Earl Warren: Solicitor General.
Archibald Cox: Chief Justice, I have just one or two moments remaining and I would like to take them with the Court's permission to indicate how the Incres case which is to be heard after these N. L. R. B. cases fits in to our scheme. The -- we've not asked for time in that case and I think to round out the problem, it might be proper to say just a word or two about it. Our basic proposition as I indicated before lunch is that the flag is not only so much the most convenient but indeed the only convenient way of determining which nation may regulate a unitary problem of labor management relations, that the flag should be regarded as decisive where it has some solid foundation and usually in the fact that the vessel is carrying the trade of the flag country. Now the Incres case which is to follow this, you will find that the vessel sails under the Liberian flag but has virtually no contact with Liberia and specifically carries no Liberian trade. If the vessel were U.S. owned and beneficially operated, if it were operated as part of an enterprise based on the United States, shall I say, in the sense that the aluminum industry is based on the United States or the parts of the steel industry. Then we would have the question which the Government does not reach. But in the Incres case, the vessel is not beneficially owned or managed by what is essentially a domestic corporation. The vessel is Italian owned and operated in every beneficial sense and the immediate corporate owner is a Liberian corporation. The crew and articles are Italian. The owner of the New York agency which handles the bookings for these cruises is Italian. The home port of the vessel is Italian and the only connection with this country really is that it carries trade out of New York to the Caribbean and back again. So that even if it be said that the flag is a fiction, in our view, there is not a sufficient U.S. interest in this case to attack the fiction assuming that it can ever be attacked, virtually, everything about it is formed. Now the case does have one added complication. It's been held that a state court does not have jurisdiction to deal with a labor management relations problem where it is arguably dealt with in the National Labor Relations Act. And in the case involving the Great Lakes last term, the Court said that this rule applied where the question was whether these were employees and this was a labor organization arguably within the meaning of the National Labor Relations Act. We think those cases but notwithstanding those cases, the Court of Appeals of New York erred here because on these factual reason. This fact, it is not even arguable we think, that the National Labor Relations Board would have jurisdiction. Now the facts, the decisive facts in our view are all known. There's no problem of growing inferences. No problem of weighing or balancing or occasion for the use of expert discretion. Second, we think the doctrine of arguably subject should not be applied in this area where the question is one of the statutory jurisdiction of the Board, vis-à-vis the claims of foreign nations because this is a matter of some one person must do it. You can't all take hold of it. This is not a field which involves the interpretation of some broad term contained in the Act such as employee or labor organization. It's a matter in which the Board has no particular expertise and we would think therefore that it is not cut in to the usual doctrine to say that it has no application here. We conclude therefore that to disregard the registry of either the Honduran vessels or the Liberian vessels in the words of this Court, does not fit the accommodations that become relevant in fair and prudent regard for the interest of foreign nations in relation to their own ships and their own nationals, and the effect upon our interest of our treatment of the legitimate interest of foreign nations.
Potter Stewart: Where were those words spoken?
Archibald Cox: Those come from the Romero case.
Potter Stewart: Alright.
Speaker: Could I ask you one question before you sit down? It is the injunction of the District of Columbia case refer to the same certification as the two Court of Appeals?
Archibald Cox: The same direction of an election.
Speaker: So you've got two injunctions out.
Archibald Cox: We got two injunctions out against the same election.
Speaker: So it would be conceivably possible to decide this case on either one of those.
Archibald Cox: Oh yes, I think that if the case were decided in the District of -- on this certiorari to review the decree of the District Court and the District of Columbia, the other one in the sense, I take it would become moot.
Speaker: It is -- and it's the other one that presents the employer situation.
Archibald Cox: That's correct. And that's one of the reasons we didn't bring the question here.
Earl Warren: Mr. Mandon -- Marden, is that it?
Orison S. Marden: Mr. Chief Justice, may it please the Court. There is a division among counsel seated on the same side of the table in this case just as there happens to be a division within the Government of the United States. For example, Mr. Cox, although arguing more persuasively than could I, the merits of Empresa's case before this Court on the facts of our particular case has asked the Court to affirm on a theory which in our view as expressed by him has no foundation in our law or in international law and is based really on a combination of flag law with the universal arranging plus the context test that the Board, as we contend, erroneously applied here. And Mr. Cox has affirmed the power of Congress to legislate with respect to labor relations in foreign countries on the high seas which is a thesis we deny. On the other hand, Mr. Manoli, our opponent, has expressed the view that this Court must face up to the law of the flag problem and that somewhat contrary to the position, I think, expressed in his brief that the law of the flag is really the controlling concept which either we must affirm or deny. To me, the impact of this case on the world community of nations can best be seen if we reverse the nationalities. If we assume a fleet of American flag vessels based in Baltimore, home port Baltimore, flying between the ports of this country and Honduras and other South and Central American ports manned by American seamen represented by an American union, the National Maritime Union, regulated by the National Labor Relations Board. I can hear the outcry from Maine to California if the Republic of Honduras in that situation were to assert the right to handle labor relations and regulate labor relations upon our ships on the high seas and in the reports of nations other than Honduras. Now my friends will say, “You haven't mentioned one little fact”, and that fact is that in your supposititious case, the stock of the ship owning company in the United States was owned by Honduran interest and furthermore, you have time chartered your ships to that Honduran interest. I say it makes no difference whatsoever. In either case, we have the Stars and Stripes over these vessels carrying the protection of this country subject to the regulation of our Labor Board manned by American seamen and that we would reject with all the power in our -- in our -- at hand, any attempt by another country to interfere in that situation. Now that is precisely, precisely what has happened here in the reversed situation. For more than 20 years, Empresa and essentially a genuinely Honduran corporation as the findings of the Board show independently operated all its officers in Honduras, all its directors in Honduras, owning property in Honduras, owning land, they're paying taxes to Honduras, owning these ships, a perfectly respectable trade since the memory of man, one is not to own ships and to charter them out. This cooperation subject to Honduran law, registering its vessels there, subject to a whole complex of labor legislation and ship legislation governing these ships, has now been told by an instrumentality of our Government that all these is to be swept aside and that each ships, at least while they're within the territorial waters of the United States, must conform to the orders and regulations of the National Labor Relations Board. And yet, Mr. Manoli tells this Court that none of these intrudes on the sovereignty of Honduras. Now, I won't go into the facts in great detail. Mr. Cooper made a very impassioned plea on the facts, very much the same contentions that were made before the Board. The Board in large part rejected his contentions as the findings of the Board show. Board found that Empresa was independently operated and insofar as Labor Relations go on the facts putting -- is leaving aside the erroneous legal conclusion that the Board reached. On the facts, each and every step in Labor Relations without any exception whatsoever were handled by Empresa, Empresa alone. Empresa hires his men in Honduras. They sign ships articles there. They -- it is a Honduran crew entirely subject to the direction at all times of Empresa masters. The fact that they are time chartered does not detract in the slightest from the responsibility of the shipowner over Labor Relations, that's true of every time charter unless Cooper speaks of the fact that the time charter were here. The holder of the time charter controls the movements of the ship, well, of course he does, of course he does. That's true in any case. That's true if we have -- if we had -- if United Fruit had chartered a Norwegian vessel or a Greek vessel. Of course, it controls the movement of the ship but Labor Relations on those ships so time chartered are handled by the shipowner, and that's universally true. Now under Honduran law to which we are subject as a Honduran corporation and parenthetically during the recess, I have made inquiry with respect to Mr. Justice Stewart's question with respect to whether an -- a U.S. interest could register under Honduran law and I believe I'm reliably informed that they could but in that event, they would of course subject the entire operation to the whole colloquy of labor laws and other regulations of Honduras and with all labor grievances would have to be handled under the laws of that country and not under the laws of our country. Now the Board order here is -- which is a strange result. It directs that an election be held on these foreign-flag ships on a ballot which gives the unlicensed seaman a choice between the N.M.U., a Honduran union known as Sindimar and no union. Now the N.M.U. could not possibly represent these seamen under Honduran law. It's specifically forbidden that any union not composed of 90% Honduran citizens and not directed by a full compliment of Honduran citizens as officers and whose -- who has not been recog -- which has not been recognized under the laws of Honduras cannot, in any case, in any situation, represent Honduran citizens. So it's completely --
William J. Brennan, Jr.: Mr. Marden --
Orison S. Marden: -- aborted.
William J. Brennan, Jr.: I gather Honduran law is that the crew must be Honduran citizens and not really Honduran vessels?
