The opinion
ALLEN, Circuit Judge
(dissenting).
I cannot concur in the conclusion of my colleagues that the cubs and posters are not *1019 employees within the meaning of the Fair Labor Standards Act. It seems to me that § 3(g), which provides that “employ” includes “to suffer or permit to work,” was drawn specifically with such loose arrangements as cubbing and posting in mind. Incidentally, the holding seems to contravene a decision of this court, Huntzicker v. Illinois Central Ry. Co., 6 Cir., 129 F. 548 , which held that a trainee was the servant of the railway.
The record presents ample evidence that the cubs and posters not only were instructed as to their duties, but actually did the same work during their training period as they did upon becoming regular employees. In fact they learned the duties by working under supervision. It was the frequent practice of the railway, upon the absence of one of its regular employees, to substitute one of the cubs, and for such service to pay him the usual remuneration for that particular job. The next day this cub might be returned to his trainee status.
The District Court found that the trainees “perform work,” but that this work did not benefit the Company. In at least certain instances it seems to me that there is no evidence in support of this finding. Three of the witnesses acted as cubs for periods so long, Arnold twenty-two days, Prince, five weeks, Rosenheim, six weeks, that their work must have had some value or they would not have been tolerated. Boyd, Justice and Easton had had previous railroad experience, but were compelled to cub. Childers, who had had twelve years previous experience in a shipping office, was forced to cub in clerical work more than two weeks. It is argued that the cubs were not compelled to take their training at any specific time, but while on the trains in the yards and on duty in the offices they were subject to the railroad’s control. I think that work performed by such trained persons clearly benefited the company, and that there is no substantial evidence to the contrary.
However, the statutory test is not the benefit conferred but whether these cubs and posters were suffered or permitted to work. If they were they are employees. Plainly they were permitted to work, and actually did work. Since they spent time on the employer’s premises subject to call at least for certain periods, the time they spent was working time within the Fair Labor Standards Act. Armour & Co. v. Wan-tock, 323 U.S. 126, 132, 133 , 65 S.Ct. 165 , 89 L.Ed. 118 .
The decree should be reversed.