Memorandum for Respondent — Steiner v. Mitchell

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_ Guhe Supreme Gourtof eed es

- OctosiR TERM, 195 *.

"Morris: StELVER, » Harry. Licntman, MrtcHet.

Macip,. axp B. 1B. Srerver, EyptvipvaLLy aNp .

AS- Co-PARtNERs Dorxu BUSINESS aS -CUMBER-

LAND Batrery MANUFACTURING COMPANY, AND

CUMBERLAND .BarTery Man UFACTU RING Com- 3

PANY, A PaRTNERSHIP, PETITIONERS

: v. 3s

ee Bi AMES P, MitcHELL, SUCRETARY OF ‘Lapor, Usiren

- STATES: Devar ARTMENT OF Lanor -

ve. id uy

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ON PETIT ION “POR A WRIT OF CERTIORARI TO THE I UNITED

STATES OURT: OF APPS ALS FOR THE. SIXTH cIRE UIF . ..

hae

e eon anon FOR RESPONDENT

SIMON E.- SOBELOFF,

_ Solicitor General,

‘ oP &° Department of » Justice,

en ate , oF Washington 235, D. c.

STUART ROTHMAN, Be aan by Nees

Solicitor, ~_ :

BESSIE GOLIN,

Assisiant Solicitor, _ r .

. SYLVIA 8. ELLISON, om 58 e. :

Attorney, | ee Fem : 1

De partinent of Labor,

Washington 25, D. C.

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. Opinions: below_._:-_-----~- PARE: Pio Sane epee 1

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CITATIONS »

eae Wepre oe Beco

Mitchell’ v. King ee Co., 216 — 618... 10

Statutés: sepia

Fair Labor Standards Act of 1938, c. “676, 52 :

. Stat. 1060, as amended ‘by the Fair Labor poi

, Standards Act of 1949, c. 736, 63 Stat. 910 (29

ie U.S.C. 201 i Sees eee ae aoe Skaeine: 2

gn nee, | y Seok MUG Aeeann ie aaa ae eT Ce Ne oe eh 3

“-—™ =

Sec. 11.(2)_....- paediatrics Tian wa Mewes hates 3

ee OE is UL eee 3

_ Portal-to-Porta! Act of 1947, c. 52,. 61 Stat.

oS 84 (29 U.S.C. 251 et seq.) oe eas TENE... 2

: NE OG AS EE Se ROG AO ee ae

. Tennessee. Code. inn: (Yraieme, HwAA), 3952.

Supp.: * nie agate pig

Sec. 5788.15. __- oe eee er ee

Sees. "A A Rea 7

Te WUE OO) neo ce Ss ces ieee. ee ee

See. WONG. c6545.~ sce paucehiccbikeaouie oo

he on. ; it arte

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334600—55._

Sut Supreme Court of the United States

OCTOBER TE RM, 1954 .

N Oo. 465

Morris STEINE R, es ARRY Licntaanx, MitcHrn.

Macip, anp B. B. Sr NER, LNDIVIDUALLY AND

aS Co-Parrners Dorn@ Bustxess as ‘CUMBER-

LAND, BATTERY MANWFACTURING COMPANY, AND

~ CumMBERLAND Barrery MANvuracturrnc Com-

PANY, A PARTNERSHIP, PETITIONERS

| ~U@. . a

James P. MITCHELL, SECRETARY OF Lapor, UNITED

Srétes DepaRTMENT oF LaBor

: ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

ST ATES COURT OF APPEALS FOR THE SIXTH CIRCUIT,

MEMORANDUM FOR RESPONDENT

: OPINIONS BELOW 2

“The opinion of the district court’ (R.. 918-299)"

is reported at 111 F. Supp. 546. The opinion.

of the court of appeals (Pet. 43-- 52) appears at’

215 F. 2d 17%:* 3 |

JURISDICTION

The ‘judgment -of the United States Court of

Appeals: for the Sixth Circuit was entered on

las refe ‘rences ure to the appendix to petitioners’ brief

inthe court of appeals. “RR” references are to the appendix |

to respondent's court of appeals brief.

(1)

)

°

' August 10, 1954. A: petition for rehearing was

denied without opinien on September 17, 1954.

The petition for a writ of certiorari was filed on

December r 2, 1954; and the time for: reply was

extended by the Clerk, pursuant to Rule 34 (5) .

of the Rules of this Court, to. March 10, 1955.

The or essnagniae of this Court is invoked under

". 98-U.S. C. 1254 (1). -

‘STATUTES INVOLVED:

‘The pertinent provisions of the Fair Labor

Stand: irds Act of 1938, ¢. 676, 52 Stat. 1060,’ as. -

amended by the Fair mii Standards Amend-

ments of 1949, ¢. 736, 63 Stat. 910 (29 U. 8...

201° ct seq. ), and of = ca -to-Portal Aet of

1947; ¢. 52, 61 Stat. 84 (29 U.S. C. 251 et se q-)s

are appended to the petition - ‘a writ of cer-

tiorari (Pet. 37-41). °

QUESTION PRESENTED

Where workers in a battery plant must make

extensive use of dangerously caustic and toxic

materials and are-campelled by circumstances,

including vital considerations of health and hy-

giene, to’ change clothes and to shower in-facilities

- which: state law requires their employer to pro-

vide, are’ these ‘“‘principal,’’ rather than ‘‘pre-

liminary”? or “‘postliminary,”’ activities. within the

meaning of the Portal-to-Portal Act, so that they

must be counted in measuring the work-time for -

which compensation is required by the Fair Labor

Standards Act? ec Wea

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.

og

2 ‘X

ve ! | STATEMENT

~

The Seeretary of Labor brought this aetion to |

‘enjoin petitioners from violating the overtime and

record-keeping. requirements of Sections and WV

(c)- of. the. Fair Labor Standards Act @& 1958, as

amended, in the eniployment of production. work-

ers, and from vidlating. Section 15 (a)-(1) of

the Act by making interstate shipments of the

goods produced by such workers,

Petitioners own and operate a plant located in-

Nashville, Tennessee, where they are engaged in

manufacturing automotive-type wet storage dat--

teries which they sell in interstate commerce. All.

of the company’s. production employees .cus-

é tomarily work with or near the.v arious he micals

_used in the plant (dg. 4, Re 21 3). These ine Jude

lead metal, lead: oxide, dead, sulphate, lead perox-

ide and stphurie acid ( ibid. J. Some of these are.

V Pequid for n, some aré in pawder forni, and

somie are solid (Rh. 102, 103: 118. 154, 181-1855),

Tn the manufacturing process some of the mate-

rials go through various changes (R. 26) and give

off dangerous fiimes (R. 47-48, 60, 70, 98-99,

126- 127). Some are spilled or dropped and thus

become a part of the dust in the air (R. 27, 71,

108, 117, 154). In general, the chemicals per-

meate the entire plant and everything and every-

one in it (R. 26, RR. 12). | |

‘Lead and lead compounds are ‘toxic to human

beings (fdg. 6, R..214). “Thus, regular exposure -

to atmosphere containing ‘as much as 1.5 mnlli-

"4

grams of lead per. ten -cubi¢ meters ‘is regarded:

‘by the medical profession as hazardous and in-

a volving the possibility of lead intoxication, or lead

poisoning .(ibid.). In battery plants, His

“almost impossible” to keep lead concentratidn

>in the aay “within absolutely safe limits” (fdg.

R. 214).- In petitioners’ plant,**‘lead’ oxide

a ieglag floor and in the air’and on the plates-

_ which employees handled” (dist. ets op., R. 221).

