Mitchell v. King Packing Company – Oral Argument – November 16, 1955

Media for Mitchell v. King Packing Company

Audio Transcription for Oral Argument – November 17, 1955 in Mitchell v. King Packing Company

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Earl Warren:

You proceed.

Bessie Margolin:

I’ll proceed with the next case.

Earl Warren:

You can explain now Ms. Margolin.

Bessie Margolin:

This case if the Court please, involved the question of where the time spent by a knifeman in a meatpacking plant sharpening the knives that they use in their meat-cutting job is a part of a knifeman’s principal activity rather than preliminary and postliminary under Section 4, the Portal Act, and whether it’s still compensable despite the provision of the Portal Act.

The Tenth — the Ninth Circuit held that it was — there was non-compensable and was — because it was preliminary and postliminary despite its recognition that it probably and might be anyway an indispensable to the performance of their productive work.

The evidence shows indisputably and respondent doesn’t dispute that the knives must be sharpened daily in order for them to be of any practical value in the work.

As stated by one witness, they must be razor sharp and unless he had a sharp knife, he couldn’t do a good job.

I don’t believe there’s any serious question that the sharp knife is absolutely indispensable to be proper efficient or any adequate performance of the meat-cutting job.

The reason I asked earlier.

Bessie Margolin:

Some of the knives of — mainly, the knives that — theoretically, they are the employee’s knives.

He buys them, most of them from — these are the smaller knives.

He buys most of them and when I say small, I’m speaking relatively.

To me, they look quite large.

I don’t know if they sent them up in the exhibit, but they were placed in exhibits in the record, but they are relatively smaller knives and they purchased most of them at cost from the company and the company furnishes them the cost.

I think they cost around a $1.5, $1.85 a piece on an average, but that by the time the employee puts all the time into sharpening and I’m going to show you sharpening them, I can assure you he pays a lot more for those knives.

The — they also sharpen some of the company knives, although there’s no requirement that they sharpen the company knives on their own term if there is with respect to sharpening.

They’re so-called — they’re individual knives.

Earl Warren:

Do they have their choice of using their own knives or company knives?

Is that the practice?

Bessie Margolin:

No, the company knives that, Mr. — Mr. Chief Justice, the larger knives and the more heavy equipment so that they all have their individual knives.

They’re — they have them and they — they sharpen their own knives, and the testimony is that they had individual taste and they prefer to sharpen their own knives.

They — this is done through use of an emery wheel and wet stones and various tools which the company does furnish the tool room and the tools.

And the employees, although there is evidence that the employees were not required to use the company tools and room, the employees generally did use it.

Most of them did not have that equipment for sharpening their own knives.

Theoretically, too, the employees could take their knives home and sharpen them.

That was a pure theory.

It was very rarely done and I think there were few occasions mentioned where the employee had some custom work and he took some knives home, but there were very good reasons why they wouldn’t take them home from sharpening.

For one thing the knives could dull.

They have their edges dull just in the movement to and from the home to the plant.

And also, it was somewhat dangerous to carry these knives around away from the plant and going into traffic.

Bessie Margolin:

In addition to that, as one employee testified, it took — would take as long to wrap it up to make it safe to carry it as it would, just stay and sharpen it almost.

It wasn’t worth fooling with taking it home.

So, then, as a practical matter, they — they could not do this sharpening work at home.

With the requirement that the knives be razor sharp, it had to be done immediately prior to the — the assembly line work.

Now, the Tenth Circuit, I think, did not take issue with the fact that this is an indispensable and integral part of — of meat-cutting work.

William O. Douglas:

I think it’s the Ninth Circuit.

Bessie Margolin:

The Ninth Circuit, I beg your pardon.

And I — I don’t understand that — that respondent disputes that.

The Tenth — the Ninth Circuit’s reasoning was that anything before the scheduled work, any activity, preparatory activity before the scheduled workday or after the scheduled workday was preliminary — a postliminary within the intent of Section 4.

