine workers for portal to portal. It is merely a general wage increase supported by the argument that the mine workers * *  * think they ought to have a general wage increase because on the average they will spend a certain amount of time in travel.'

Finding itself thus frustrated in its demand for a flat wage increase, the Union then negotiated with the Illinois Coal Operators' Association an agreement which provided for a $1.25 increase for each working day. The National War Labor Board refused to approve this as also violative of the national wage stabilization program. It was then, and apparently because it afforded the only means of obtaining an increase that did not conflict with the wage stabilization program, that the Mine Workers negotiated the second Illinois Agreement, dated September 23, 1943, of which the National War Labor Board said: 'The Illinois Agreement now submitted to the Board presents for the first time a true portal-to-portal method of compensation for the mine workers. The 1941-1943 contract provides for a seven-hour day and 35-hour week of productive time at the working face, excluding travel time. * *  * The Illinois Agreement proposes to substitute for this method of compensation an 8 1/2-hour day inclusive of travel time, with payment at straight time rates for the 8 1/2 hours and overtime payment at rate and one-half for all time beyond 40 hours a week.' The Board found that the effect of this was an increase which it could not wholly approve.

Meantime the Government had taken over the mines and on November 3, 1943, the Ickes-Lewis agreement was made. The method of wage calculation under the Ickes-Lewis Agreement was to treat each employee as having forty-five minutes of travel time, irrespective of his actual travel time. The War Labor Board on November 5, 1943 approved the Ickes-Lewis Agreement, and thus in effect granted a flat wage increase, uniform for all miners irrespective of their individual actual travel time.

The testimony in this case closed on November 24, 1943 with the mines still in the hands of the Government. The Government's policy, however, was not to return the mines until an operating agreement could be reached and approved by the miners and the operators. The operators by collective bargaining reached agreements which followed the provisions of the Ickes-Lewis agreement, the mines were returned, and this uniform method continues in use as a result of collective bargaining.

It is important to observe that, while there has thus been introduced a change in the method of computing working time, it by no means complies with and did not purport to be adopted because of the requirements of the Fair Labor Standards Act as now interpreted by this Court. If it is illegal for the operators and the miners by collective bargaining to agree that there shall be no travel time, it is obviously equally illegal to agree that the travel time shall be fixed at an arbitrary figure which does not conform to the facts. That the assumption of forty-five minutes of travel is an unfounded one is evident from the record in this case, which indicates that the average daily travel time in one of the petitioner's mines is eighty-eight minutes; and in the other, 67.1 minutes. If United Mine Workers' agreements are ineffective to make all of this time non-working time, how can they be effective to make half of it non-working time? Moreover, the averaging means that a part of the travel time earned by one miner is taken away from him and given to another who has earned less than the average, a procedure utterly unwarranted in the sta ute, if the statute applies at all. If the Fair Labor Standards Act entitles each individual miner to travel time, not according to the terms of his collectively bargained agreements, but according to the time actually spent, as the Court now holds, these Government agreements violated that law, the present agreements do also, and heavy liabilities both for overtime and penalties are daily being incurred by the entire industry.

6. This decision proceeds on a principle denied to unorganized workmen for whose benefit the Act was passed. The ink is hardly dry on this Court's pronouncement, in which all of the majority in this case joined, that: 'The legislative debates indicate that the prime purpose of the legislation was to aid the unprotected, unorganized and lowest paid of the nation's working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.' Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 902. That coat ill fits the United Mine Workers. But let us contrast the advantage which this decision extends to a powerful group so plainly outside of the policy of the Act with the treatment of groups that, being unprotected and unorganized, were clearly within it.

Little more than six months ago this Court unanimously remanded to the lower courts for trail and findings on the facts a case involving night waiting time of seven unorganized firemen. It said that 'We have not (attempted to), and (we) cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time. Whether in a concrete case such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court. * *  * This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. * *  * The law does not impose an arrangement upon the parties. It imposes upon the courts the task of finding what the arrangement was.' Skidmore v. Swift & Co., 323 U.S. 134, 136, 137, 65 S.Ct. 161, 163. That was in keeping with other holdings. Cf. Armour & Co. v. Wantock, 323 U.S. 126, 132, 133, 65 S.Ct. 165, 167.