Moreover, “abnormal concentrations of led have-

been, discovered in the bodies of same of | peti-

tioncrs’ | employees and fpetitioners’ | insurance

y doctor has recommended that such Srapleyors be

segregated froni their customary duties” (fdg. 14,

R. 216; se e.also KR. 206). |

The primary ways. in which lead poisoning is

»

contracted .are. by inhalation and ingestion (R.

48, 60, 61; RR. 11), @. e., by taking in particles

through. the nose or mouth, an open cut or sore,

Or any Otiee body cavity (RR. 12-13) : The risk

is '*‘very gre: it”” (dist. ct. op, R. 220) and even

— outside the pk int because the Jead dust and

ead fumes, which are prevalent in the plant, at-.

a themselves. to the skin, clothing, and hair of

the employees ' (ibid: ; RR. 2623). Even the

families of battery workers may be placed’ in-

“some danger if lead ‘particles are brought home

1 the’ yorkers’ clothing.or shoes (RR, 22-23).

Sulphurie acid in the plant is-also-a hazard.

*

2? While lead may also be absorbed through. the skin, the

danger of becoming poisened in this manner is slight (ht. 48).

5

It is irritating to the skin and can cause severe. Es

burns ‘(fdg. 5, R. 213-214; dist. et. op., R R. 220).

When the acid contacts clothirig, it catses disin-

tegration or rapid. deterioration (dist.. ct. op.,,

R. 290); R. 52-53). Moreover, the effects of sul-

phurie acid make the employee more. susceptible »

than he would ‘otherwise be to contamination by.

particles of lead and lead compounds (fdg. e

|. R. 218-214), Sie :

Battery manufacturers including. petitioners,

try to minimize hazards by planit. ve ~itilation, but:

industrial and medical experts are in agreement

that ventilation alone is not — to avoid

_the dangers of lead poisoning (dist. et. op. R.

220). Safe oper: ition also ,requires Pe removal

of clothing and showering .at the end. of the work

- period. (bid. ; alsa, R. 50-52, RR. 17-19, 32-35).

Accordingly; in order to make their plant as safe —

a place to work as is possible under. the eireum-

stances and -thereby iherease the effici ‘iencev of its

operation, petitioners: have equipped: it with.

shower fae ‘ilities and-a locker room with separate

lockers for work and’ street clothing. -Also, they

furnish withert charge old but clean work clothes +

which the employees wear (R. 175). Employees .

regularly. change inte: work clothes bk ‘fore the

beginning ‘of the productive work period and

shower and change back into-street clothes at the.

end.of that period (R. 10, 33-34). All of the pro-_

duction employees who testified stated that -they.

changed their clothes at the beginning and end of

t

O -

. ‘ rs a

yi J

* the productive: work period, and, with a single ex--

ception,’ that they showered or washed “befere

leaving the. plant (R. 30-31, 72, 81, 94-95, 105,

119, 128, 146, k 56-157), a

Although petitioners have not. issued written In-

structions requiring their employers | to. change.

clothes and use the shower facilities that have:

been made available te them, various employees

testified that the plant foreman chad instructed

"them that they ‘fall had to'take a Iy: ith’? (dR. 105,

123, 138, 149), and that “he told the whole ship”

to do this (CR. 111, 132), ‘fon aecount of lead’?

“(R, 142); AUsigned statement of the foreman

(ht. 163) declared, ‘In the afternoon the men are

required by the compari to take a bath because |

lead oxide might .be absorbed into the. blood-

stream. It protects the company and the ‘em:

ployee both.’? See, also, R. 168-169, 172, - 3

Vhe changing of clothes is especially needed.

by those, who work with sulphurie acid, beeatise

the acid eats wearing apparel. It is, of \course,

possible for the employees to: work in van own

clothes, but, as one of them testified. if he did,

he ‘might 20. home ni uked”? (R. 180), urther-

more, the cost of providing their own work cloth-

ing Avould be prohibitive for the en iplovees CR,

131, .136, 139 since the acid « eauses such rapid

‘The exception is an employee who | has a wounded foot and

is fearful of an infec tion 1f he uses a common shower. This

employee therefore bathes at his home, “about Rve bloc ks

from the _ (R. 145-146).

eo,

= deterioration. that the clething ateebbinaie Jasts

only a few days CR. 36, 72, 92, ST, 104, 152. 158).