As I have already stated in — in the argument of the preceding case, we think the terms of the statute despite Mr. Justice Frankfurter’s objections, as well as the legislative history, plainly show that the Section 4 does not make the decisive consideration whether it’s pre-shift or post-shift.

And I will continue with the legislative history because there is much more of that than we could argue I suppose forever on the — on the terms of the statute on its face, but the legislative history where there is more opportunity to — to state the intent in detail than there is on the face of the statute makes it clear beyond doubt that this type of activity was not intended to be made non-compensable whether it was performed before the work shift or after the work shift, as well as performed during the day.

The Senate Report gave two examples specifically of what was intended by principal activities, and those two examples we submit clearly indistinguishable from the knife-sharpening of the meat cutters.

The first example was the oiling, greasing and cleaning of machine by a lay operator.

Hugo L. Black:

What read — what page is that on the brief?

Do you know?

Bessie Margolin:

That appears on page 14 of our brief.

They’re — they are quoted.

Those two examples are quoted, and is “cutting, installing a new cutting too” and then the, “getting machines in readiness in operation” was the second example.

And the — in giving those examples, Senator Cooper later pointed out in explaining that on the floor of the Senate that those examples were — showed very clearly that Congress was not excluding pre-shift and post-shift activity because both of those examples are obviously pre-shift and — and post-shift.

Now, counsel in the Steiner case, brushed it aside, the Senate —

Stanley Reed:

Not a garment worker, was — is it, a garment worker?

Bessie Margolin:

I beg your pardon, Justice Reed.

Stanley Reed:

The garment worker was in its —

Bessie Margolin:

The garment worker in a textile mill who gets the machines in readiness.

Stanley Reed:

That who is required to report 30 minutes?

Bessie Margolin:

Yes.

Well, she was — well now — and that, that’s some interesting colloquy that followed there where someone asked Senator Cooper if he had any special reason for using 30 minutes.

Would it make any difference if it was 20 minutes, 15 or 5 minuets and Senator Cooper said explicitly, “No, I just took the term 30 minutes but the time element has nothing to do with it.”

That would be the principal activity.

Stanley Reed:

Well, now, I’m thinking that that’s within this particular worker.

Stanley Reed:

The garment worker is required to be there in her — in her day and starts in, is it?

Bessie Margolin:

Well, the question is what you mean by required.

If — if —

Stanley Reed:

Order, it must be the order he picked up.

Bessie Margolin:

Well, if this — if this — if the evidence here shows that if these knifemen didn’t have their knives sharpened and ready for the production line, they were fired.

Stanley Reed:

I’m only asking about this section, the second illustration on page 14.

Bessie Margolin:

Well, the second one is not — obviously, it’s not as close in point as the first, but subsequently, Senator Barkley put almost this precise case to — to Senator Cooper, and he put the case of the sharpening and preparing the tools which he, the employee himself or his colleagues are — are to use when the factory opens.

And he referred particularly to performing these activities in the morning prior to the scheduled work shit, and he asked explicitly, “Is that a part of his principal employment or is that preliminary or if he is required to do it after the close of the shop in the afternoon, is that part of the postliminary work?”

Now, this colloquy appears on page 18 of our brief.

And to which Senator Cooper answered and this is quoted on page 18 of our brief.

Let me say that on page 48 of the report of the Committee, that exact situation, one is merely comparable to it as probable — as probably could be cited if discussed and that’s the one of — of sharpening, cut — putting a new cutting tool into the lathe machine, and under the circumstances that if the intention of the framers deal that such activity shall be compensable as part of the principal activity.

Harold Burton:

Was that — was referenced to appearing and sharpening and preparing their tools before they got into what the jury considered a principal activity?

Bessie Margolin:

That’s exactly it.

That’s the one that — that’s the example Senator Barkley was putting.

Now, respondent thinks to minimize the effect of this example by quoting from a statement by Senator Barkley that followed which — where he said that he had a strong — he — he was — might be mistaken, but he got the strong impression from the language of the — of the Act and it wasn’t the language of Mr. Frankfurter that is now in the Act but some other language.