Orison S. Marden: I think citizens, yes sir. Now that has never been -- that has never been denied since we first brought it out and I am still puzzled as to why the National Maritime Union continues a purs -- to pursuit an objective -- pursue an objective which cannot possibly result in any benefit through that union under the conceded law of Honduras and over the protest of its Government. Now the Honduran union, Sindimar, contrary to what has been said was never a party really to the proceeding before the Board. It sought to intervene long after the hearings had been closed and was on other claims that it represented a growing number of the seamen on our ships. It was allowed to intervene by the Board without any hearing, without anybody having an opportunity to say anything about it. It's a paper organization as was said was found in another Board proceeding. It has shown no interest in the litigation before this Court or in the Court of Appeals. The third choice is no union. But our employees are members of a Honduran union with whom we have an existing contract and with which we've had an existing contract for over 20 years. And yet, they were not under the Board order even given the opportunity to vote for their own union. Now one can imagine the chaos and the confusion of the implementation of such an order by our Labor Board. On these -- among these unlicensed seamen, not only coming into the ports of this country but under the Board order, the balloting was to take place even outside the territorial waters of the United States. A seaman sitting in his cabin at Puerto Cortés in Honduras would be required to want a ballot as prescribed by this -- to them of foreign administrative agency. Now, if the Board's theory that a conflicts test such as the court -- this Court announced in Lauritzen is to be applied here and we say it should not and cannot because it's an entirely different situation but assuming that it should be applied, then I think Mr. Cox has presented a most persuasive and conclusive argument for the proposition that the Honduran context far outweigh those of this country and that on application of that test, the judgment must be affirmed. Judge Friendly found below in this as the Solicitor General has argued. But the very fact that we have these differences illustrates to my mind the difficulties with applying the context of test. Here we have the Board applying what they call the Lauritzen rule and reaching a conclusion different from that reached by the Court of Appeals below differing from that, urged by the Government of the United States here. One can imagine if you apply this internationally, the difference is in the weight that Honduras would give to certain of the context or Venezuela, or Great Britain to those that others would give. It's an impossible theory, I submit, that is being urged on this Court and while it's sufficient for the purpose of my case, I respectfully suggest to the Court that it is a test that should not be applied and without basis in law. Now the flag, the flag rule, is one of our most ancient in international law. It's a rule that this nation has followed since its beginning. It's a rule that was followed long before we were -- this nation was formed. It's a rule that is universal. It's certain. It's definite. Everyone knows what it means. It is not susceptible of the differences of opinion that come from applying such an uncertain rule as the context rule. Now even our enemies observe the law of the flag and it is the rule, we submit, that should be applied here. Now under that rule, on the high seas and in the ports of the flag state, the internal management of the vessel is governed entirely by the law of the flag state. Some people call it a fiction. Is citizenship a fiction? Within the territorial waters of a literal state, it's perfectly true that there is power and international law recognizes that power to a limited degree to interfere with the jurisdiction of the flag state in such matters as policing the harbor at local matters. In some cases, the wages of seamen where there's a local difficulty with free payment of wages and that sort of thing. But with that slight exception, it is the universal rule that flag law governs. Now why should --
Speaker: Of course the kind of a case as I understand it, the Solicitor General says need not be decided here is the situation where in effect the foreign nation licenses out its flag to somebody else.
Orison S. Marden: Well, Mr. Justice Harlan, it is also the cardinal principle of international law as I understand it and that has been reaffirmed in the convention of the sea that Geneva Convention on the sea, that only the sovereign which issues the registry -- permits the registry is confident to judge as to its own regulations and what it enforces. But there is an admonition that came out of the Geneva Convention that each flag nation should actively assert its jurisdiction and really, really control the vessel and its internal management by its laws and regulations. And I submit that category number four which is given by Mr. Cox is equally entitled to all the benefits that flow from a flag registering. I think that if there are evils of any kind in such registrations, they must be handled in some other way. It's too important in a world that's grappling for agreement on many things to let this matter as to which there has been agreement for so many centuries as they set aside by a unilateral action on our part. We know of no case by any nation in any jurisdiction where a state has sought to impose its labor laws aboard foreign flag vessels. These are -- this is the first attempt of which we know this attempt by the Labor Board. Our neighbor Canada had the question before them recently. The case is attached. The decision is attached to Canada's brief amicus here. There, vessels of British registry but owned by Canadian interest 100% and spending more than six months of each year within Canadian waters were held not to be subject to the labor laws of Canada on a state basis of application of the international rule of flag law government. Now, this Court in the Benz case, it seems to me has already decided this one. A close reading of that case which makes a close study of the text of the Act, the congressional debates, and the canons of construction which governed the construction of congressional legislation, came to the square conclusion that the Act was not intended to reach out and cover Labor Relations Board foreign flag, foreign ships manned by foreign crew. The fact that that ship happened to be, as I say temporarily here, it is not in our view, the slightest consequence every vessel is here temporarily and it -- that is true in any case. And that illustrates another fallacy in the context rule. Empresa might win this case on the facts here. Who knows what will happen tomorrow? Who knows where our stock may lodge tomorrow? Who knows where our vessels maybe time chartered and between what ports they will apply next year. Well, in each of these cases, we have -- well, we have to come back to the Labor Board and have it adjudicated all over again whether we are subject to the laws of this country or the laws of Honduras. And that can -- that sort of conjecture can be carried on adding some item. And it seems to me it demonstrates so clearly that flag law must be the governing principle. Now the Solicitor General very rightly says that this Court should not go beyond the facts of this case. I don't suggest the contrary. But in deciding the case, if the Court decides it on a theory which is erroneous and mischievous, and one that can only lead to further litigation and difficulty, whereas it can be decided on a simple universally applied rule. I would think that the choice is clear and it is that choice that we respectfully urge upon the Court. Now, so much has been covered by the earlier argument that I am going to skip some things I wanted to say. I do want to point out that there is an existing Treaty between this country and Honduras which in our view requires application of flag law in our situation. It's a statute which is not noble to Honduras and the United States. It has been applied in the -- it is in existence here in a number of other cases. I think one other -- with one other --
Hugo L. Black: What part of that Treaty do you think based on that?
Orison S. Marden: I think Article X, Mr. Justice Black, which affirms the --
Hugo L. Black: I'm speaking of your brief.
Orison S. Marden: They respect -- it is in the appendix to our brief at pages -- page 65.
Hugo L. Black: Well, I found it on page 30.
Orison S. Marden: Oh, I see. Well, it's the same Treaty. Article X affirms with respect of each contracting party for vessels flying a flag of the other and Article XXII also on page 20 -- 65, advance counsel officers exclusive jurisdiction over controversies arising out of the internal order and so forth.
Hugo L. Black: What about the last sentence, the part with --
Orison S. Marden: The last sentence, Your Honor, I think illustrates what I said earlier that there is an exception to the general rule of international law namely, that in the port and within the territorial waters of another nation, it is recognized that local conditions would -- might -- may warrant exercise of undoubted power to take some action and I think this might, for example, have to do with -- an illustration might be prepayment of wages which under one of our statutes is forbidden. But --
Hugo L. Black: I would suppose that so far as reliance on your Treaties stand alone, the last (Inaudible) would make it rather difficult because it says that the local laws permits, they can exercise jurisdiction over each -- it's concerning the adjustment of wages and the execution of contracts relating they do. I would think it's probably that we can draw argument on your Treaty, would it not?
Orison S. Marden: I think that there is -- there is power within the territorial limits of the United States to take action of almost any kind, but international comity has -- so thus far prevented this country and others from taking any steps within their territorial waters with respect to internal management of foreign-flag vessels except in certain limited areas and it's only as a matter of comity that I present the argument as test to what can happen within territorial waters. When you go beyond territorial waters, I think there is serious doubt as to the power of Congress to legislate with respect to labor conditions on foreign-flag vessels on the high seas and in their home and other ports. We present that in our brief. It's -- I don't think that's ever going to reach it because I think the statutory construction points are so strong that it's unnecessary to consider constitutional points but we do urge it and we urge it seriously. We think that --
Hugo L. Black: On what constitutional provision do they have --
Orison S. Marden: Commerce, commerce power of Congress. We suggest that Congress does not have the power to legislate under the commerce clause with respect to labor relations for example in a factory in Honduras. We don't think the people have the power to give it to Congress in the first place under international law in the context to which our Constitution was adopted.
Hugo L. Black: Why wouldn't that -- I don't know that we have ever reach that but it's been held that the commerce power of nation can regulate the kind of goods that will be shipped in commerce and the hours that which people work in the states or matters where they couldn't. Federal government does not have jurisdiction. Now, I think that would -- might be an answer to your argument about commerce clause?
Orison S. Marden: I appreciate as a difficult point to Your Honor but I think a point is reached where our sovereign power cannot lawfully legislate. And I think that the high seas on foreign-flag vessels is such a point and is not different in truth from legislating with respect to labor conditions in a factory in Honduras or on a banana plantation that -- in Honduras.
Hugo L. Black: As I recall that one thing which (Inaudible) had a pretty exhibitory effect on the act of Congress was that when Congress wasn't sure with committee reports with respect to (Inaudible) this kind of ship and (Inaudible) as any place in the world unless they've -- as they work more than five days a week.
Orison S. Marden: Of course we can prevent anything from coming into this interest and anything from going out.But when we assume to govern relations between the management and labor not within our own territories but in some other part of the world, it seems to me that we've reached the point that where we've exceeded our power.
Hugo L. Black: Of course the questions I've asked have no relationship whatever to your main argument that the Act should not be read in going beyond what you have said.
Orison S. Marden: Yes Your Honor. Now, as I've stated, we feel that the Benz -- the Benz holding is controlling here and that its application disposes of the case. The labor laws of Honduras have been referred to earlier in the -- by the Solicitor General. They're very elaborate, very complex, very detailed, very foreign, and Empresa and its employees are subject to those laws, all labor grievances must be processed before the labor courts of Honduras and in the Ministry of Labor. And this Board order, of course, in its element effect, if it's sustained, not only requires us in precedent to breach its contract with the Honduran union with whom it has and has had an existing contract but also would require us to violate the law of Honduras in a number of respects. The Board's order sows the seeds as Judge Friendly said below of continuous conflict between the regulatory measures of two jurisdictions. The Solicitor General pointed out so persuasively I thought that it is impossible in this area and to have a workable arrangement whereby two nations governed the labor relations of -- on a -- aboard vessels. You could have them changing from port to port and -- rather than assist the free flow of commerce, you will be putting a straightjacket on Congress -- on commerce. Certainly, we couldn't enforce it beyond the three-mile limit. Honduras could send a gunboat up here and take charge as soon as they got outside the territorial limits of the United States. Now, we've raised as I've already indicated some constitutional questions. I don't think it's necessary to go into them in argument. They're in reserve. We've urged them from the beginning. A question of jurisdiction was raised by Mr. Justice Brennan. It hasn't been referred to by our opponents. It is our view that (Inaudible) sustained the jurisdiction of the District Court. There as the Court will recall, a union brought suit to vacate a Board order which has been issued in violation of statutory command and as Mr. Justice Whitaker pointed out the sole and narrow question presented was whether the Board had acted in excess of its power. We say here that the Board did act in excess of its powers and if there ever was a case where a court should have stepped in when it did, this was that case because if this election had proceeded, the fact would've been in the fire. The point to Honduras would've occurred. The breach of contract, our breach of contract would have occurred. Our violation of law with Honduran law would have occurred. If we say the rule is the same for employer and employee and as Judge Friendly pointed out below. And parenthetically, I think it's of interest with all the talk of avoiding the delay of judicial action that as Mr. Cooper pointed out, we were two years in obtaining a decision of the Labor Board, I say that without any criticism. The Board decision here came down on November 17th. The District Court took two days to dispose of our application for a temporary injunction. The Court of Appeals acted on January the 12th so that we were in fact ready for this Court within two months following the entry of the Board decision. For the reasons given, we respectfully urge a premise and we particularly urge upon the Court that flag law should be the decisive basis for your premise.
Earl Warren: Mr. Rhyne.
Charles S. Rhyne: Mr. Chief Justice and may it please the Court. I represent Sociedad, the Honduran union which has for the past 20 years represented the crewmen, the unlicensed crewmen aboard these vessels of Empresa. There are 335 of these unlicensed crewmen. All of them are Honduran citizens except one who is a Jamaican. I believe that the impact of the Board's order upon Sociedad and the crewmen that it represents is probably more drastic than on any other party before this Court. Because if the Board order is upheld and the Board is successful in enforcing it throughout the world, it means literally this that Sociedad will go out of existence and these crewmen will lose their jobs. Because, number one, Sociedad is not named and cannot be named under Honduran law as one of the unions for which these crewmen are allowed to vote under the Board's order .Number two, under American law, if full American jurisdiction is shoved aboard these vessels at 75% of the master crew of each vessel must be American citizens just as the requirement that has been referred to in answer to Mr. Justice Brennan's questions. Honduran law requires 90% of the master crew to be Honduran citizens. Now, I'm glad that Mr. Manoli corrected his statement that our contract has gone out of existence because as we have alleged in our complaint and as they admit, the contract is in existence to April 15, 1963 and there's a provision set forth on page 21 of the record which provides that unless either party gives 30 days notice, the contract is renewed automatically for another two years. There was one other fact that was said here by someone much more expert than I, Mr. Cooper, about wage rates in this field when he said that the Honduran wage rate were about one-fourth those of American seamen. I can't believe that is accurate. I have merely hearsay information but if you look at pages 16 and 17 of the record where we set forth the wage rates of these Honduran seamen in American dollars. Some of them get as much as $210 a month and I doubt seriously that we have many crewmen aboard American vessels earning $900 a month. So with those statements about the factual situation, I would merely say that what the -- we are faced with here is the replacement aboard these Honduran vessels of the very complex, the very modern Honduran Labor Code which, as it's been pointed out, it's attached to their brief of Honduras here which is in many ways much more modern as the Solicitor General has mentioned some of the things in our own law with the complex labor law of the United States of America through the National Labor Relations Act.
Hugo L. Black: Excuse me, did you say page 16 and 17 of the record?
Charles S. Rhyne: Yes.
Hugo L. Black: In number 91 and 3.
Charles S. Rhyne: No. It's in 107, Mr. Justice Black.
Hugo L. Black: 107. Thank you.
Charles S. Rhyne: If you look at page 15 and 16 of the record you'll see the wage rates set forth there that are required to be paid under this contract in American dollars. Now, he really believed that the issue before this Court is frankly whether or not this Treaty that has been referred to for the international law shall govern or whether or not the National Labor Relations Act should govern. And in approaching an answer to that question, we feel that very important that we stress the regulatory scheme that exist now throughout the whole world for this flag state sovereignty that's existed for many centuries. It is to prevent turmoil and conflict. Its contained rules of practical necessity which Mr. Marden says, even our enemies adhere to. Now that is what the Board would tear down because what it says is that instead of Honduras having the exclusive power and control over Honduran flag vessels throughout the world, the National Labor Relations Act would replace that regulation whereas under international law today, Honduras has the full physical power and control over every vessel that flies its flag. Now, this juridical order that exist on the high seas today is key to the flag and the flag isn't just an empty gesture because with the flag, goes many duties and responsibilities in addition to the taxes and other things that were referred to here that the country might get. For example, this Board order would, we feel, prevent Honduras from carrying out these duties and responsibilities that go with the flag. One illustration of how important the flag is, is that it's only the flag nation which can order ships around for its own national interest. A good illustration is the order issued by the President of Honduras telling all Honduras' vessels long before this quarantine to stay out of Cuba. That is the power of the flag and it's universally recognized and followed. And I think we have to also keep in mind in connection with this problem that all international law rules are really two-way streets. Everything that we can do to Honduras here and Honduran crewmen as -- was pointed out by Mr. Marden, they can do to us and I think one other fact that I should call to the Court's attention is set forth in the brief of the Republic of Honduras here and that is its entire merchant fleet consists of 22 vessels. The 13 vessels here are therefore more than one-half its entire merchant fleet. So the impact on the Republic of Honduras is not inconsiderable. So this regulatory scheme that exist now and what we would tear down if the National Labor Relations Board order is allowed to go into effect, is one that is not only universally adhered to but -- and workable but it comes into conflict with this election order rather quickly because the conduct of this election in foreign ports, ports of Honduras or any other place where these ships might be by a mail or anything else is a flagrant violation of Honduran authority under international law. And the Honduran government has filed its protest here. You'll find in the record the very concisely stated protest of the ambassador. He protested through the diplomatic channels which are referred to by the Solicitor General. But we have not only the problem of clash of sovereignties on the open seas and imports throughout the whole world. For example, if this Board order is upheld and some of these ships go into the harbor in London, who will the London authorities look to, the United States of America or Honduras? They fly in with a Honduran flag yet you have this Labor Relations Act that might have something to do with some instance that might occur there. Because the nations of the world look to the flag state, if a ship cuts an international cable or anything like that, the protest always go to the flag state. So this flag is not an empty gesture. The country that grants the use of its flag accepts rather grave and important responsibilities. Now there's been a reference here to comity. I think that while it's true that within the territorial waters of the United States, we have under this comity practice never interfered in the internal management affairs of vessels flying foreign flags that this Treaty that is referred to which recognizes our flag and the flag of Honduras is conclusive within the territorial waters of each nation really makes the international law rule that applies on the open seas, applied within the territorial waters of each nation so it makes this rule universal. And I think it's rather interesting that while so many nations throughout the whole world have adopted new labor code within the last 15, 20, or 30 years, not a single nation has ever before asserted that its Labor Relations Act applies on board a foreign flag vessel in its own territorial waters, although it applies that labor code to its own ships within it's own territorial waters very naturally. So -- and certain it is that no court has ever upheld any such assertion because other than in Canada, it's probably the only place that has even been raised. Now, we come to the National Labor Relations Act. A lot has been set about it, but I wanted to stress just one point. And that is from the days of Chief Justice Marshall, that has been referred to until now. There's been a universal, uniform rule that unless there is an expressly -- expressed intention to apply a domestic statute of general terms internationally, it will not be so applied as Mr. Justice Clark said in Benz, it requires an affirmative intent clearly expressed. Now Congress legislated here undoubtedly with that in mind, and there's a quotation in the brief of Empresa over on page 24 and 25 from a decision by Chief Justice Marshall in the exchange -- Schooner case where he said that to apply one of these domestic statutes internationally would be a breach of faith with the -- our nation throughout the civilized world. Well, I think it would almost be a breach of faith with Congress in having acted on one rule, a rule that has been universally enunciated and adhered to by this Court to how it changed now under these circumstances because it undoubted -- it relied upon that rule in treating the very statute that's before this Court now. And I come then to the so-called contacts theory. I believe the Solicitor General uses the term interest and the Board uses the term contacts, and they both defined it differently. And I would agree empathetically with what Mr. Marden have said that the law of the flag should govern because the contacts theory is not a rule of law that we can establish internationally at least but unilaterally. As I've said before the -- a rule of international law is a two-way street. And this contacts theory disturbs also because what we're saying in effect that we'll add up the contacts and that we think the contacts are great enough, will nullify international law. Now such a self-assessing, self-determination of our own self-interest in deciding whether or not to abide by rules of international law, I submit, is a rather shocking thing. This self-judging disturbs greatly because we have another instance in international law where we have self-judging involved, that we have the so-called county reservation. We decide whether or not in our own self-interest, we're going to let a case be decided by the world court. Now if we're going to say that in our self-interest, every time that we add up the contacts with the United States of America or in some certain way that judging those facts ourselves, we are going to -- either let international law apply or not. We will in effect have injected another type of self-judging reservation for which there certainly is no precedent in law or experience to tear down and wipe out this international law rule which is so universally adhered to throughout the whole world. And --
Potter Stewart: Do you understand Judge Friendly's opinion in the Second Circuit to have -- been based upon this contacts or interest, contacts primarily or not?
Charles S. Rhyne: Mr. Justice Stewart, I would say that I do not quite understand that he places the entire emphasis upon it. It's true that my distinguished adversaries and others have referred to it as a contacts decision. I would say that if it is so interpreted, I believe that it's based on a wrong principle. I agree with Mr. Marden that the law of the flag should govern here and not some new theory based upon rather nebulous criteria with the Board stating one group of criteria and the Solicitor General stating still another and then the Board coming before this Court and saying to you, “We disagree with the way that Judge Friendly added up the contacts. We think he was wrong”. It means just this to a small union like the one I represent would be here once under the law of the flag will be here many times under the contacts theory. It just comes down to that practical application. Now the --
Hugo L. Black: Do you say we have to adopt one of the two or the theory in order to determine what the -- what's the scope of the National Labor Relations Act?
Charles S. Rhyne: Mr. Justice Black, I think that you can interpret the National Labor Relations Act as not reaching foreign flag crewmen and that ends the case, in other words, reaffirm Benz. So, one thing that really -- that serves me about the fourth category of the Solicitor General is this. He doesn't explain what is going to happen about the dual sovereignty under those circumstances. He does a very effective job in his argument in his brief in saying that you just can't have two jurisdictions or two government exercising jurisdiction on a single vessel. But yet, he seems to leave this open, this dual sovereignty thing which he really can't answer, I agree with him in that fourth category which I feel really is not much different from the other categories. Now a lot has been said here about the fact that the vital interests of the United States require this or require that. It seems to me and I agree with Mr. Manoli, you ought to tell the Board whether they stay in or stay out because look at the tremendous interest of these foreign governments as shown not only by the briefs filed here but by the protest which the Solicitor General mentioned that come through diplomatic channels. Literally, the eyes of the seafaring nations of the world are upon this Court, are you going to abide by the law of flag state sovereignty? Are you going to break it down? Are you going to try to state a new exception to the rule of flag state sovereignty? And I urge very strenuously upon the Court that the real United States interest here is not entirely in the commercial field. The real United States interest in this case, I submit, is building up not tearing down international law. And I think that this can lead to just one conclusion and that would be a reaffirmance of the law of flag state sovereignty. And so, I urge that the Court in affirming -- affirm on the basis of the District Court's decision of Judge Holtzoff and reaffirm the rule that this Court has said so many times of flag state sovereignty and help to build up and maintain this system of world law that we're all working for. It hasn't been very long time less than two years when I sat across here, a couple of blocks and I've heard the President of the United States in a very dramatic and noble address say that the ultimate objective of the United States of America is a new world of law where the strong or just and the weak secured and the peace preserved forever. It seems that this Court has a rare opportunity to -- in this case, in reaffirming the law of flag state sovereignty to say to the whole world that we're interested in building up not tearing down rules of international law to which the nations of the whole world and ourselves up to now have been affirmatively and completely committed. And so we ask that the decision of the District Court be reaffirmed.
Earl Warren: Mr. Cooper, I think you have a few minutes left if you want to --
Herman E. Cooper: (Inaudible)
Earl Warren: Very well.


Earl Warren: Number 22, Morris Steiner, Harry Lightman, Mitchell Magid et al., versus James P. Mitchell, Secretary of Labor.
Cecil Sims: May it please the --
Earl Warren: Mr. Sims.
Cecil Sims: -- Court. This case arises under the Fair Labor Standards Act of 1938 more frequently referred to as the Wage and Hour Act. The particular question involves the interpretation of an amendment to the Wage and Hour Act passed in 1947, known as the Portal-to-Portal Amendment to the Wage and Hour Act. And the question presented involved in the case and under the facts of the case involves the interpretation of Section 4, subsections (1) (2) of the Act in question and stated in the terms of the cases et cetera. The question is, whether or not, under the Portal-to-Portal Act, the amendment, the time used by the petitioner's employees had its battery manufacturing claim in changing their street clothes into work clothes before punching at the clock at 7:30. And the time after they had finished their day's work and punched out the clock. And then went back and removed their clothes in which they were working and took shower baths. About 30 minutes a day, 10 minutes in the first operation and about 20 minutes in the other, whether or not, that is compensable time.Under the amendment of 1947, the language of which generally speaking provided that -- that it there should not be included in compensable time. The time spent in certain 'preliminary' and 'postliminary' activities before going to work and after coming from the work, in the absence of a custom or a practice at the petitioners' establishment or any absence of a written contract making those particular activities compensatory.
Earl Warren: How much time did you say was involved in these two activities?
Cecil Sims: On each day, there's about 10 minutes at the beginning and change when the employee comes in and takes off their clothes and puts on some work clothes. That's about 10 minutes. That's about 20 minutes when he gets off and finishes his work manufacturing the batteries. And goes in and removes the work clothing and takes a shower bath and gets his street clothing out of his locker and go and -- and leaves the premise, about 30 minutes. The case, if the Court please, arose by the Secretary of Labor filing a suit in the Federal District Court at Nashville, seeking an injunction. Because, under the admitted facts of this case, there was no record kept of that particular time of changing clothes or taking a shower bath. Nor was there any effort to compensate for that time that was consumed on the premises by the petitioners' employees.
Speaker: Was the change of clothes or the shower bath a safety precaution or health precaution was the requirement of the job and of the work.
Cecil Sims: Well that, of course, in -- in a sense, it is advisable for a number of reasons as to whether it is a requirement. In other words, whether you could make batteries in your street clothes and leave without taking a shower bath. Of course, you could, but there is no dispute and we -- we concede in the argument here. That it was medically advisable for the employee to change clothes and not work in his street clothes for a number of reasons. In the first place, there were acids used in the manufacture of batteries which could have destroyed it and he had a question of economy or which might have been to some extent injurious to his health if he continued to wear the same clothes on which he got acids. The --
Speaker: Were the -- were the employees instructed to -- to change their clothes that way?
Cecil Sims: They were not required. We have a stipulation, if the Court please. Perhaps, I'd better get right to the stipulation that includes the basic facts. As a matter of fact, the petitioner has two businesses and next door to this battery manufacturing plant, the petitioner owns a salvage business and runs a laundry. And the petitioner permitted the employees to use old clothes that he had acquired in the salvage business which had been laundered free rather than using their street clothes. And they -- no charge was made for it. And they did use the clothing of no particular type. It was not a special clothing required in the process of manufacturing. The basic facts --
Harold Burton: What -- were all the clothes furnished by the employer?
Cecil Sims: No, if Your Honor please. I'm trying to say within the stipulation that I -- I believe if I read just one or two sections from, I -- I won't violate the -- there's no dispute about any basic fact. We differ only as to what should be the conclusion drawn from the language of the statute. And that's a question the Court will have to determine. It is stipulated and Your Honors we'll find it on -- in the record. Defendants, that's the petitioner here, have never issued any order nor do they make any requirement requiring their plant employees to use the clothes-changing and showering facilities which they make available. That answers, I believe, one of the questions. Most of the employees do regularly change from their street clothes to work clothes before reporting to their work in the morning and most of them do, regular, take a shower in defendant's shower room and change back into the street clothing after leaving their working places in the evening. That has reference to the fact it was part of the work where they work. Now, the stipulations also provides, however, some employees do not follow this procedure. And it stipulated these defendants make no requirement of any kind as to the type of clothes, and which are to be worn by their employees during work hours. And the clothes or type of clothes which are worn by the employees is entirely optional with the employees. Now, the most and perhaps the most important part of the entire stipulation is the sentence that I will read next. In those instances where special equipment is required such as respirators, gloves, and so forth, defendants employees are paid for the time taken in putting on such special equipment and in removing the same. This, however, is done during the work shift and as a practical matter involves very little time.
Hugo L. Black: What page is that?
Cecil Sims: That stipulation is at -- in the record at page 9 (a) to and -- and 10.
Hugo L. Black: Thank you.
Cecil Sims: In other words, if the Court please, where in the process of manufacturing batteries, a man must wear a respirator in order to keep fumes form hazards and lead fumes being inhaled and -- and injuring him personally. It stipulated that, that type of special equipment is put on after the employee punches the clock. It's -- the only problem we have in the case is the time before 7:30 when the man comes in after his breakfast at home and takes off his street clothes and go to his locker, picks any kind of clothes he wants, there's no particular time required, and puts them on. And then reports to his station of duty and begins to manufacture batteries, whatever his type of work is.
