(concurring specially) .

I agree that the cause must be remanded with direction for further trial and findings. Judge Fee correctly states that “The matter was treated at the trial as if the issue were the validity of the agreements exclusively.” The court then undertook to deal with what it conceived to be the issue before it by finding: “[T]he time credits agreed upon * * * bear a substantially accurate relationship to the actual time required by Plaintiffs to perform all the work required of them in that Plaintiffs were not required to work time in excess of said agreed credits to perform all the work required.” I agree that the problem before the court cannot be dealt with by lumping off all the claims in that manner, for, as the opinion states, each person whose claim was properly before the court, was entitled to prove that he worked more hours in his employment in any specific work-week than those for which he received compensation. The soundness of that position, thus stated by Judge Fee, is demonstrated by what the Supreme Court said in Bay Ridge Co. v. Aaron, 334 U.S. 446 , at page 473, 68 S.Ct. 1186, 1201 , 92 L.Ed. 1502 , as follows: “The defect in this argument, however the government’s position is construed, is that it treats of the entire group of longshoremen instead of the-individual workmen, respondents here.”'

The problem which confronts us has arisen from the fact that the collective-bargaining agreement undertook to assign a specified number of minutes to-certain stated tasks, and the agreement was that the “unit-time allowance” used in the contract should be the basis for computing the hours worked by each zanjero. 1 But as was held in the Bay Ridge *951 case, supra, and as Judge Fee has stated, the Act requires each employee to be paid according to the actual hours worked by him. My understanding of the holding of the Bay Ridge case is that this statutory obligation cannot be modified by any sort of agreement.

The trial court did not try the case upon the theory which we are now holding was proper here, and hence the proof of the time actually worked by individual plaintiffs was very sketchy. But there is in the record evidence, which so far has not been controverted, that some of the zanjeros actually required and took more time than that listed in the unit-time allowances of the contract to perform the named tasks. Thus the plaintiff Sturdivant testified that he could not make any of the lateral or farm changes within the time periods mentioned in the contract and explained why in detail. This testimony seems to indicate that when Sturdivant was called to make a farm change (for which 15 minutes was allowed) he often had to make headgate adjustments at several points for several miles along the ditch which were required upon the mere turning of the extra head of water at one farm. For instance, when the additional water was added to the ditch from which several heads were presently flowing, the increased supply in the ditch necessitated readjustments of the gates all the way along the line. He testified that he was not paid for all the work done on his division.

The witness Archer, another zanjero, described at length the manner in which lateral or farm changes had to be made, how a typical operation of that kind was accomplished, and how a farm change for which 15 minutes was allowed might require the zanjero to work up and down the ditch for miles taking as much as 6 hours for such an operation.

While the plaintiffs offered to prove in each individual case the exact number of hours that the zanjero put in, the court declined to go into that question because, as stated before, the case was not being tried on that theory.

I differ in one respect with Judge Fee and that is that there is no basis in the record for the court’s finding, quoted above, to the effect that the unit time allowances “bear a substantially accurate relationship to the actual time required.” I think that finding cannot be made for the simple reason that the proof of the actual time expended was not taken. I have difficulty in understanding just what that finding means. To me it does not spell out just what this “relationship” is. My best guess as to what that finding says is that these stated units represent “average” time required to perform the duties specified. If that is what it means it seems plain to me that some of these plaintiffs are necessarily entitled to recover. The act does not provide standards for compensation for average employees. It provides that an employee must be compensated for actual *952 time expended. No employer is required by the act to hire any particular employee and if his employee is below average in requiring more time to do a stated job the employer need not keep him. But if the employer hires a stated employee he must pay at least the minimum wage for every hour worked by that employee and time and one-half for every hour worked over 40 hours. Thus if these units represent some sort of average it would appear that the below average employees had put in more time than they were paid for.

In general my view is that although the negotiated contract between the association and the union appears to be the result of a sincere effort to arrive at a reasonable solution of a most difficult problem, yet the general principles which underlay the decision of the court in the Bay Ridge case, supra, necessitate a retrial of this case for the purpose of arriving at the findings called for in Judge Fee’s opinion.

. This was in Section 2 of Article XI which read as follows: