Evening star., 1947-01-05
Portal Pay Decision
Produces Headache
McNabb Case Recalled as u. S.
Joins in Mount Clemens Suit
By Joseph A. For

JOINS IN MOUNT 0ISHnenS QUIT
By Joseph A. For
The Supreme Court seemingly has
handed the Government another NC
Nabb case" to worry about. The new
decision is the one opening the Gates to
the multi billion dollar avalanche OF
portal pay suits. And from present in
dications the Treasury may share in
the headache which the Justice De-
partment inherited from the earlier
liti2ation-and continues to feel after a
lapse of four years.
The McNabb case itself, which was as
celebrated in its time as the portal pay
furore today, grew out of a murder. But
the court decided it on the same
tenuous grounds invoked in the ruling
against the Mount Clemens Pottery Co.,
which touched of the mushrooming
wage claims-congressio policy re-
putedly implicit in the law.
That 4-year- pronouncement still
Is bedevilling the Justice Department,
although it managed to get some relief
in later decision, on application to the
court. Now, faced with the prospect of
wage actions by unions that might cost
the Government huge sums, the Justice
Department again is seeking to tighten
a burden imposed by the court by in
tervening in the Mount Clemens case,
in hopes of getting the high tribunal to
amplify, its findings and better define
their limits.
On the theory that whatever IS done
ultimately will wind up in the Supreme
Court again, Attorney General Clark is
planning to file brief as friend Of
court in Federal District Court, Detroit,
where the Mount Clemens case was
remanded for determination of the
amount due the pottery employees, after
the Supreme Court upheld the lower
courts ruling giving the workers COM
pensation for walking time" between
time clock. and work bench.
With permission of the District Court,
the Attorney Generals brief will deal
with the "de minimis" doctrine epunci-
ated by the Supreme Court in the de-
cision-namely, that "few seconds or
minutes of work beyond scheduled
working hours" need not be considered
for compensation in applying the portal
pay principle.
The Supreme Court majority said that
the work-week contemplated by the
Wage and Hour Law must be computed
in the light of realities of the in
dustrial world" and agreed that the
"de minimis rule can doubtless be ap-
piled to much of the walking time in
volved" in the Mount Clemens case.
1t added however, that the precise
scope of that application" could be
determined only after more definite
findings by the lower court. The Justice
Department will argue for an applica-
ton that will protect fully the Gov
ernment's interests What is sought is
precise application of the de minimis
rule that can serve as a guide in the
future
In asking to intervene. Attorney Gen.
eral Clark pointed out to the Michigan
| court that many suits for portal pay
have been instituted against corpora
tions and individuals who operated in
wartime under cost-plus -fixed-fee con-
tracts with the Government, and that
any damages recovered might be sub
ject to reimbursement by the United
States.
The Government itself also might
face suits for walking time" in such
establishments as Navy yards and ar
senals, and another possible source of
loss is in taxes.
The McNabb case, which was recalled
by the Mount Clemens decision, de-
veloped when the Supreme Court set
aside the conviction of three youthful
Tennessee moonshiners, the McNabbS
for the fatal shooting of an interns
revenue agent, on the ground that the.
had been detained too long for question
ing before arraignment, and that the
| confession therefore was invalid. tt
decision was written by Justice Fran
furter-a dissenter in the MOI
| Clemens case-who contended 1t squar
with congressional policy" althou
Congress has not explicitly forbidG,
the use of evidence so procured"
In the wake of the decision, coui
throughout the country began tosSi.
! out convictions based on confessio
similarly obtained, several instances
the sort taking place here. The Supren
Court eventually eased the situatiol.
locally at least-by ruling in the Mtche
case that confession obtained while
prisoner was held legally was not nuli
fed by subsequent illegal detention.
Congress moved into the picture, and
the House twice passed bill by Repre-
sentative Hobbs Democrat, Of Alabama.
to relieve courts of the necessity of
considering the time-of f-arraignment
factor in passing on the admissibility of
confessions. The Senate failed to act
on the measure, but Mr.. Hobbs plans
another effort to get the legislation
through at this session. particularly
since the old precedent still stirs trouble.
celebrated woman journalist was ere