Earl Warren: Well, Mr. Sims I thought there was also in this case the -- the question of the requirement by the State of insurance and the fact that the employer could not obtain any insurance unless he did require the employees to shower and change their clothes afterwards. Now, is that --
Cecil Sims: That -- that is a fact.
Earl Warren: Well, isn't it an important one?
Cecil Sims: Oh, yes. It's an important -- I don't think it's important in the ultimate construction of the statute. It is true, if the Court please.
Earl Warren: It is as to whether it's a part of the work or whether it's required. Isn't it?
Cecil Sims: Yes. It of course, has a direct relationship to the work. There's no problem about that. The question is whether it is preliminary in character or whether it becomes a part of the principal activities simply because it is a health requirement. Now, I've been speaking of health requirements. The Chief Justice is correct in the saying that the record shows, that under the law of Tennessee, employers of this nature must maintain shower baths. That's statutory and that's required for the convenience and use of its --
Earl Warren: Yes.
Cecil Sims: -- employees. It is also true that under the Tennessee Workmen's Compensation Act, lead poisoning, is a -- is an occupational disease which would be compensable. And, of course, there is a mutual benefit, no question about that, derived from body cleanliness and from the precautions that are -- were required in order to prevent health hazards. That we readily concede in the case. That we -- we certainly don't argue in this case that there's no reasonable connection between taking the bath. That there is no connection whatever. There is a connection. But the question is whether or not, when a man takes a bath to remove particles of lead that might have adhered to his body, which might prove a health hazard if it got into an open sore. Whether or not, he takes a bath after he's left his place of work for that reason, it becomes an integral part of his work as distinguished from a coal miner who comes out of the coal and takes a bath to get clean or for hygienic reasons. Now, the Government concedes that a person who takes a bath to get clean or to get grease or to get coal or dust (Inaudible) is engaging in a 'postliminary' activity, even though he'd got the coal dust on him down in the mines. Now, then if there's something else on him that he washed off at the same time with the coal dust that have a health hazard to it, the Government's position is that that makes that so essentially and integrally connected with mining coal that it becomes a part of mining coal.
Earl Warren: Well, is there any obligation on the part of the company to carry insurance against that hazard?
Cecil Sims: Oh, no. The -- the --
Earl Warren: (Voice Overlap) --
Cecil Sims: -- insurance is just for requirement. The -- the insurance referred to in the record is this. In Tennessee, occupational diseases are compensable under the Workmen's Compensation Act.
Earl Warren: Yes.
Cecil Sims: You don't have to carry insurance if you are financially responsible though you may ensure of that --
Earl Warren: I see.
Cecil Sims: -- risk. And I -- I think that we should concede that if we urged our employees not to take a bath, that they would be, perhaps, exposed to some type of health hazards. And in due course of time, it might infect our insurance claims under the Workmen's Compensation. But that is the --
Earl Warren: Yes.
Cecil Sims: -- relationship. Now, if the Court please. The -- it's important that I get before the Court, as quickly as possible, the exact language of the statute that we are contending about. Because after all, what we are concerned is, is what is law. And not what the law should be. Not whether it would be reasonable to make a distinction as a legislative matter, but whether or not, Congress has made that distinction. So, I will come quickly to the language about which we disagree. The Portal-to-Portal Amendment, which was passed in 1947, provides, explicitly, and it's in the appendix of our brief, at pages 84 and 85. And that's what I'm reading from at the moment. That provides explicitly that except for certain exceptions, not important here, "no employee shall be subjected to any liability, on account of the failure of an employer, to pay the employee wages or to keep records." And now I'm quoting, "for or on account of any of the following activities of such employee engaged in on or after the effective date of this Act." Now, what are those activities for which or any of which we are not to be liable? First, walking, riding or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform. And second, activities which are preliminary to or postliminary to, said principle activity or activities which occur either prior to the time on any particular workday at which such employee commences or subsequent to the time on any particular workday at which he ceases such principal activity or activities. Now, that's in the absence of an express contract to the contrary. And there's no dispute about that. We have no such contract. And it's in the absence of any custom or practice and there is no such custom or practices. Now, the Court of Appeals for the Sixth Circuit held against us and the exact basis of the adverse decision by the Court of Appeals is expressed in one sentence as follows. The changing of clothes and taking of shower baths at that time and in the manner herein described are regular practices which are recognized as essential safeguards against the serious occupational hazards to which appellants employees are daily subjected in the performance of their duties, is sufficient to render them an integral and indispensable part of the principal activities which they are employed to perform, within the meaning of the Portal-to-Portal Act. And time spent in such activities is time worked within the meaning of the Fair Labor Standards Act. Now, that is specifically what we disagree with in the case. And our insistence, if the Court please, specifically in the language of the admitted and conceded facts of the case is this. There are two types of activity which an employee engages in under the Act. They're both related, of course. The one's connected with the other. The first is the principal activity. And that's the work for which the employee was hired. That's when he begins whatever his part in the actual manufacturing process is, the manufacturing of batteries. That's between 7:30 in the morning and 4 o'clock in the afternoon. Now, it is our insistence that changing your clothes, in order to engage in the principal activity, is clearly under the language of the Portal-to-Portal Act, a preliminary activity, and removing work clothes and taking a shower bath, after you have finished your principal activity of manufacturing batteries is clearly a postliminary activity. And it doesn't make any difference in the essential character of that particular act, as between whether there's a principal activity or preliminary or postliminary activity, whether you are induced to engage in that ancillary act for hygiene reasons -- hygienic reasons or for health reasons. And that's the reason I answered the Chief Justice a moment ago. That while it is true, that here, we have a health case, nevertheless, the reason for it, about which there's no dispute, does not rub it of its essential character of being postliminary and preliminary. Now, --
Speaker: Stating that in another way, it means that your position is that nothing that happens except during the -- after the whistle blows and before the whistle blows the other end is covered.
Cecil Sims: Not -- not quite said. Essentially that but if suppose the employer, would under the guise of, letting him do something like oiling the machinery or something of that sort, case of subterfuge. We don't contend that there can't be a case when the activity itself is -- is called in -- in terms that are not applicable to the substance. But here we have a bonafide, thet everyday act of changing in work clothes and everyday act of taking a bath after they get through. And they concede in their brief that if a man is washing to get off grease, washing to get off dirt, is preliminary and postliminary. But if he's doing it to get off particles of lead which might sometimes infect him, then it has a different connection. And, of course, we say that that's a different motive, a proper motive but it's the same act and certainly, if the Court please, taking a bath does not become a part of the principal activity of manufacturing batteries. One is a manual process of doing something. The other is getting yourself clean because you don't want to catch up occupational disease. Now, the Court please. We resort to the primary root. What is the simple meaning of the words "preliminary" and "postliminary"? And since my time is slipping away, Your Honor, of course, knows that this Portal-to-Portal Act was passed following three decisions of this Court, Tennessee Coal against Muscoda in 321. Jewell Ridge against the Local in 325 and Anderson against Mt. Clemens Pottery Co. Now in -- in -- this Court decided those three cases. And they involved taking shower baths. And they involved changing clothes. And in -- in a number of instances, there was direct involved taking shower baths as a health regulation. And this Court held that they were compensable apart of the -- by Mr. Justice Murphy. Thereupon Congress said, we're going to remedy that. We don't change it. And they passed what is called the Portal Act. So, we find that Congress in its declaration of its purpose, its -- its findings and declaration of policy. And we've set it out in our brief and I won't take the time to read it. We've set it out. They said that the purpose is to make these acts that the Court has just declared in these cases as a part of the work day to exclude them from the work day unless they are included by the custom of the -- of -- of the business or the trade itself are brought in under a collective-bargaining contract. We have two cases. One very famous case that was pending when Congress passed the Act. It's a District Court case and it was amended so as to bring in the question of the scope of this -- this Act. It's the case of Swanson, McComb against Swanson. And I can't emphasize, too much, that it states our position exactly. It was a District Court case. It's reported in 77 federal, rose in Omaha, Nebraska. And there, if the Court please, people were engaged in the preparation of food for human consumption. And we had a federal -- and we had a state law that made it mandatory that they wear certain types of white uniforms made out of a certain material that was washed. Now, that wasn't to protect the health of the employee but it was to prevent the food from being contaminated which is a half step closer to the actual principal activity for which a man was employed. And they were furnished and the wearing of the uniforms were required. And there was a federal inspector that would not let them go to work until he inspected them to see they had that on. The question came up just as it did in this case. And at the expense of using a little time because this is the position on which we rely. The District Judge held in that case, no appeal was taken, and that case remained the law until this case as we see it. Now, defining antecedent.Now, the defining antecedent of the phrase said the Court, Judge Delehant. The defining antecedent of the phrase “principal activity” or activities is Section 254 (a) (2) -- in Section 254 (a) (2) appears in 254 (a) (1), in the language, quoting from the statute, "The principal activity or activities which such employee is employed to perform." Those words are not abstruse, obscure, or uncertain. They