Anderson v. Mt. Clemens Pottery Co.

• Decision Date: 14 April 1947
• Docket Number: No. 2582.,2582.
• Citation: 69 F. Supp. 710
• Parties: ANDERSON et al. v. MT. CLEMENS POTTERY CO.
• Court: U.S. District Court — Western District of Michigan

69 F. Supp. 710

ANDERSON et al. v. MT. CLEMENS POTTERY CO.

No. 2582.

District Court, E. D. Michigan, S. D.

February 8, 1947.

Writ of Certiorari Dismissed April 14, 1947.

Lee Pressman, of Washington, D. C., and Edward Lamb and Lowell Goerlich, both of Toledo, Ohio, for plaintiffs.

Frank E. Cooper, of Detroit, Mich., Bert V. Nunneley, of Mt. Clemens, Mich., and Beaumont, Smith & Harris, of Deroit, Mich., for defendant.

Frank Donner, of Washington, D. C., for CIO.

John F. Sonnett, Asst. Atty. Gen., for the United States.

Harvey M. Crow, of Washington, D. C., for National Manufacturers Ass'n.

Writ of Certiorari Dismissed April 14, 1947. See 67 S.Ct. 1191.

PICARD, District Judge.

Because of the interest and discussion that this case has stimulated, we deem it advisable to give a brief history of its developments which finally resulted in necessity for this court's present determination.

When this matter was first heard (D.C., 60 F.Supp. 146), plaintiffs were not seeking pay for time consumed walking to their jobs nor for preliminary activities necessary for production work. The only question discussed by either counsel was whether defendant company had instructed plaintiff employees to punch in 14 minutes before the scheduled starting times in the morning and afternoon and punch out 14 minutes after the scheduled quitting times at noon and afternoon. Plaintiffs insisted that they were expected to and did work during these additional periods but that this time was not computed in determining whether they were exceeding the legal workweek. If true, plaintiffs were thus being deprived of the extra half-time for pottery produced in hours over the legal week.¹

The master's report concluded that the employees had not substantiated their claims and we agreed with that report in all but one particular. We held that plaintiffs had met the test required; that they had proved that they were directed and encouraged to reach their work bench early in the morning and back after lunch, and actually produced pottery during these minutes for which time was not computed. We selected a figure of 7 minutes before the scheduled starting time in the morning and 5 minutes before the scheduled starting time following lunch for which the employers were not obligated to pay, including therein, time it took plaintiffs to walk to their respective places in defendant's plant. For the difference between those 7 and 5 minutes and the time punched we held the employer liable if such additional minutes brought the employee over the allowed workweek. We so found because we believed the men actually worked at production labor.

The Court of Appeals (6 Cir., 149 F.2d 461), following Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, held that we were bound by the master's conclusions unless "clearly erroneous" and it was sustained by the Supreme Court, 66 S.Ct. 1187, on this issue. Ordinarily this would have ended the case then and there.

In the master's report and record of the testimony, however, there was much discussion about minutes consumed walking from time clock to work bench and for "preliminary activities" but counsel for both plaintiffs and defendant used this evidence solely to support their respective positions on the only question before this court — productive overtime.

Here it is well to note that in 1943 defendant contended that it was necessary to start plaintiffs clocking in 10 to 14 minutes before starting time because of the distance the employees had to travel within defendant's plant to their work benches and because they had to perform a lot of other "preparatory" duties after "checking in." One defendant witness said it would take six minutes to walk 400 feet — a rate of less than one mile per hour.

On the other hand, and in contrast, plaintiffs, in 1943, minimized time consumed in preliminary duties such as greasing arms, putting on aprons, gloves and small cots to protect their fingers, insisting that they could and should do all these things including "walking" to the farthest point in the plant in not to exceed 2 minutes. Arriving at their work places, they contended, they usually started work immediately.