The changing of clothes and showering are a-

‘recognized part of industrial Jrvgiene programs’”’

in. the storage battery. industry (fdg. 8, R. 214).

~. Moreover, a ‘Te mnessee statute requires that—

~ * * * every employer shall provide pide

-quate and sanitary shower facilities’ when

the workers. are exposed to excessive heat,

or to skim contamination with infectious,

Irritating, or toxic materials, [ ‘Tennessee

Code Ann. (Williams, 1934), 1952 Supp.,

| Sec, 5788.15.] [Fdg. 9, Rae] 7

Tn. addition, -the Tennessee Workmen’ s Compeén-

sation Act (Tennessee Code — Ann. (Williams,

yO

A934), 1952 Supp., Secs. 6851-6901), which ae.

“ petitioners, makes lead poisonine a compensable a

occupational disease (Section 6852. (d)). In -

order’ to comply; with this statute, petitioners

carry insurance, under Section 6895, to protect

against Liability (fdg. 16, R. 214-215). Their

“insurance carrier would not accept the insurance -

risk if defendants refused to provide showering

and clothes-changing facilities for their em-

ployees”’ (fdg.12, R. 215; R. 65).

- Petitioners nailaaty do not record or pay for

the time which their employ ees ‘spend in clothes-

changing. and showering, which was found to.

amount to thirty minutes a-iday (ten minutes in

the morning and twenty’ minutes in the after-

noon) for each employ eé. (R.- 221). "Holding that

is ge

8 Me, | ee

these activities “are made necessary by the nature ,

of the work. performed, ” that. hey “‘fulfill -mu-

tual obligations” between. petitioners and their .

| employees, that they “dir ectly benefit’’ petitioner rs

‘in the operation of their business, and that they

‘fare so closely related to other di ties performed

by [petitioners’] employees as to be an integral

part thereof and are, therefore, included among

. the principal activities of said employees,’”’ the

trial court concluded that the time: thereby con-

| sumed’ is not excluded from coverage by Section

4 of the . Portal-to-Portal. Act, but constitutes

- time worked within. the meaning, of the F: “arr La-

bor Standards Act (conclusions. of law 3 and 4,

R. 216-217). -The court of appeals affirmed, like-

wise holding that the term “principal activity or

activities’* in Section 4 embraces “all. activities’

which are an ‘integral part. ofa prineip: ul activity”

“(Pet, 46) and that the activ ities in question fall

within this category.

4 . ‘ ~

_ DISCUSSION

4, Section 4 of. the Pr ortal- to- Portal Act, while

it -makes. “preliminary” and « *ostliminary’ "

activities ribneoripesiailiie expressly preserves the

compensability of all time spent by the. employ Ce *

in his “prinéipal activity or aetivities.”’ The lat:

ter phrase, the court: below: concluded, embraces

an activity indispensable to the performance of

productive work. | .

2

oie

Applying this. pre the soni held. that, while

élothes-changing and showering would ordinarily

be a “preliminary” or ‘postliminary”’ activity .

(which responde nt fully -eoncedes), i in the circiim-

stances they were so vitally and closely -related

‘to the effective performance of the employees’.

. pririe rpal work that they were to be deemed an in-

tegral part of it. The particular. circumstances,

as) found below, ‘include the following: that

. proiipt clothes:ch: nging and showering at the-

end of the w orkday constitufe an essential health

measure -reqtired® to minimize the: serious

hazards faced by production Workers in battery

plants; ‘that the employees could: not ‘afford to

provide the very frequent. changes of work

elothes which aré necessitated lay the fact that

they work with harmful chemicals ; that a failure

by petitioners to provide showering facilities for

‘employees exposed to caustié and toxic materials

wauld violate state Jaw; and that the activities in-

volved fulfill. mutual obligations between’ the

cympany and its employees and directly ‘benefit

petitione rs in the ope ration of: their business. As

‘indicated ‘in the Statement, supra, these deter-

minations. are gmply supported by suh wsidiary

mene and by persuasive evidence.