refer to the productive work in behalf of the employer which he has or working to do. That's the principal activity. For the machinist, it is the work that has been so laid, for the store clerk, the sale of goods. For the carpenter, to labor in the erection or repair of the building. And as we say, for the battery manufacturer, the manufacture of batteries for automobiles. Now, when the Court in the Swanson case came to what is meant by 'postliminary' and "preliminary' they said, the Court said this, "preliminary" and "postliminary" are not words of dubious or recondite, or confusing significance even if the latter is not frequently employed. And there they held that even though the putting on of certain uniform was required under the federal inspection, even though they had the direct relationship of preventing contamination of the food that they were going to manufacture, they were nevertheless, were not principal activities. The Congress, had legislated on the basis of principal activities and postliminary and preliminary activities without making any distinction of why a man took a bath. Whether it was for reasons of health or whether it was merely to get cleaned. Now, just a few months ago, the Eighth Circuit had the same case. (Inaudible) case, that's the best I can do on it. Decided April 29th, 1955 by the Eighth Circuit. And they had exactly the same question because there, the men were working in a powder plant and they got these nitroglycerin and powder and things like that all over. And there, they were required by the -- by the operator. Both as a matter of safety and as a matter of health to change their clothes and take a bath, exactly the same situation we have here. The Court of Appeals for the Eighth Circuit pointed out and I'm quoting, “They were required to take a shower as a safety measure for the employee's own health, to avoid after effects of powder remaining on the person of the employee." Now here's what the Court said. They said, “We're not concerned with the reason that impels a man to take a bath, nor was Congress concerned." They said if it's postliminary or preliminary, of course, it has to have. A man wouldn't do something that had no relationship to -- to his work normally. But the Eighth Circuit said this, "If the time principal activity was intended to include ipso facto activities -- activity necessarily incident to the principal activity, there would be no possibility of applying the 1949 amendment of the Fair Labor Standards Act and the application of Section 254 (a) (1) prohibiting the inclusion of necessarily preliminary and postliminary activities in compensable time for principal activities unless so recognized by contract, a custom would likewise be circumscribed. And the Court concluded in this language. We must conclude that the necessity of an activity to the performance of the principal activity will not alone make the former a part of principal activities. So we say, in the first instance, if the Court please. Taking the simple, ordinary, meaning of the English language. Whether this Court or whether the Department of Labor would have gone further and legislated that if a man's taking a bath because it's a health hazard, that's he is trying to eliminate, he should be paid irrespective that Congress has not made that distinction. Now, the secondary rules of interpretation of statutes, the legislative history, we think, bears us out. We have set it out in our brief. The Government has it in -- in their brief. And we're not contending that you could by trick or artifice put over into the category of preliminary and postliminary, something that was really a part of the work itself. We're not contending that. Of course, no one would make that. But we say in conclusion, that the distinction must be made on the basis that Congress obviously intended it to be made. What is a man's principal activity? Manufacturing the batteries. Was this postliminary and preliminary, changing clothes and taking a bath? Certainly. Why did he do it? He wanted to protect his health. But, why he did it, doesn't rob it of its character of preliminary and postliminary, in the legislative sense in which the Portal -- the Portal amendment was adopted. Bathing is not any part of the principal activity. Certainly, it's not an integral part of manufacturing batteries. Now, if a man was a deep sea diver, or sponge fisherman, or something like that, and he had put on his helmet and so on, there'd be no problem. From there, then we would have a quite different situation.
Earl Warren: Mr. Sims what -- the case you referred to, in that packing plant, you said that was in 77?
Cecil Sims: 77 is a case from Omaha --
Earl Warren: Omaha.
Cecil Sims: This is Swanson case.
Earl Warren: Well, I couldn't understand whether that was decided before or after --
Cecil Sims: That case -- after -- after this Court had decided the Muscoda case --
Earl Warren: Yes.
Cecil Sims: -- there were myriads of decisions. I mean of lawsuits that were brought, that would have just wrecked the whole industry. And that was the reason for the Portal-to-Portal Act.
Earl Warren: Well, what -- what --
Cecil Sims: That case was brought after the Muscoda decision by this Court and before the passage of the Portal-to-Portal Act. But it was not tried until long after the passage of the Portal-to-Portal Act. And they amended the -- the --
Tom C. Clark: It was tried under that Act.
Cecil Sims: It was tried so as include claims that had accrued before the passage of the Act and claims that have had approved afterwards. And the decision is clear on both points.
Earl Warren: Ms. Margolin.
Bessie Margolin: May it please the Court. Since this case and the case, to be obvious, following this Mitchell versus King Packing, raised the same legal questions, it may be helpful if I take the time to show just what the legal position of the Government is in both of these cases. And to point out -- to point out the basic difference in the legal approach between the Sixth Circuit in this case and the Ninth Circuit in the King Packing case. Our position is that Section 4 of the Portal Act, which counsel, Mr. Sims, has read you, although, I don't think he emphasized the key words, "principal activities" to the extent that we feel is warranted. And that is the Section which is at issue in this case is , is markedly different from Section 2. Now, there has been a tendency in the Court to confuse these two Sections and not to recognize the marked difference. It has worked both ways. Some of the courts have gone so far as to hold principal activities is covered under Section 2. And we don't contend that principal activities, which we define and we think the legislative history supports us as activities which are an integral part of and indispensable to the employee's job, whether performed during the scheduled workday or before or after the scheduled workday. There was principal activities under Section 4 were preserved by the Act. And Congress was very careful, although, I gave a very drastic remedy for existing claims at the time it enacted -- enacted the Portal Act, because of the -- of the flood of litigation that developed following the Mt. Clemens case. Congress did because of it, what it deemed an emergency, gave a drastic remedy and made non-compensable all claims prior to the enactment of the Act. It was very careful, however, in drawing Section 4 of the Act. And that Section went through several drafts.It was formulated in the Senate and went through several versions in the Senate. And that section was carefully drafted as the language on the face of the -- builds, shows in the face of the statute. And as the legislative history makes clear beyond doubt, it was carefully drafted so as to preserve the -- just the type of activity which is involved here and in the King Packing case.
Felix Frankfurter: Will -- will you read the -- just reading the said section does not - (Inaudible)
Bessie Margolin: The sections are quoted in the appendix to the Government's brief in -- in the King Packing case that's number 39. Both sections are quoted there and they're also quoted in their brief in the (Inaudible) case --
Felix Frankfurter: Now, would you be good enough through. Now, what is your claim that the section is clear that the Government position is stating by what Congress is a --
Bessie Margolin: No, it's about (Inaudible) I'll state first what the -- what the difference in the Sixth Circuit and the Ninth Circuit position is. And I think that will clarify what our position is. The Sixth Circuit in the instant case, took the position that any activity which was an integral part of and indispensable to the performance of the employee's principal activity was a part of that principal activity and was not preliminary or postliminary within the meaning of the -- of the exclusion in Section 4 of the Portal Act. The Ninth Circuit took the position that no matter how necessary, how indispensable or how integral a part of the principal activity, the knife sharpening time it was in that case was the fact that it was performed outside or before or after the scheduled work shift on the production line. That fact was the decisive consideration. And it didn't matter how integral it was. Now, that, as I understand it, is Mr. Sims' position. The Government's position is as the Sixth Circuit has held that a principal activity of it the decisive fact here by no means when it is performed, the time that which this is performed that a principal activity may occur prior to or after the scheduled workday. And the question is --
Felix Frankfurter: The scheduled workday as raised in the statute?
Bessie Margolin: No, the scheduled workday is not in the statute. And I'm coming to that point because I -- we think the legislative history demonstrates. It was deliberately -- the Congress deliberately refrained from using scheduled workday or contract workday or whistle to whistle all of which terms, the legislative history shows that they were quite familiar with. But they deliberately refrained, for good reasons, from using those terms. The statute uses and I'll come to the language there. The statute does not -- does not say that there shall be no liability. Does not say there should be no liability for work or activities which are preliminary or postliminary to the scheduled workday or to whistle to whistle or to the -- the contract work week. It say's that they're -- it uses the term activities which are preliminary to or postliminary to said principal activity or activities.
Felix Frankfurter: Where are you reading from?
Bessie Margolin: I'm reading from the Section --
Felix Frankfurter: Page 36
Bessie Margolin: Page 36 of the King Packing brief. That's the Section 4 I'm reading from. These two briefs we -- we rather consolidate it so the terms that don't appear in -- in -- fall in the King -- in the summary brief, I'm afraid. But they are on page 36 of the King Packing brief. The section starts on page 35 which says "No employer shall be subject to any liability on account of failure of such employee to pay an employee et cetera, on or after the date of enactment of the Act, for walking, one is walking, riding or traveling to and from the actual place of performance of the principal activity or activities, which the employee as employee performs." In other words, they specify walking, riding, or travelling and --
Felix Frankfurter: They're out of this.
Bessie Margolin: They're out. They're specifically out, and two with the activities which are preliminary to or postliminary to said principal activity or activities. Now, that obviously means something more than they -- and concededly mean something more than walking, riding or travelling.And the question is, how much more?
Felix Frankfurter: Well what, not how much. It's what.
