Respondents Brief — IBP, Inc. v. Alvarez

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Supreme Court of the Gnited States

IBP, INC.,

Petitioner,

GABRIEL ALVAREZ, individually and as a class

representative; RANULFO GUTIERREZ, individually

and as a class representative; PEDRO HERNANDEZ,

individually and as a class representative; MARIA

MARTINEZ; RAMON MORENO; ISMAEL RODRIQUEZ,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR RESPONDENTS

WILLIAM RUTZICK* DAVID N. MARK

KATHRYN GOATER LAW OFFICE OF DavID N. MARK

SCHROETER, GOLDMARK 810 Third Avenue #500

& BENDER Seattle, WA 98104

810 Third Avenue #500 (206) 340-1840

Seattle, WA 98104

(206) 622-8000

Counsel for Respondents

August 1, 2005 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUES rION PRESENTED

Under Section 4(a) of the Portal-to-Portal Act of 1947,

an employer need not pay wages under the Fair Labor

Standards Act of 1938 (“FLSA”) for time an employee

spends “walking ... to and from the actual place of per-

formance of the principal activity or activities which such

employee is employed to perform . .. which occurjs) 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.”

The question presented is:

(1) Whether walking is excluded from compensation

under §4(a) where it occurs after the workday commences

and before the workday ceases based on the performance

of non-production principal activities under §4(a) as

interpreted by Steiner v. Mitchell, 350 U.S. 247 (1956) and

29 C.F.R. §790.

‘i

TABLE OF CONTENTS

Page

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RR. FRR BD scercerstistentinnininteninnnnianiin 1

BD aan aE Fei rrcrcsccnressntttiennitaainanicniaiees 4

1. Cattle Slaughter and Processing................ 4

2. Dangerous Work In A Sanitation-Sensitive

TRIED cciunscicucscisncitsintenensiinnnaitieinianiadianiaiiuas 5

3. Required Locker Room Usage .................... 6

4. Tigpenettt UGRGD ccccccccccccecccecccecscecovssososcoess 6

5. Pre-Production Activities.................cccc0 8

6. Post-Production Activities .....................0000 9

7. Gang Time Pay and Time Clock Usage...... 10

8. Quantifying Off-the-Clock Work................. 10

SUMMARY OF ARGUMENT .................::ssssccscsseeeeeeeees 13

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A. Plain Meaning Supports Plaintiffs’ Position..... 16

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2. “Principal Activity Or Activities”................ 18

3. The Fair Labor Standards Amendments of

BGR, GOD ccncccccsmsmamenmanememenes —

TABLE OF CONTENTS -— Continued

Page

The Administrative Interpretation Of §4 of the

Portal Act Supports Plaintiffs’ Position.............

1. The Lower Courts In This Case Correctly

Applied the Portal Act Regulations in

Holding Compensable Post-Donning and

Pre-Doffing Walking ......................cccceeeeeeees

2. Additional Portions Of The 1947 Regula-

tions, Ratified by Congress, Support Plain-

tiffs’ and the Secretary of Labor’s Workday

3. The FLSA “Hours Worked” Regulations

Support Treating The Walking In This

Case As Compensable ......................sssseeeeees

The Ninth Circuit Properly Applied Steiner .....

The Legislative History And Purpose Of The

Portal Act Show That Congress Was Legislat-

ing About Activities Outside Of The Workday

And Was Not Legislating About Periods Within

The Workday, Which The Legislative History

BN cxssnecractntnesmneess mesemmennnneee

Lower Court Authority Supports Compensa-

tion For Walking and Travel Time Between the

First and Last Principal Activities, Even If Not

I TITIITII «cssnnititnetintenenemnnbeienen

The District Court and Court of Appeals

Walking Time Ruling Is a Reasonable and

Practical Analysis of the Paid Workday ............

IS cxzncensesnescemecensesssevenessenes sennsuasensuvenssenstanes

TABLE OF AUTHORITIES

Page

CASES

Amos v. United States, 13 Cl. Ct. 442 (1987).................04. 43

Anderson v. Mt. Clemens Pottery, 38 U.S. 680 (1946) .. 25, 34

Auer v. Robbins, 519 U.S. 452 (1997).............cccccccceeeeeeeeees 28

Bailey v. United States, 516 U.S. 137 (1995).................... 17

Barrentine v. Arkansas-Best Freight Sys., Inc., 750

ee Se Ga a Be emmnncinniiiennen 44

Carter v. Panama Canal Co., 150 U.S. App. D.C.