He got this strong impression from the language that — that type of activity might be considered a Portal-to-Portal activity under the — it was then a definition of Portal-to-Portal activity the Act, in the bill.

But in addition to the fact that Senator Cooper had unqualifiedly corrected Senator Barkley, and in addition to the fact that Senator Barkley admitted that he hadn’t carefully analyzed the Bill which obviously Senator Copper had done.

In addition to those two factors, the confusing definition of portal-to-portal which — to which Senator Barkley was referring when he say he was confused, was omitted from the Act as enacted.

And what’s more in the bill that shows that definition was simply in the — the Section 2 part of the bill and not in the — latter part of the bill.

So that Senator Barkley’s remark at that point is wholly irrelevant in — into tracks not at all from the meaning of principal activities as to be related to this precise example of sharpening tools.

Felix Frankfurter:

I — I suppose that even a confused commentary by legislative is not criminal.

I —

Bessie Margolin:

Well —

Felix Frankfurter:

— suppose that legislative history doesn’t waive whether the defendant ever made the speeches, was confused or not.

That would soon further complicate our difficulties here to decide whether he may talk (Inaudible) —

Bessie Margolin:

Well, except that Senator Barkley saved us that trouble by saying that he — he might well be mistaken and that he be glad to be corrected and Senator Cooper did correct him.

Felix Frankfurter:

But then (Inaudible) to refine the speech, and that’s what I’m talking about.

Bessie Margolin:

Well, he called it fine — a fine distinction.

Felix Frankfurter:

A fine distinction becomes the principle of law.

Bessie Margolin:

Well, I think that’s not — that’s not rare in —

Felix Frankfurter:

That’s very rare to a situation like this.

They’re making these questions of fact —

Bessie Margolin:

I — I think that —

Felix Frankfurter:

(Inaudible)

Bessie Margolin:

— it’s to be expected in the statute of this generality which has — has — applies to so widely varying situations.

Felix Frankfurter:

That’s why —

Bessie Margolin:

They’re bound to be some — some part of the question.

Felix Frankfurter:

And that’s why the — the courts do is important to us (Inaudible)

Bessie Margolin:

Well, except that — of course, we would — we would be glad to adopt that, the purposes of the Steiner case.

Felix Frankfurter:

Yes, but that is supposed to be in it.

Bessie Margolin:

But we — we show — I think that it appears that if — you can adopt that obviously because otherwise you get — you get a different result from precisely the same facts where uniformity is important.

Felix Frankfurter:

After saying this probability.

Bessie Margolin:

Well —

Felix Frankfurter:

Define different?

Bessie Margolin:

I would say that knife-sharpening is certainly every bit as part of a principal activity as —

Hugo L. Black:

(Inaudible)

Bessie Margolin:

— as changing clothes and — and for the purposes of — of the hazards in the Steiner case, and I think they’re different in the result and this is, of course, I think, why we are here in this Court.

The differences in the result is because the Court took, not because they — of the question of whether it was principal activity really, an integral part of the work.

I don’t think that is what caused the difference.

I think the difference that caused by their basic a legal approach, they — they applied different legal criterion.

The Ninth Circuit assumed that any activity, any preparatory activity outside the scheduled workday was preliminary and postliminary and I think that is the sole explanation for the difference in results here.

Felix Frankfurter:

That isn’t the way I read the (Inaudible)

He rejected the suggestion that all preliminary, he didn’t say, “No preliminary and no postliminary.”

He rejected the suggestion that all preliminary which are integrated and related to the principal activity are constrained, didn’t he?

Bessie Margolin:

Well —

Felix Frankfurter:

That’s what he said.

Bessie Margolin:

Well, we don’t say that all — all preliminary, all —

Felix Frankfurter:

They were (Voice Overlap) —

Bessie Margolin:

— prepared to — well, I think the Court of Appeals made it quite clear that — that even if this one integral part and indispensable to the principal act to the meat-cutting job in the production line activity, they would — they felt that it would be preliminary and postliminary because —

Felix Frankfurter:

I’m suggesting — I’m suggesting the legal criterion which he stated is predicated and said this may lead to another part of (Inaudible) — lead to a different conclusion.

Bessie Margolin:

Well, it’s true that this —

Felix Frankfurter:

And those conflict, though inevitable as you say where you got a legislation like this as though a diversion on the courts and not make some administrative agency the determiner of the facts in a different case.

Bessie Margolin:

Well, I don’t think so many conflicts are inevitable as — as would occur, not merely so many would occur if this Court never would take any of these cases.

I assure you your decision have sold many — many problems of course and prevented many conflicts.

Felix Frankfurter:

That’s a result of —

Bessie Margolin:

Now, they’re bound to be — they’re bound to be with the varying facts.

They are bound to be of many apparent conflicts.

Felix Frankfurter:

And it also let the legislation —

Bessie Margolin:

Right.

Felix Frankfurter:

— which followed and it should have gone to from my point of view and did go that way because — well, the case of this Court will do it for the purpose of —

Bessie Margolin:

Well, because they have varying opinions on that.

We always have varying opinions on that and still get them.

Felix Frankfurter:

But is that the varying opinions on the fact that the constructions given by this Court let the Congress go the other way and that they —

Bessie Margolin:

Well, the — the Congress — the Congress has it on the other way on many of what I can —

Hugo L. Black:

(Voice Overlap) Is there anything wrong with the fact that this Court construed legislature?

It construed and they bring up the difference and Congress wants to change it, make it wrong (Voice Overlap) —

Bessie Margolin:

I think I heard —

Hugo L. Black:

— judicial and legislative process.

Bessie Margolin:

I think I heard one of the justices on this Court say once that there wouldn’t be much need for lawyers if that wasn’t mostly our job, if that job was taken away from us.

Felix Frankfurter:

The only (Inaudible)

Bessie Margolin:

Obviously — obviously, a great part of — of the work of this Court must be to construe the statutes of Congress and the language to use that kind.

Stanley Reed:

Ms. Margolin, you — you’re — the Wage-Hour to — bring these actions in order to enforce his views, does he not?

Bessie Margolin:

That’s right.

He issues the interpretation and then brings the acts to — to enjoin violation.

Stanley Reed:

(Voice Overlap) interpretations that are more general?

Bessie Margolin:

He tries to —

Stanley Reed:

He doesn’t mention an interpretation for this particular act that we have here, this King Packing Company, does it?

He uses some general interpretation.

Bessie Margolin:

Well, he frequently will give specific opinions when they’re requested.

Stanley Reed:

Well, but before this suit was brought, did it — was the suit brought by the Wage-Hour Department, wasn’t it?

Bessie Margolin:

That’s right to —

Stanley Reed:

(Inaudible)

Bessie Margolin:

— to enjoin violation.

Stanley Reed:

To enjoin violation of the Act.

And now, was there some specific finding by anyone before that action was brought?

Bessie Margolin:

Well, I don’t know what you mean by specific finding.

There was an investigation and they were advised —

Stanley Reed:

(Voice Overlap) the authority that the — the Wage-Hour Administration that says, “We — we think that sharpening knives before for meat-cutting is —

Bessie Margolin:

Oh, the interpretative bulletin specifically states that administrative view that knife-sharpening time is not preliminary, postliminary but is compensable principal activity.

Stanley Reed:

Well, now, does that have any new forms on the Court to pass on —

Bessie Margolin:

I think undoubtedly, the Court have given it great weight and particularly —

Stanley Reed:

Submitted so far as evidence in the case.

Bessie Margolin:

Well, those are published in the federal register and can be referred to as any other legal authority, I assume.

In addition, to the — the rule of the — that this Court has repeatedly apply that that carries great weight is the fact that those interpretations have — have been brought to the attention of Congress or at the time of the 1949 Amendment and Congress did not changed that particular interpretation.

And as this Court has held in two recent decisions, this — the general section in the 1949 Amendments keeping in effect any interpretation are not inconsistent with the terms of the amendments that that is in effect a ratification of the interpretations then outstanding.