Now comes this case involving the organized miners, and the Court holds that ' * *  * we are not concerned here with the use of bona fide contracts or customs to settle difficult and doubtful questions as to whether certain activity or nonactivity constitutes work.' It is held in this case that the time must be counted 'regardless of any custom or contract to the contrary at the time in question.' Can it be that this sudden refusal to weigh the facts is because as found by the District Court on almost undisputed evidence they are so decisively against the conclusion the Court is reaching? Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers, 53 F.Supp. 935. This was made plain also by the Circuit Court of Appeals, which said:

'In view of the long established custom in the coal industry not to include travel time in the work week, the collective bargaining contracts extending over a long period recognizing the 'face to face' basis of pay, the testimony before the committees of Congress, the reason and purpose of the Fair Labor Standards Act * *  * and the probable effects and consequences of construing the act to require travel time in bituminous coal mines to be included in the work week, there is strong reason for thinking, as everyone connected with the matter seems to have thought until recently, that it was not the intent of Congress that the act should be so construed in its application to the coal mining industry. The reasons in support of this conclusion are fully and ably set forth in the opinion of the learned judge below and need not be repeated. They would be convincing, were it not for the decision of the Supreme Court in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, etc., 321 U.S. 590, 64 S.Ct. 698, 703 (88 L.Ed. 949, 152 A.L.R. 1014), which we do not think can be distinguished in principle from the case at bar.' And it added, 'Under the circumstances, there is nothing for us to do but reverse the decision below. If it is thought that the decision of the Supreme Court should be overruled or limited so as not to apply to a case of this character, that is a matter for the Supreme Court and not for us.' Local No. 6167, United Mine Workers v. Jewell Ridge Coal Corporation, 4 Cir., 145 F.2d 10, 11, 13.

The Court now says Tennessee Coal Co. v. Muscoda, supra, is a precedent which controls this case and 'that there is no substantial factual or legal difference between this and the Tennessee Coal case.' That can be said only because the Court declines to look at the record of factual differences, casts them out as being immaterial. The fact is that the Tennessee case differed from this as night does from day. Two courts below had decided the vital facts in that case in the miners' favor. One court below has found the facts in this case against them, and the other agrees that its findings are convincing. The Court now declines to appraise the factual difference of this case and holds that this case was decided, although not before us, by the Tennessee case opinion, regardless of any variation of facts. This, too, although we have unanimously replied to one litigant who sought the benefit of statements therein that 'The context of the language cited from the Tennessee Coal case should be sufficient to indicate that the quoted phrases were not intended as a limitation on the Act, and have no necessary application to other states of facts.' Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168. We ought not to play fast and loose with the basic implications of this Act.

The 'face to face' method, whatever its other defects, is a method by which both operators and miners have tried to bring about uniformity of labor costs in the different unionized mines and to remove the operator's resistance to improved wage scales based on fear of competition. Under this decision there can be no uniform wage in this industry except by disregarding the very duty which this decision creates to pay each miner for his actual travel time. Thus, two men working shoulder to shoulder, but entering the mine at different portals must receive either different amounts of pay in their envelopes or must stay at their productive work a different length of time. Thus, too, old mines which have burrowed far from their portals must shoulder greatly increased labor cost per ton. The differential may be sufficient to make successful operation of some of the older mines impossible. Mining labor has tended to locate its dwellings near its work, and the closing of mines results in corresponding dislocations of mining labor. These are the considerations, so fully set forth in the Houck letter to the Administrator, which the Court is disregarding.

We can not shut our eyes to the consequence of this decision which is to impair for all organized labor the credit of collective bargaining, the only means left by which there could be a reliable settlement of marginal questions concerning hours of work or compensation. We have just held that the individual workman is deprived of power to settle such questions. Brooklyn Savings Bank v. O'Neil (Dize v. Maddrix) 324 U.S. 697, 65 S.Ct. 895. Now we hold collective bargaining incompetent to do so. It is hard to see how the long-range interests of labor itself are advanced by a holding that there is no mode by which it may bind itself to any specified future conduct, however fairly bargained. A genuinely collectively bargained agreement as to wages, hours or working conditions is not invalidated or superseded by this Act and both employer and employee should be able to make and rely upon them, and the courts in deciding such cases should hon r them.

We doubt if one can find in the long line of criticized cases one in which the Court has made a more extreme exertion of power or one so little supported or explained by either the statute or the record in the case. Power should answer to reason none the less because its fiat is beyond appeal.