Bessie Margolin: What, yes. What -- what in addition to that? We think the legislative history supports this and that, and I will come back to the statutory language and show -- try to take the time to show the Court the differences in the bill, the successive bills. That what is meant by the preliminary and postliminary are simply incidental activities of the same nature of walking riding and travelling, such as checking in and checking out, waiting in line for paycheck, clothes changing, admittedly, in most instances where it's purely for the convenience of the employee. That type of activity which is likely to be incidental to almost any kind of employment.
Felix Frankfurter: You mean he comes in and then I speak for (Inaudible)
Bessie Margolin: That's right. He puts on overall because he wants to save his clothes and not for any -- not because of the specific type of work he is doing requires, that he change his clothes as in the instant case.
Felix Frankfurter: Suppose it does? Suppose that the clothes at that time was required to sit down and (Inaudible)
Bessie Margolin: Well, if -- that would be, that would be --
Felix Frankfurter: I'll go ahead.
Bessie Margolin: -- principal. That would be principal activity and not preliminary.
Speaker: A Justice, here, putting on a mask.
Bessie Margolin: Well, Justice here putting on his clothes and taking a shower --
Speaker: No, I mean the mask would certainly be a part of --
Bessie Margolin: Oh, the mask is certainly a part. That is, this is not something that would be just incidental to almost -- to the ordinary employment. This is something that's directly required by the specific kind of work the employee is performing. And we say that, that in that case, the two courts below were certainly correct in finding that that is an integral part of this particular kind of work in a chemical battery plant.
Speaker: Well, now, am I wrong in understanding that the -- by stipulation you said that only a part of the employees did this?
Bessie Margolin: Yes.I want to call attention to that. There was -- it was stipulated and I think a little loosely, frankly, that the stipulation appears in the record on page – this is on -- this section of it is on page 10 (a). Defendants have never issued any order nor do they make any requirement requiring their plant employees to use the clothes-changing and showering facilities they make available.Now, that stipulation was called to the attention of both courts below, of course. And they viewed it as simply as stipulation that there was no formal order issued, no formal requirement made. And I refer the Court to the -- on the question of requirement to say that it's a practical matter in the industrial reality that was required. Certainly as -- as a health protection and hygienic -- this was the usual hygienic measure required by the nature of the work, and Finding 8 -- Findings 8 and 12 of the District Court shows what the -- how the Court treated that stipulation, which as I say, is rather this, we phrased but really doesn't answer the whole question of – of what is required in the -- in a legal sense.
Felix Frankfurter: Ms. Margolin, merely this is a fair analysis and this is my (Inaudible) suppose I had nothing but my knowledge of the Mt. Clemens case stated in your court and none of the statute, and know that if there is this at all and that's the argument of course.Suppose I didn't have the statute?
Bessie Margolin: Well, I'm thinking --
Felix Frankfurter: (Voice Overlap) -- that it's going to make up the distinction as you're making?
Bessie Margolin: I think even on the face of the statute, you could.
Felix Frankfurter: How do you explain that?
Bessie Margolin: The --
Felix Frankfurter: (Inaudible)
Bessie Margolin: Yes, to principal activities still you have the question of what is principal activity. The Mt. Clemens --
Felix Frankfurter: Well, I suppose (Inaudible) if you're butcher, it's butchering and if you're a miner, it's mining and if you're in a chemical shop it's through your work of the chemical employer that's (Inaudible)
Bessie Margolin: Well, it might be but other things might be too. In -- in other words, the principal activity isn't that simple and any body who knows anything about the realities of -- of industry and that's what Congress -- Congress said. That you can't and anyone who knows anything about reality knows that -- that this varies from industry to industry. And they had a terrific time trying to -- they've try to find it's birthdayin one of these bills.
Felix Frankfurter: I'm not going to -- I'm not going to the legislative history --
Bessie Margolin: They said they -- they couldn't --
Felix Frankfurter: That they cleared it all out.
Bessie Margolin: Well, you don't need to know -- need to go to the legislative history.
Felix Frankfurter: But the principle --
Bessie Margolin: You just need to know something about the realities of the industry --
Felix Frankfurter: But all that reality --
Bessie Margolin: -- to know that principal activity --
Felix Frankfurter: (Voice Overlap) -- the principal activity means something in principle and other things are subordinate to or leading up to --
Bessie Margolin: That's right.
Felix Frankfurter: -- or contributing to --
Bessie Margolin: That's right.
Felix Frankfurter: -- you go to the principle.
Bessie Margolin: Well, we all -- well -- well, I don't think principal is – is quiet that simple in words.
Hugo L. Black: You don't want to have to approach this out of the dictionary.
Bessie Margolin: All right --
Felix Frankfurter: I'm not sure --
Bessie Margolin: -- if you looked in the dictionary, I think you wouldn't find it but also --
Felix Frankfurter: So, what does – what does principal mean to you?
Bessie Margolin: Principal means when there's something that is a -- so closely related and integral a part of -- of the job that I'm hired to do, that -- it couldn't -- well it's indispensable to it. And it's just a part of that specific job. And anything that --
Felix Frankfurter: Well, by following that, is there any number of statutes that you and I know in which Congress expressed that idea by relating to or affected by or all the other (Inaudible)
Bessie Margolin: Well, it --
Felix Frankfurter: If I mean only the Court was out of the dictionary. You also (Inaudible)
Bessie Margolin: Well, I think too, you can't make nonsense out the reality that the situation in that and anyone that has – that had any experience with the statutes regulating industry, knows that there's quite a question as to when an employee begins his principal activity.
Felix Frankfurter: That was (Voice Overlap) --
Bessie Margolin: When do you say he's beginning his job?And that is the subject frequently, of course, for contract. But Congress, here, didn't want to make it solely a subject for contract because they felt it would be unfair to the unorganized worker.
Felix Frankfurter: And it's also --
Bessie Margolin: Now, let me make this one point because I think it answers what you -- a much clearer, a much simpler way to get across what -- what you -- what you were in with by suggesting here. And what Mr. Sims is arguing and what the Ninth Circuit, if Congress had intended to say that anything prior to the schedule workday is preliminary. They could have said scheduled workday. They could have said whistle to whistle. But they didn't. They took a less clear, a less simple criterion.And they did it deliberately. Now, why wouldn't they --
Felix Frankfurter: You (Voice Overlap) -- prove to that. You're going to prove that by the legislative history. Out of that (Voice Overlap) --
Bessie Margolin: I'm going to prove it simply by comparing the word principal with -- this is my first way of proving it. I think the legislative history proves it conclusively.
Felix Frankfurter: All right.
Bessie Margolin: By simply comparing the word, a word with the vagueness of principal and preliminary and postliminary, vague words like that, Just compare them with what Congress could have done. It could have simply said, the contract workday, the scheduled workday, whistle to whistle. Those terms were used throughout the -- the debates they used commonly in the industry. Why didn't Congress take those words?
Felix Frankfurter: Well, I can think of several reasons why they didn't take -- they didn't take whistle to whistle. Because whistle to whistle -- this what exclude something that Congress envisaged to do it from. And yet, they didn't want to include that.
Bessie Margolin: And now, they just wouldn't because it's specifically limited to the -- to the time before and after the workday.
Felix Frankfurter: Well, here --
Bessie Margolin: And in another section, that the section goes on to say these activities and they're non-compensable only when they occur before the workday starts and before it ends. So, you still have the question of determining -- it -- it has to be not only -- and a preliminary and postliminary, but it has to be at the beginning and at the end of the workday.
Felix Frankfurter: Of course, the real trouble if you and I -- well, I would prove to you, but for myself the real trouble is that Congress here passed the test upon the Court to empower you their efforts of individual cases and having some statements to be determined.
Bessie Margolin: They had reasons. That they had reasons for doing it. They're very practical reasons.
Felix Frankfurter: But all the (Voice Overlap) --
Bessie Margolin: They -- they believed it and they deliberately did it because as Senator Donnell said in the debate, he said, “We have spent months trying to draft something that would say when a workday begins generally and when the workday ends. And he said, "We've been unable to come up with anything because there's so many numerous industries and all these different industries and the different plants, they have different terms of the principal activity on a workday begins --
Felix Frankfurter: I don't think I need to (Inaudible) my suggestion because of the thousand and one difference is I don't think it ought to be cast on to the Court, on individual judges and individual Courts of Appeal, all of the United States and Congress for a good and sufficient reason. I think I can't think of the right (Inaudible) --
Bessie Margolin: Well, but Congress --
Felix Frankfurter: (Voice Overlap) -- to judges.
Bessie Margolin: -- Congress established the basic criterion, a legal criterion. They say --
Felix Frankfurter: (Inaudible)
Bessie Margolin: They have -- they have established. I think – I think there's been a -- a really -- a very small amount of litigation on this Act compared to the -- the amount of enforcement and the -- the benefits that had -- had come about voluntarily. There's been relatively little litigation.
Felix Frankfurter: Too much (Inaudible) in this Court. That's not all.
Bessie Margolin: Except for -- except for the very -- that very special situation which had a variety of reasons for it which had -- I think are not too much related to the terms of the fact --
Harold Burton: Ms. Margolin.
Bessie Margolin: -- which resulted as the merits.