Now, these interpretations were —

Stanley Reed:

You heard the interpretative — you heard that the interpretive bulletin has the same authority as the regulations?

Bessie Margolin:

Well, I wouldn’t go so far as to say that.

I — I think a regulation becomes almost the same as a law, but I think that those interpretations that were outstanding at the time of the 1949 Amendment and not — and not amended by virtue of the Section 16 (c) of that Act take on almost the same effect as a regulation rule or the statute itself were.

Felix Frankfurter:

Was there controversies before the amendment, Ms. Margolin?

I — I’m referring from — from the fact that there was administrative bulletin for rendering —

Bessie Margolin:

On the knife sharpening time had been the controversy?

I don’t believe we have specifically brought any action.

Felix Frankfurter:

Was there any — was there any chemical in the earlier cases?

Well, if these —

Bessie Margolin:

On the —

Felix Frankfurter:

— these conflicts derived from the Board — that the Board will ask?

Bessie Margolin:

These — some of them — most of them have come up, I think since before — for lack of these law has been — regardless, very well-settled prior to that time.

If I may, I would like to reserve the remainder of my time.

Earl Warren:

You may.

Willard S. Johnston:

If I may speak to that question so —

Earl Warren:

Mr. Johnston.

Willard S. Johnston:

Thank you.

While we’re on this subject, I must disagree with Ms. Margolin that these controversies arose from the Portal-to-Portal Act, certainly and most specifically in so far as the knife-sharpening problem that we are concerned with in this case.

This problem, this whole problem arose under the Wage and Hour Act, the Labor Standards Act before the Portal-to-Portal Amendment.

And this tool sharpening problem was involved in the Mount Clemens Pottery case, which this Court decided and which was the last of the three cases under the Wage and Hour law that clearly and undeniably resulted in Portal Act.

And in the Mt. Clemens case, it seems to us that they — that this Court made a holding which makes it perfectly clear if we’re going to concern ourselves with questions of statutory construction that there is no merit in the Government’s position here, and that what the Government is doing is seeking to ask this Court or is asking this Court to nullify the Portal Act.

The Mt. Clemens case, if Your Honors please, was concern with preliminary activities such as we are concerned with here.

It was concern with both travelling, walking on the company’s premises, and it was concerned with preliminary activities such as the knife-sharpening, tool sharpening.

And the question before the Court in the Mt. Clemens case was whether all these preliminary activity compensable under the law or not.

And the Court didn’t hold that it was all compensable.

You held only that part of it, namely, that that was necessary to the performance of the employees’ main job was compensable.

Well, it was that holding that resulted in the Portal Act, namely, the holding that only dispensable, I mean only indispensable, only necessary preliminary work is required to be compensated for under the old Wage and Hour law.

It was that holding that Congress didn’t like and that has caused Congress to enact this language, which has Mr. Justice Frankfurter has pointed out, is so clear in eliminating the compensability of any preliminary activities.

The statute uses the word “any”.

Felix Frankfurter:

Is the Mt. Clemens record as it came here — as it came here, was it allowed or disallowed gathering from what you said?

It slipped through my mind.

I thought it was partly and I didn’t know the proviso involved in this case.

Now, was there an item for the knives which — and it came here was allowed or disallowed?

Willard S. Johnston:

Your Honors ruled that it was allowable on the theory that it was a necessary activity.

That it was a necessary preliminary work, but you pointed out that any of that preliminary work that was unnecessary was not compensable even under the old law prior to the Portal Act.

In view of that, the Government has no standing here to claim that all that the Portal Act did was to make not compensable, the unnecessary, superfluous travel time or other preliminary activities.

You — you pointed out particularly with reference to the matter of travel time.

There was only the necessary travel time, the indispensable travel time that could be compensated for.

Thus, you said —

Harold Burton:

On the property of the employer.

Willard S. Johnston:

On the property of the employer, yes, yes.

