Evening star., 1946-12-23
Hiqh Court Decision
On Back Pay Is Hit
Huge 'Extortion' Seen in Ruling
All Time in Plant as Work
r., n,u:J o,ueouco

By David Laurence
Unless Congress puts stop to 1t by
remedial legislation, the way has been
opened to the biggest extortion in
American history-an attempt to obtain
an estimated s5,0o0,00o,00o from en-
ployers on the pretext Of back pay due.
recent decision Of the Supreme
Court in the case of pottery company
at Mount Clemens, Mich, says that the
40-hour work week established by Fed
eral law includes all time during which
an employe is necessarily required to be
on the employers premises"
This is now being interpreted by labor
union lawyers to mean that back pay is
due as long ago as 1888, when the wage
and hour law was passed, and that 1t
includes the few minutes each day spent
in changing clothes at the factory or ir
going from time clocks to work benches
inside factory gates.
Here is an instance in which customs
prevailing for generations in industry
were brushed aside by an arbitrary piece
Of legislation written not by Congress,
but by the Supreme Court itself. The
late President Roosevelt, who appointed
a majority of the members on the
| present court, carried on his crusade
| against the previous membership Of the
| court on the ground that it wrote legis-
! lation. But here is an even more
fragrant case than any ever protested
| by the New Deal.
Already back pay suits involving $375,-
| al ND tc nrti
| mated in some quarters that suits about
to be filed will increase the sum well
beyond $4,000, 100000.
| Already, too, there is evidence that
some labor union leaders are planning
/ to trade waivers of some of those back
| pay claims for concessions employers
might be induced to make on regular
wage scales or other demands IN COL
lective bargaining negotiations.
Pay Claims Cannot Be Compromised.
But the Supreme Court has decided
that back-pay claims under the Wage
| and Hour Act cannot be waived or
| compromised except where questions Of
| fact and not law are in dispute. Thus
| the dispute over whether time spent in
walking to a work bench is or Is not
working time cannot be compromised
but must be tried by the courts. For
any labor leader to try to compromise
such suits means running counter to
| the provision of the recently enacted
Hobbs law, which says:
"The term 'extortion' means the OBJ
tanning of property from another with
his consent i. - under color of ofhcial
right.
whoever in any way or degree -
affects commerce by extortion
shall be guilty of felony
This means that any labor leader
who represents that he has the right to
compromise claims under the wage and
hour law and to trade such alleged
right for concessions in any negotiation
requiring the employers consent may
run up against felony charge, punish
able on conviction by imprisonment for
not more than 20 years or by fine Of
not more than $4,000.
If big sums for back pay are re-
covered by unions through suits inde-
pendent of any collective bargaining
negotiations, the American taxpayers as
| a whole may have to foot the bill. This
is because, under existing tax laws. the
employees can attribute income for back
| pay awards to the tax rates Of those
years in which they worked for the
back pay, and it seems logical that
| Congress will soon amend the law to
give the same privilege to employers,
who incurred the expense for the most
part in war years, when excess-profits
tax rates of 80 per cent were in effect.
| Long standing Agreements Upset.
Congress cannot explicitly by new
statute correct the Supreme Court de-
cision in the Mount Clemens case, be-
cause that would be a retroactive law.
But, just as happened with the wind
| fall tax when the Agricultural Adjust
ment Act was declared invalid, an "un-
| just enrichment tax" can be levied.
What the American people, however,
will resent most about the decision in
| the Mount Clemens case is that the
Supreme Court upsets understandings in
effect for generations between employ
ers and employees as to working time
and does so retroactively. Plainly, If
Congress cannot enact retroactive legis-
lation, the Supreme Court ought not to
be permitted to do so either.
Congress can, of course, limit the ju-'
risdiction of the courts to those back
pay cases in which proof ,of working
time is actually adduced by the en-
ployes, and can limit the filing OF suits
to those of not more than one year back.
| Some definite r1Ile by Congress legally
defining the work week" also is needed,
/ because there is none now. Otherwise,
even Office workers may soon be claim
ing back pay for time spent in waiting
for elevators in crowded buildings or in
time consumed in reaching skyscraper
| offices.
While the Mount Clemens decision
doesn't cover such instances, it does
leave open the way for future decisions
of the Supreme Court to be just as arbi-
| trary as in the case of the pottery en-
| ployes, who were awarded pay for the
few minutes spent in walking from the
factory gates to work benches.
| Perhaps some day employers will wake
up and, under another Supreme Court
decision, find themselves liable for mill
lions of dollars. in back pay for time
spent by their employees in riding to
work from their homes in autos or
streetcars or buses. The present law
doesn't prohibit this sort OF ruling but
a capricious- minded court can legislate
whenever it pleases unless Congress acts
soon to clarity the Wage and Hour Law.
| Demonstration Riohts Reserved