. The thrust of petitioners’ arguments is that

es work on the production line may be consid-

“ ered a principal activity, and that other activity,

even though n¥dispensably related to the produc-

”

tive. proc ess, 18 to be dée ied embraced by the

terms * ‘preliminary ”’ dnd * hostliminary.” he

view of the statute was adapt L-by the ¢ Court of

Appeals for the Ninth Cie-uikKiin Mitchell v.

King Packing Co., 216.F. 2a 618\ (holding that’:

essential knife- sharpening activities by butchers *

‘employed. in a meat packing plant weke noncom= -

pensable). ~The. Government is filing\ coneur-

rently with this ‘memorandum, -a petition for a’.

writ of certiorari in King Packing, We ‘giere a

indicate our "re asons for believing that the inte

pretation which is bemg urged by petitioners here

is ineonsistent with the scheme and history ofthe X

Portal-to-Portal- Act and of. related statutory.

provisions. Instead of repeating that discussion,

we respectfully re fer the Court. to.the petition in-

King Packing. - ae ceater Be ee, |

While there are * certainly factual differences _

between the instant case and Ning Packing, it

appears that the opposing results as to statutory

coverage are rooted in the ‘issue of statutory in-

_ t&rpretation. Indeed, the. Ninth. Cireuit made .

J its disagreement with. the Sixth Circuit’s

holding that the term ‘‘principal acivities” is

-’ “sufficiently broad: to embrace... . such activi-

ties as are indispensable to-the. performance of .

“productive work’? (216 F; 2d at 621). Since this

question of initerpretation is one of fundamental

importance’ in the administration of the Fair La-

bor Standards Act—its resolution will unques-

tionably ¢ ffect tlre compensability OF a eee of

/

5s «

- activities in- numerous industries—we do not op- 3

pose the. instant petition, although we believe that

the decisionsbelow. is correct. ee

Respectfully submitted, 6: See

2 Samo E. SoOBELOFF,

Cees. ae Solicitor General,

STuaRT RorHMAN, 3 7

Solicitor;— Me

BEssir MaraoLin,

Assistant Solicitor, | |

~ Syrvis 8. ELLISON, | ON

a - Attorney, * ?

Department of Labor.

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| | ‘Ocronke TERM, 1955

Morris STEINER, Hargy Licitritan, ‘Mircuenr | re)

Magip, ann BoB. Steiner: LNpivipe ancy. AND AS :

Co-P4RtN ERs Bong BUSINESS AS € UMBERBAND |

_ Barrery MANurF AC TURING Company, AND. CUM-.

BELA AND Barrery Manu FACTURING Company, A

\- Parr NE RSHIP, revi T IONE RS

: gs [>

Jabs Pe Mice HELL, Src RETARY. OF LABOR, U NITED

‘5 + SS Tares S Department OF Lawoit

oe

‘ od

ON WRIT OF CERTIOR ART 10 THE UNITED STATES

& POURT OF APPE. ALS FOR THE SIXTH CIRCU IT

BRIEF FOR an LABOR

. _

Je

sri R. SOBELOFF,

Solicitor. General,

RALPH Ls SPRi TZER,

Hastetngs to the

Cd

AS 2K Solicitor General,

Se 7a % Departmént of Justice,

STpART- Sorina Ages “s Washington 25, AES 2

Solivitor;: Pes

BESSIE MARGOLIN, :

»

Assistant Solicitor, ie

SYLVIA §. ELLISON, ae

Attornpy, ,

Department of tahoe” fae. Lye

ete Wathingtee 25, D. CG. . . ate