Felix Frankfurter:

But the government —

Willard S. Johnston:

But —

Felix Frankfurter:

It doesn’t follow, I suppose this (Inaudible) to say or could say, that — that because of some necessary, something deemed necessary on Mt. Clemens were now no longer after the Portal-to-Portal Act dispensable, that that doesn’t — that doesn’t establish.

Felix Frankfurter:

That isn’t the equation which proved that those necessary things which are part of what he calls the (Inaudible) have also been cutoff by Portal-to-Portal.

Willard S. Johnston:

Well, that’s conceivable but when you look at the language of the statute as you have already pointed out, Congress didn’t make any qualifications.

In fact, not only did Congress not make any qualifications, but if Your Honors please, Congress specifically excluded the possibility of any qualifications by excluding liability for any of these activities, just going through the language of the statute which is so clear itself.

We think there is no room for statutory constructions.

Felix Frankfurter:

(Voice Overlap) questions down to the argument as I understand it that principle activity is almost a term of art and doesn’t mean that which takes most of the day in doing but that which is of indispensable part, not every — just walking down from — from the entrance, way down below it, just entered by (Inaudible) six floors down below which is certain.

Walking down isn’t a necessary part of cutting meat or chopping it nicely.

I don’t know why this (Inaudible) –[Laughs]

Willard S. Johnston:

It is.

It’s most necessary and most indispensable.

It’s just as indispensable as knife-sharpening that the employee gets to the place where he does his work.

Felix Frankfurter:

What are you doing with — what are you doing with Mr. Cooper’s observation?

Willard S. Johnston:

Well, Senator Cooper was contradicted immediately by Senator Barkley.

Senator Barkley said, “This isn’t my impression,” he said and we’ve quoted the language in our brief here.

Hugo L. Black:

Which one — which one was for the Act?

Willard S. Johnston:

Senator Cooper was for the Portal Act and Senator Barkley was one of those that opposed it and he said, “I don’t like it because it’s so broad.”

He and the other senators contradicted and disagreed with Senator Cooper.

We’ve quoted the language which Senator Barkley used on page 20 of our brief and he was responding to Senator Cooper.

He said, “All preliminary and postliminary work required by an employer in non-compensable and that —

Hugo L. Black:

Which one was charged by the Committee with the special responsibility?

Willard S. Johnston:

Well, Senator — Senator Cooper was one of the members of the Committee, Senator Barkley was not.

However, we do not —

Hugo L. Black:

If knife — if knife-sharpening is not as — as is argued by the Government —

Willard S. Johnston:

Is — is what?

Hugo L. Black:

Then, if knife-sharpening is not included that time, then Senator Barkley was mislead.

Willard S. Johnston:

It’s not in the statute.

Hugo L. Black:

If Ms. Margolin is wrong about the position you take about the knife — knife-sharpening —

Willard S. Johnston:

Yes.

Hugo L. Black:

— Senator Barkley was mislead, wasn’t he?

Willard S. Johnston:

No.

Hugo L. Black:

He wasn’t?

Hugo L. Black:

He asked (Voice Overlap) —

Willard S. Johnston:

Senator Cooper was mislead.

Hugo L. Black:

Senator Cooper?

No.

Willard S. Johnston:

Let me see if I follow you.[Laughs]

If —

Hugo L. Black:

Senator — Senator Barley just wanted to know of the — the time people spent on sharpening their knives like these are doing here would be compensable.

Senator Cooper said they would.

Felix Frankfurter:

Mr. Senator Barkley wasn’t mislead, he disagreed.

Hugo L. Black:

But he disagreed.

Felix Frankfurter:

Yes, he wasn’t mislead.

Hugo L. Black:

If — if it should be held now that Senator Barkley, that Senator Cooper was wrong, we would be holding that he — he didn’t understand that phase of the bill would he?

Felix Frankfurter:

Senator Cooper?

Hugo L. Black:

Yes.

Felix Frankfurter:

Well, Senator Cooper wasn’t dealing with our case.

Hugo L. Black:

But he was dealing with knife-sharpening at the time.

Felix Frankfurter:

He was dealing with a — a different case than we have which I would like to go into tomorrow if I may.