Mitchell v. Southeastern Carbon Paper Company

• Decision Date: 28 June 1955
• Docket Number: No. 15411.,15411.
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. SOUTHEASTERN CARBON PAPER COMPANY, Incorporated, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 934 (1955)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. SOUTHEASTERN CARBON PAPER COMPANY, Incorporated, Appellee.

No. 15411.

United States Court of Appeals Fifth Circuit.

June 28, 1955.

Bessie Margolin, Asst. Solicitor U. S. Dept. of Labor, Stuart Rothman, Solicitor, Washington, D. C., Beverley R. Worrell, Regional Atty., Birmingham, Ala., Sylvia S. Ellison, Acting Chief of Appellate Litigation, Morton J. Marks, U. S. Dept. of Labor, Washington, D. C., for appellant.

William K. Meadow, Griffin B. Bell, Atlanta, Ga., Spalding, Sibley, Troutman & Kelley, Atlanta, Ga., of counsel for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment of the District Court denying an injunction and dismissing an action brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act of 1938, as amended by the Fair Labor Standards Amendments of 1949¹ to enjoin appellee from violating the overtime and record-keeping requirements of § 15(a) (2) and § 15(a) (5) of the Act in the employment of certain production workers, and from violating § 15(a) (1) by making interstate shipment of the goods produced by such workers.² The alleged violations were appellee's failure to pay for or record the time spent by its coating department employees in clothes-changing and bathing activities, which most of them engaged in by reason of the fact that they work with and around carbon ink.

The issue thus raised for determination by the court below was whether these activities were activities which are "preliminary to or postliminary"³ to "the principal activity or activities which such employee is employed to perform,"⁴ "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."⁵

The Government must establish, in order to prevail, that the changing from street clothes into work clothes before commencing production activities and showering or washing and changing clothes after the end of production activities for the day (where the employer and employee were in harmony on the fact that neither the workers expected to receive nor the employer expected to pay compensation for such time as a part of the principal activity of the plant) were not activities preliminary to or postliminary to "the principal activity or activities which such employees were employed to perform".

Without benefit of court decisions interpreting these words as meaning something different from their common everyday intendment, and without reference to legislative history, it would seem mere cavilling to contend that a person engaged to manufacture carbon paper in a manufacturing plant did not have as his principal activity the doing of those things which turned the ink and paper into carbon paper, and that a statute referring to activities that might engage his attention preliminary to or postliminary to his principal activity would not include the changing into such work clothes as he used and washing or bathing to remove the soil encountered while he was engaged in such principal activity after the day's productive work was over.

However, the Secretary of Labor says these particular employees get so dirty and stained and the desirability to change clothes is so great as to them that the changing and bathing or washing is not preliminary or postliminary but part of "the principal activity or activities which such employees are employed to perform". We must, therefore, put to one side our first impression that here are simple words that have plain meaning and consider the construction given them by the Secretary of Labor, because he contends in good faith that such plain and simple meaning is wrong. If he does, it is, of course, his duty to test out his theory if he deems it necessary in his administration of the law.

There is also presented an issue on this appeal arising from the application by the District Court of the provisions of § 3(o) of the Fair Labor Standards Act, 29 U.S.C.A. § 203(o). The court found that this case was controlled by an interpretation of this subsection which reads as follows:

"(o) Hours Worked. — In determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee."

The opinion of the trial court, D.C., 124 F.Supp. 525, 526, concisely stated the facts as follows:

"Defendant, a manufacturer of carbon paper, engaged in commerce and subject to this Act, had five employees in its coating department. They worked forty hours per week and were paid in excess of minimum wages required by law. In addition thereto they spent five minutes each morning after arrival on defendant\'s premises and before commencing their work, in changing into their work clothes. At the end of their regular shift, some of them would take a bath and change clothes, consuming twenty minutes time, others would leave for their homes without doing so.

"In an early stage of the case plaintiff sought the privilege of going on the premises and photographing these employees, the latter objected to being photographed, and at the Court\'s suggestion, consented to by all counsel, the Court went personally to defendant\'s plant just prior to four o\'clock p. m. on a hot July day, and observed two employees working in the coating department at their machines. Their clothes were covered with grime and dirt, their bodies with perspiration and smears of ink, and it was apparent that, for their own pleasure, pride and convenience, a bath and change of clothes was necessary. For the economic welfare of their employer such a bath and change was immaterial, there were no dangerous acids or other matters in their clothing, nor was any particular type of clothing necessary in connection with their work."

The Government adds the statement that "the soil and stain from the ink would ruin the employees' clothes, the upholstery of their automobiles, and other things with which they might come into contact. They would thus incur expenses which they could ill afford."

We think these statements adequately cover the evidentiary facts in the case, except for the statement of the trial court in his opinion, reported at 124 F.Supp. 525, at page 527, as to the terms of employment and the custom as to whether the clean-up time was compensable:

"As it appears in the instant case that the employees were not organized, that they did not have with their employer a written or express `collective-bargaining agreement applicable to the particular employee\', question arises whether time spent in changing clothes or washing is excluded. It does appear, however, that there was a custom between employer and employees that such time should not be included, the employees taking the witness stand disclaimed any such contention, it appeared that they had never claimed the same nor agreed to the same, and apparently were utterly indifferent upon the question. They seemed more amused at the entire proceedings than interested therein, and absolute peace and harmony seemed to prevail upon their relationships to the employer."

We think the question whether the time spent in changing clothes and washing up is broader than as viewed by the trial court. We do not agree that this employment was expressly exempted under § 3(o) because it did not meet the requirements there that the custom of non-payment must arise "under a bona fide collective-bargaining agreement applicable to the particular employee." To come within this exemption the conditions must exist. As pointed out in Judge Hooper's opinion, there was no collective-bargaining agreement. However, we agree with the trial judge that if the answers to this question were dependent solely on § 3(o) "there would be a clear discrimination against the organized employees and in favor of employees which sic were not organized."

We conclude that compensation for these activities is prohibited under § 4(a) (1) and (2) of the Portal to Portal Act, supra, since these are clearly "activities which are preliminary to or postliminary to said principal activity * * which such employee is employed to perform".

As stated above, this seems the clear and plain meaning of the words. But the Government contends that the activities here which might ordinarily be preliminary or postliminary to the principal activities are so necessary to enable the employees to return to their ordinary personal pursuits without inconvenience or expense that they become thereby part of the principal activity which the employees are employed to perform.

The two principal cases relied on by the parties are Steiner v. Mitchell, 6 Cir., 215 F.2d 171, asserted by the Secretary to be authority for his...