# Memorandum for Respondent — Steiner v. Mitchell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0156%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum for Respondent - **Published:** January 1, 1956 - **Citation:** 350 U.S. 247 ## Text Q- re : : Lope a rs Y) : pig : % a ae Sag Stup oi BR > BAe on 195 | “REME ci CURT, ua ¥ Fag eae ee No, 930) cacao _ 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 ae é 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. @ : x Page . Opinions: below_._:-_-----~- PARE: Pio Sane epee 1 ! i lacw ie mic r en tong nee teat sscsawsone: * l _. Statutes involved ____- meetin dg Wi men ong pieienn ce - Question ‘presented _ - - peewee LG dun Pdiseweukekwic. 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. ; "Marcu 1955. ; esa . “ : fae ' x ‘ : a oes ‘ \ Pa * ; nN : é¢ \ — \ \ . | \. : \ XY . \ der o \ \ ¢ \ a ; \ e.\ ° ; A ” \, \. fix x " \ 7? \ e PU) OP re remeie meen AEP. Caer | | Ce pe erat tae Pe a ae ue 1 Uthice - Sunrerss Girt .- ; IaRARY f } IiweeH ; E he i= yen i o s ; ; 0 SE NGEME court, ds SEP 26.1955 ; i "HAROLD B. B: wae Gert __ Satie Sapeme gents he Wad Sten” | | ‘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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0156%3A4. Public record. Not legal advice.