198, 463 F.2d 1289 (D.C. Cir. 1972), affg, 314

F.Supp. 386 (D.D.C. 1970)..................essseeees 34, 39, 40, 44

Commissioner v. Soliman, 506 U.S. 168 (1993)................ 19

Dooley v. Liberty Mut. Ins. Co., 307 F.Supp.2d 234

BID, Toe e vnecinciesnittavntesicisniniiecanaiainnsaiantaniaiiaaianiniiaiaaanes 44

Duncan v. Walker, 533 U.S. 167 (2001).................ccccccceeeee 17

Dunlop v. City Elec., Inc., 527 F.2d 394 (5th Cir.

Se: — Nae 44

Loving v. United States, 517 U.S. 748 (1996) ................... 22

Metzler v. IBP, 127 F.3d 959 (10th Cir. 1997) (“IJBP

OP ccscinciiiininainsaniecaneiaaacintinmesiaibaiepaeieenneiiaiitinieceiiael 41, 42, 45

Mitchell v. King Packing Co., 350 U.S. 260 (1955)..... 33, 34

NCUA v. First National Bank, 522 U.S. 479 (1998)......... 18

Ralph v. Tidewater Construction Corp., 361 F.2d

Oe 18, 30, 40, 44

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

Gee cceseuscesesseuntensmettimnanienemnnniiiaiiimemeen 22

|g 41, 42, 44, 45

TABLE OF AUTHORITIES -— Continued

Page

Reich v. IBP, 38 F.3d 1123 (10th Cir. 1994) (“JBP

[IT Pransnannssiiesuimnnegnnianieiniinnsnmptninaaeniemimsaibidatmmsiiaminedtitatis 41, 42

Reich v. IBP. 3 BNA Wage & Hour Cases 2d 324

Dg en 41, 45

Reich v. IBP, 3 BNA Wage & Hour Cases 2d 632

gg en 41, 45

Reich v. Monfort, Inc., 3 BNA Wage & Hour Cases 2d

1229 (D. Colo. 1996), aff'd, 144 F.3d 1329 (10th Cir.

TD cxnseccusdentsntenanisiunsiiciitutiaiiteiaiedapammediiiiaindia 40, 41, 44, 46

Reno v. Bossier Parish School Bd., 528 U.© 320

Fie necscnnicisinitanianaiainiitinddmeeennaimeitinimemiadieiiianeenis acrnannin 18

Rivers v. Roadway Express, 511 U.S. 298 (1994).............. 18

Saunders v. John Morrell & Co., 1 BNA Wage &

Hour Cases 2d 879 (N.D. Iowa 1991)..................cc0c00000 49

Skidmore v. Swift & Co., 328 U.S. 134 (1944)............ 21, 22

Steiner v. Mitchell, 350 U.S. 247 (1956).................... passim

Thomas Jefferson University v. Shalala, 512 U.S.

ee See are 28

Tum v. Barber Foods, Inc., 360 F.3d 274 (1st Cir.

ee tincecennninnnnimnggiiemne canetiainpabiennepensubininguebentestiid 28

OTHER AUTHORITIES

STATUTES AND REGULATIONS

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es HE sccternennecsestonecenncncinnintniaisniiaimsatisimmihieaealal 42

a ee 21

TABLE OF AUTHORITIES — Continued

Page

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GSES SECE RE aetna emer 15, 28

Fen Nees passim

GEESE en aaa eRe 18, 33

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ESET ETS RNP ND passim

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I ID sci tiitbtcceecsesencccncctenisennention 26, 33, 43

I seit siciiiesnssinaresenoeniiamsniasiaiaa 15, 26

29 C.F.R. §790.7(d) ............ po ae —— 41

a 26

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| ee 22, 23, 33

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EC es ee —

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DG Fee ec sverssccccessssscegpupecsmmmutpmesomanstanenenentt 28, 43

Vii

TABLE OF AUTHORITIES - Continued

Page

LEGISLATIVE HISTORY

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S. Rep. No. 80-48 (1947) .000........cccccecceeeeeeeenees 16, 34, 35, 36

MISCELLANEOUS

BLACK’S LAW DICTIONARY (7th ed. 1999) ................:eccceceees 21

WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY

See 21

STATEMENT

A. Proceedings Below.

In 1998, Respondents (referred to herein as “plain-

tiffs”) filed this class action in the United States District

Court for the Eastern District of Washington complaining

of unpaid pre-production, meal break and post-production

work. See Pet. App. 35a, 42a & 75a; J.A. 17-27 (second

amended complaint).' Plaintiffs alleged violations of the

FLSA overtime requirement, 29 U.S.C. §207, state mini-

mum wage and overtime law, and a failure to provide a

second paid rest break on workdays of 8 hours or more in

violation of state law. Id. The District Court certified an

FLSA opt-in class, under 29 U.S.C. §216(b), and exercised

supplemental jurisdiction over the 815 opt-in class mem-

bers’ state law claims. Pet. App. 44a-45a.

