Evening star., 1946-12-24
Portal Wage Decision
Warning Now Realized
Supreme Court Minority Opinion
Pointed to Usurping of Power
By David Laurence

Pointed to Usurping of Power
By Dapid Laurence
Although the Mount Clemens CMich.)
pottery company case which has started
a wave of back pay suits or portal to
portal claims was decided on June
10 last, its financial consequences have
not until now become fully realized,
though Justices Burton and Frank
furter wrote dissenting opinions in
warning of what would happen.
The case was decided by vote of
to 2, since Justice Jackson was absent
in Germany and did not participate
and there was vacancy in the post of
Chief Justice due to the death Of Har-
Ian Stone. The majority opinion was
written by Justice Frank Murphy, for
mer Governor Of Michigan and former
Attorney General and concurred in by
Justices Black, Reed, Douglas and
Rutledge
After discussing the absence of pre-
else records as to time spent at the
time clocks or in walking from the
clock to the work bench, or the time
spent in changing clothes, the court
said: ut is enough under these cir
cumstances If there is a basis for q
reasonable inference as to the extent
of the damages"
Amazing Contradictions.
Such vague statement has opened
the way to all kinds of suits, but the
majority opinion further confuses the
issue by this amazing contradiction:
1--WE do not, of course, preclude the
application of de minimis' rule where
the minimum walking time is such as
to be negligible. The work week con-
templated by Section IA must be
computed in the light of the realities
of the industrial world When the mat
ter in issue concerns only few seconds
or minutes of work, beyond the sched-
uled working hours, such trifies may be
disregarded. Split-second absurdities
are not justified by the actualities of
working conditions or by the policy Of
the Fair Labor Standards Act. 1t 10
only when an employe is required to
give up a substantial measure of his
time and effort that compensate work.
ing time is involved"
What is negligible? What is Sub
stantial"? The Supreme Court has
written an ambiguous definition Of the
work week while Congress did not write
any but assumed custom would prevail.
The labor union lawyers now are adding
up the minutes so that cumulatively
these are not negligible but substantial.
One wonders if it ever occurred to the
Supreme Court members in the ma
jority that the labor lawyers could
add all the minutes together into, many
millions of dollars of claims.
Minority Opinion.
The minority opinion written by Jus
tice Burton and concurred in by Justice
Frankfurter said:
I'm interpreting work week as applied
to the industries of America, 1t is i'm
portant to consider the term as applica-
BILE not merely to large and organized
industries, where activities may be for
malized and easily measured on a split
second basis. The term must be applied
equally to the hundreds of thousands Of
small businesses and small plants en-
ploying less than 200, and often less
than so workers, where the recording Of
occasional minutes of preliminary activ-
tiles and walking time would be highly
impractical and the penalties Of liqui-
dated damages for neglect to do SO
would be unreasonable.
"Such universal requirement of re-
cording would lead to innumerable un.
necessary minor controversies between
employers and employees. Work week
is a simple term used by Congress in
accordance with the common under
standing of it. For this court to include
in it items that have been customarily
and generally absorbed in the rates
working time is not justified in the
absence of Affirmative legislative action"
That's about as plain a way as JUS
tices Burton and Frankfurter could tell
their colleagues that they were usurp-
ing power, that they were undertaking
TO- write laws which Congress itself did
not venture to write, and upsetting
customs and habits and arrangements
which have existed for decades in Amer
lean plants and business establishments.
When. the Supreme Court writes the
laws the whole economic system is in
jeopardy, for nobody in business or in
dustry knows in advance what the rules
are. Business then cannot depend on
the laws as written by Congress, but
must depend on words suddenly defined
or supplied by the Supreme Court 1t
was this very practice which the late
President Roosevelt argued against, but
his own appointees have apparently dis
regarded his argument and become
Legislators"