In the Court of Appeals the issue was also confined to "overtime," or time allegedly actually worked by plaintiffs in production labor before the scheduled starting hours in the morning and after lunch.

From this status the case moved to our highest tribunal and we cite plaintiffs' petition for certiorari as their understanding of what had been proven before the master, and why they were asking the Supreme Court to reverse the Court of Appeals and affirm this court:

"The evidence also revealed that it took between one minute and two minutes from the time when the employees checked through the time clock cards to the time when they undertook productive labors." (Emphasis ours)

But that petition also reveals plaintiffs contending: "that they should be paid by the time clock cards as maintained by the employer. The travel time between the time clocks and their work benches as well as all other activities after punching the time clocks bears all the indicia of work," citing Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014, and Jewell Ridge Coal Corporation v. Local, 325 U.S. 161, 164-166, 65 S.Ct. 1063, 89 L. Ed. 1534.

Here enters so-called "portal-to-portal" for the first time.

Here we find that in approaching the Supreme Court, plaintiffs start out strenuously urging that this Court's judgment eliminating "checking in and travel time" be sustained, and in the same petition ask "portal-to-portal pay."

This was followed by plaintiffs' brief to the Supreme Court which also urged the portal-to-portal theory in one part and ended by asking that Court to approve our decision wherein we eliminated "walking time."

On the other hand, defendant, while contending that "portal-to-portal" was not properly before the Supreme Court, consumed several pages in its brief denying applicability of the Tennessee and Jewell Ridge cases and citing many inferior courts on similar fact situations. But here again we find defendant emphasizing that "it took a minimum of twelve to fifteen minutes to get the workers into the plant."

It must therefore be apparent that if the portal-to-portal question is now in this case it was not injected nor inserted therein by the Supreme Court.

It's here because defendant company oversold its defense before the master four years ago in explaining why its employees reported 14 minutes before starting hours. This was quickly taken advantage of by plaintiffs in the interim between the Court of Appeals and the Supreme Court. In fact when the Supreme Court held that this Court was wrong in granting overtime for what we believed was real production labor, it found itself in the position where it must in all fairness at least inquire into the extent of walking time and preliminary activities to which defendant company was apparently admittedly subjecting its employees, and which seemingly reached the proportion of 25 to 30 minutes each day.

It was this chameleonic pattern of the factual fabric which the Supreme Court decided needed clarifying and since the master had placed upon plaintiffs the burden of showing time necessarily spent on the employer's premises in preliminary activities, it held that this was not a fair interpretation of the law, "assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute." 66 S.Ct. 1187, 1193 And "it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts."

The Supreme Court further held that

"Time spent in walking to work on the employer's premises, after the time clocks were punched, involved `physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.' * * * Work of that character must be included in the statutory workweek and compensated accordingly, regardless of contrary custom or contract."

We were therefore instructed to determine:

First, how much walking time was involved in going from the time clock to the several respective work places, and

Second, time necessarily consumed "putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools."

But the Supreme Court has given us two other mandates. The Supreme Court directed that

(a) When we had obtained this information we must, in computing damages, apply the rule of "De Minimis Non Curat Lex" (the law cares not for small things), 26 C.J.S. 705; and

(b) Apply the rule to a workweek contemplated by Sec. 7(a) Fair Labor Standards Act, 29 U.S.C.A. § 207(a), "in light of the realities of the industrial world."

There is nothing in the Supreme Court's decision to justify our including other minutes spent on the company's property, nor are we concerned with the question of whether the time spent in "preliminary activities" or "walking" are compensable. The holding of the Supreme Court in this case is that they are compensable subject to the "de minimis" rule and "in light of the realities of the industrial world." Whether certain acts are or are not "preliminary activities" however is still for us to determine.

And since we are bound by the master's finding that plaintiffs were not required to work at production labor before or after any of the scheduled starting and quitting times, the question of overtime of the genus originally before this court is not to be considered by us.

The Facts.

Since our order to the master did not contain...