Evening star., 1947-02-09

job, still how can anybody claim
that If we are to be guided by the
principles enumerated in either the
Tennessee Coal or the Jewell Ridge
Co. cases, that walking time of the
type and amount involved in this
case can be considered as colnpen-
sable "in light of the realities of the
industrial world?
ALL "DE MINIMIS."
We hold, therefore, that, accepting
for the purpose of this decision the
theory that the Supreme Court set
at least IL minutes of walking time
daily as not being de minimis, it did
so with one, If not two, restrictions
to be used in computing what these
II minutes should cover:
tA) That it is only the walking
time to and not from the work
bench; or
e(B) In no event can we consider
walking time involved in going to
and from lunch for ones own CON
venience and necessity" and which
is not necessarily and primarily for
the benefit of the employer and his
business. Emphasis ours)
The maximum walking time under
such yardstick that can be reckoned
in favor of any plaintiff in this case
is 6.2 minutes daily (mould depart
ment).
If, on the other hand, the Supreme
Court did not intend to even inti-
mate or indicate what it thought
was de minimis in walking time, 1t
is our opinion and we hold that We
would not go lower than IL minutes
as above restricted (the minority
opinion indicates that 10 minutes
would surely be de minimis) and
without setting any de minimis fig
ure herein, hold all the walking and
preliminary activities time consumed
in this case is de minimis.
RETROACTIVITY.
We go one step further, and we
hold that should we be in error in
determining what the Supreme
Court meant; should it be held that.
the Supreme Court intended the
walking time to be computed both
ways, morning, noon and night, and
that this pyramided walking time
being over IL minutes was not de
minimis, we then believe that in all
fairness to this defendant such a
holding would be of nature not in
tended by either the Fair Labor
Standards Act or Congress, and that
ii would amount to an unfair and
unexpected penalty against this de-
fendant unless we took a second step
and applied the doctrine of retroac-
tivity in alienation.
In this particular case this COM
pany relied upon the Wage and
Hour Act as administered and inter-
preted by the administrator and the
courts. A representative of that
department checked on the method
OF computing time and overtime at
this plant in 1889 and placed its
stamp OF approval thereon. If the
opinions, administrative letters, reg
ulations, and decisions of our courts
were followed this would warrant
any industry, including this defend
ant, in, not computing less than 20
or Is minutes a day, in walking time
and preliminary activities, as COM
penSable. Tennessee and Jewell
Ridge cases.)
The doctrine that walking time
and preliminary activities under
some circumstances are compensate
is not new. But a close analysis of
cases that have passed upon the
question indicates that they do not
apply to the general field of manu-
facture, except where the employe |
admittedly had to report at a GER
tain hour or the walking and pre-
liminary activities time was CON
siderable" or substantial"
Never before has any one at
tempted to bring walking and pre-
liminary activities time consumed
into such narrow, picayunish,
meager sphere Furthermore we do
not believe that the Supreme Court
ever intended such an interpreta-
ton.
This is not the case of a plant
protection man who has to don a
uniform, respond to roll call, stand
for dress inspection, look for his
assignment, and walk to his post.
Yellow Truck g. Coach Mfg. Co. v.
Edmonson, 155 F. I'd 387. This is
not the case of firemen who, in order
TO relieve other f1renlen, had to come
in early to be ready to take over.
Ballard v. Consolidated Steel Corp,
81 F. Supp. 995.
Case Is Manufacturing,
Differing From Others.
This is an out-and-out manu-
featuring case, differentiated from
coal mines and other specific types,
and what applies here may later
be held to apply to industry in gen.
eral. And this court takes the posi-
ton that since the question of re-
troactivity was never raised before
the Supreme Court at any time, we
have the duty of passing upon that |
question here "in conformity with
the opinion and judgment of this
court as according to right anG
justice and the laws of the United
States" (See mandate) See also
IL eye. Fed Procedure 621.
Time and time again it has been
held that the regulations of the
administrator, his opinions, his let
tiers, should carry great weight,
United States VS.. American Truck
ing Association, Inc. $40 U. S. $40;
Jewell Ridge Coal Corp. VS.. Local
5167 UMWA (supra), and applying
that rule to the case at bar the
plaintiffs cannot recover. Any
change in walking and preliminary
activities times to below 20 or Is
minutes daily, adding the two to-
gether and counting walking time
as the time consumed going to work
in the morning, going to and re-
turning from lunch and then after
work, would, we believe, call for a
l. 4 L i