Harold Burton: After you get through determining what is the principal activity -- that is the chemical industry, don't you have a question of fact that in writing almost in each one of these (Inaudible) where activity begins and where the activities doesn't begin?
Bessie Margolin: It's true Justice Burton that this -- this is largely and to a large extent a question fact. But there are certainly situations where the facts are so clear, the facts are undisputed that the -- that the legal conclusion -- it is simply a legal conclusion as to whether it's an integral part of the job.
Harold Burton: Well, here you've had a district judge and the three Court of Appeals judges determining that this was within, not only principal but within activity.
Bessie Margolin: Well, there is -- there is the finding of both courts below here that this was a principal activity. The facts -- the basic facts are undisputed here.It's just a question of drawing the inference of the conclusion from those facts. And that is done by applying the principal, is it an integral and indispensable part of the -- of the workman's job or his principal activity? Now, I grant you that that is not something that's ABC, a simple decision to make. But it's no different than many -- many questions of statutory interpretation, as to the application of a -- of the legal criterion of the statute.
Felix Frankfurter: And it would not have been difficult to put your words into the statute.
Bessie Margolin: What work -- workday or whistle to whistle?
Felix Frankfurter: No, no. Just what you've said?
Bessie Margolin: Well, it --
Felix Frankfurter: Just what you've said.
Bessie Margolin: When you try to get far and you're -- many times said to me that your -- that the Court should leave the questions for Congress, certainly not for the Court. But after all Congress has 400 to 500 people that they have to get into agreement on -- on language. And the Court has just none. And --
Felix Frankfurter: But it has --
Hugo L. Black: That's -- that's enough.
Bessie Margolin: Which is enough -- [Laughter]
Felix Frankfurter: But it has no more (Inaudible) that we call it the events of Congress.
Bessie Margolin: Well, I'm sure, Mr. Justice Frankfurter I don't need to tell you that language is not something that -- that is easy to make clear.
Felix Frankfurter: But that is also (Inaudible)
Bessie Margolin: Well, we don't think they went on to this. And we think that if the Court will read the legislative history --
Felix Frankfurter: All right, I'm with you on that.
Bessie Margolin: -- they will greatly sympathize --
Felix Frankfurter: I am with you on that.
Bessie Margolin: -- the Court will greatly sympathize with the problem that --
Harold Burton: But after you get through your legislative history --
Speaker: It has the --
Harold Burton: -- the administrator ever -- to check to define these regulations.
Bessie Margolin: The administrator did specifically state that clothes changing in his -- and not in his regulations and interpretation because he has no authority. He had to issue regulations. But in his interpretative bulletin, he did say -- state that clothes changing in -- in -- where it's required by the hazards of the job such as in a chemical plant, and is a principal and not preliminary activity. And that by the way, that interpretation was before Congress in -- when it enacted the 1949 amendment. And I'll come to that and show that while Congress made -- pass Section 3 (o) in 1949, to permit the contract, excluding such time from -- on the collective bargaining agreement, that they didn't otherwise change that interpretation although, they knew about it. It was called specifically to their attention. And although they knew about it, they didn't change it, except to say that the parties might, by collective bargaining agreement, exclude it. That would be done, of course, and the give and take of collective bargaining agreement. But they -- they did not go so far as to say that -- that it could be excluded if they were no collective bargaining agreements. Now, to get to the specific legislative history applicable to this particular point which, Mr. Sims, didn't mention and it's so directly in point, And I don't think I should finish this argument without calling attention to it. The -- Senator Cooper who made the -- who was selected to make the detailed explanation of this bill on the senate floor, he was a member of the three-man judiciary committee that drafted it, held hearings on it, and presented it on the floor. He was -- he described the -- these principal activities as the key word for the statute. And -- and he was asked specifically by Senator McGrath.
Speaker: Where is this, Ms. Margolin?
Bessie Margolin: This appears in -- this is quoted at some length in our brief.
Hugo L. Black: Page 16 on number 39.
Bessie Margolin: Page -- page 16 of our brief in (Inaudible) case. I think it starts on page 13. Senator McGrath specifically asked, inquired to Senator Cooper about the workers in chemical plants who are required to put on special clothing and take off their clothing at the end of the workday. And in some plants, they are required to take shower baths before they leave. And Senator Cooper answered that in no uncertain terms.He said he was glad the Senator had raised that question because I believe it gives us the opportunity of drawing a fine distinction between the type of the activity which we consider compensable and the type which should not be compensable. Then he -- in accordance with our intention as to the definition of principal activity if the employer -- employee could not perform his activity without putting on certain clothes then the time used in changing into these clothes would be compensable as part of his principal activity. On the other hand, if changing clothes were merely a convenience to the employee and not directly related to a specific work, it would not be considered a part. Now, this does not, of course, precisely describe the situation we have here. But the situation we have in -- in this chemical plant is, if anything, more an integral part, makes the showering and the bathing more of an integral part. And I would like to just call attention to two facts regarding that -- this battery, wet storage battery industry. The number one cause of occupational disease is in this country, and this was undisputed testimony in this record. The number one cause of occupational disease is lead poisoning. And the number one industry that is the source of lead poisoning, is the wet storage battery industry. So, that it has become and it is generally agreed by industrial and medical experts that careful washing, changing of clothes, so that the employee doesn't use the same clothes when he leaves the plant, changing of clothes and a thorough washing of the lead and acid off of his body, mostly it's the lead, because it's only, the lead are vapors and the fumes and the dust, molten lead is the -- is the most hazardous sort of lead poisoning. The company's own doctor testified to that. That it's because of its dust that gets under fingernails and into the hair. A very careful bathing is required after the day's work is over.
Harold Burton: But why -- why look at just the Senator to complete this language. I've had great difficulty in following you there.
Bessie Margolin: Well, he told --
Harold Burton: And you told me, he could not perform his activity and here, a number of these do perform it as I understand it all the way
Bessie Margolin: Well, as -- as one employee, put it. Of course, he doesn't have to change his clothes to make batteries. But as the -- he does -- he said, “Suppose I could do, make batteries without any clothes on,” but Senator Cooper is not talking in terms of -- of whether it's --
Harold Burton: But there's certainly --
Bessie Margolin: -- it goes in ingredient --
Harold Burton: (Inaudible) He can't make without it. He can't make batteries without his mask.
Bessie Margolin: Well --
Harold Burton: He did it for that?
Bessie Margolin: He wouldn't be making batteries very long if he didn't change his clothes and shower everyday, either. The --
Hugo L. Black: I don't -- I don't see that (Voice Overlap) --
Bessie Margolin: -- he -- he can perform his work. But how long? In other words, the reality of the situation is, that -- that he couldn't be doing his work for very long unless he changed his clothes and took a shower regularly for (Inaudible)
Hugo L. Black: But I say many of them do. Aren't really some of them (Voice Overlap) --
Bessie Margolin: They or some of -- some of them do and some of them get lead poisoning if the record shows, too. They -- they're frequently told and I'm glad. We call attention to the workmen's compensation case which we saw in our brief which was against this very company. Now, this and this goes to the question as to whether the bathing is required, too. They defended in a -- in a suit for damages on the grounds that the employee was -- was guilty of contributory negligence in not following instructions to bathe carefully. That shows how close it is to the work. And there's no question. Their own doctor testified that -- that this -- this was the best method of meeting those hazards and doctor (Inaudible), the expert, testified that this was the cheapest way of meeting those hazards. Now, they have put in ventilating equipment and all other kinds of equipment. This is much less expensive than the equipment they put in. And that's why they require the bathing because this is a sure and easy and inexpensive way of meeting those hazards. But it's just as much related to the hazard as if for ventilating system. It's just as much of a legitimate an item of cost as of the ventilating system. That -- they -- it's true that one employee, I think it -- there was a single employee who said he didn't use the -- the shower because he had a wounded foot and he was afraid of an infection. And he lived very near by and so he took that risk and went nearby. But the undisputed and medical testimony is that that was not a desirable thing to do. And that they -- it shouldn't really be permitted. And here -- he apparently felt, and one of the reasons stated -- say there's no formal requirement here, that it's -- not even to discipline the worker. You can't force them to take a bath. You certainly can encourage them to -- encourage them to by -- by letting to do it on the company terms. And it certainly, there's enough evidence in this record to show that in this circumstance, this is the -- a -- a particularly strong circumstance where everything should be done to encourage them to take the -- the shower and to change their clothes. I might call the Court's attention to the findings of fact on the requirement, if time permits, to read just the Court of Appeals' opinion on 221 (a). The Court, despite of the -- the fact that there was no formal requirement, the Court said that the general requirement of bathing and clothes changing in storage battery plant is not prompted by mere desire for cleanliness or personal hygiene. In other words, it's not merely for the convenience of the employees. Those considerations apply to all industries. And time spent for such reasons is generally considered preliminary and postliminary to actual working time. But the changing and bathing required of employees in a storage battery factory is occasioned by the poisonous substances used in the manufacturing process. And if, therefore, an integral part of that process and should be considered a part of the day's work.
Earl Warren: Can you proceed with the next one now --
Bessie Margolin: I will proceed with the next case --
Earl Warren: -- Ms. Margolin?