Walling

Appellant sued under § 17 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. '§ 201 et seq., to enjoin claimed violations ■of the overtime provisions of the Act. The appeal is from a judgment denying injunc-tive relief and dismissing the complaint.

Appellee is engaged in cementing, testing, and surveying oil wells, renting tools and equipment to persons engaged in the drilling or operation thereof, and furnishing skilled employees to operate the equipment. It has field employees consisting of cementers, testers, and so forth, whose work is not at a fixed establishment but at wells in the field. These employees operate from camps located at varying distances from the scene of their work. Since the oil well must be cemented, tested, or surveyed at a time specified by the owner or operator, appellee has no control over the volume of work nor the time when it must be done. Much time on the job is spent by the men in simply waiting around. The employees who perform the services and operate the tools are trained men, and additional skilled labor is not obtainable in busy periods. The volume of work and the hours of employment fluctuate widely from week to

week. In the slack periods…

(dissenting).

My associates have agreed to affirm the lower court in this case. Their determination is based on the decision of the Supreme Court in the case of Walling v. Belo Corp., 316 U.S. 624 , 62 S.Ct. 1223 , 86 L.Ed. 1716 . In that case, decided in June, 1942, the Court (by a 5-4 decision) approved a wage plan based upon written agreements between the parties which appeared to a majority of the Court to be a true statement of the understanding. A careful analysis of the Belo-case reveals that the Court was extremely careful to limit its decision to the precise facts and evidence in that case. It did not intend to set up a formula for other employers to follow in the future to facilitate evasion of the Act.

Since the Belo case, the Supreme Court has rejected similar, though not identical, wage plans as unrealistic and artificial. 1 . And just recently, in the case of Walling v. Uhlmann Grain Co., decided October, 1945, 151 F.2d 381 , the Seventh Circuit Court of Appeals (which, relying on the Belo decision, had originally approved the wage plan in the Harnischfeger case — later reversed by the .Supreme Court), upon a factual situation most similar to the case at bar,…