In 2000, the case was tried to the District Court, with-

out a jury. The District Court heard testimony from over 40

production line workers. See Pet. App. 35a & 49a. The

packing equipment (including a metal mesh apron, a metal

mesh apron with leggings, a metal mesh vest, metal mesh

sleeves, a metal mesh glove, a plexiglas armguard, a Kevlar

sleeve, a Kevlar glove and a variety of hand tools such as

meat hooks and steels),’ plant diagrams with job titles arid

’ Plaintiffs abbreviate the appendices as follows:

“J.A.” Joint Appendix

“Pet.App.” Appendix to Petition for a Writ of Certiorari

“Resp. App.” Appendix to Brief in Opposition to Petition

for A Writ of Certiorari

* Plaintiffs’ Exhibits (“Pl. Exhs.”) 120 & 120A-120BB, Trial

Transcript (“Trial Tr.”) 187:25-188:11.

locations,’ “Required Personal Protective Equipment” lists

for each job,‘ and videotapes of pre-production, meal break

and post-production work.’ Time study experts testified for

each side. See Pet. App. 50a. IBP was held liable under the

FLSA and state law for failing to pay for pre-production,

meal break and post-production work. See Pet. App. 47a-

51a. Moreover, IBP was held liable under state latv for not

providing a second paid rest break. Pet. App. 76a.

The District Court held that “the donning, doffing,

cleaning and storage of required equipment, safety and

otherwise, are integral and indispensable to the workers’

duties as meat processors.” Pet. App. 58a; see also Pet.

App. 53a. The walking time between the locker and the

production floor for employees was held compensable

because it occurred during the workday. Pet. App. 54a. As

is discussed infra, the District Court awarded damages

* Defendant’s Exhibits (“Def. Exhs.”) 369 & 369A (slaughter floor

chart and list of jobs), Trial Tr. 2860:20-24; Def. Exhs. 370 & 371A-D

(processing floor chart, cooler department 715, bone department 765,

and hamburger mezzanine), Trial Tr. 2998:16-17 3000:25-3001:6 &

3133:22-3134:13, respectively.

* Pl. Exh. 90 (slaughter June 1994), Trial Tr. 1521; Pl. Exh. 91

(processing June 1994), Trial Tr. 3550:20-3551:2 & 3553:17-18; Pl. Exh.

92 (processing Dec. 1999), Trial Tr. 774; Pl. Exh. 93 (slaughter April

2000), Trial Tr. 1597:4-16 & 1600:13-19. '

Plaintiffs also introduced with each testifying class member an

exhibit listing his or her equipment and tools, for each job performed

during the class period. Pl. Exh. 1000-1013, 1014-1021, 1023-1024,

1027-1031, 1033-34 & 1039-1047, Trial Tr. 187, 296, 378, 448, 538, 493,

578, 669, 630, 730, 859, 1042, 1073, 1097, 1201, 1232, 1455, 1484, 1518,

1536, 1579, 1602, 1698, 1741, 1784, 1816, 1838, 1880 & 1889, 1910 &

1923, 2264, 2290, 2443, 2466, 2508, 2542, 2578, 2611, and 2634,

respectively.

* Pl. Exh. 174, Trial Tr. 1260:3-8, viewed and discussed inter alia at

Trial Tr. 1237:20-1301:10 (Martinez pre-production and post-production

in processing) & Trial Tr. 1602:21-1626:1 (Moreno, pre-production and

post-production in slaughter); Pl. Exhs. 175A-F, Trial Tr. 1318:15-23,

1319:19-20 & 2048:22-2049:1.

based on time-studied equipment and activity minutes

applicable to each specific job classification for each, class

member on a daily basis throughout the damages period

See Pet. App. 77a-78a. Damage reports were admitted by

stipulation of the parties. Pl. Exhs. 1057-1068, Trial Tr.

4593:21-4594:16. The District Court entered judgment in

favor of the workers for $3,098,517, including $1,751,126

in FLSA overtime damages. Resp. App. 1b. Both sides

appealed.

The Court of Appeals affirmed on all issues, except for

calculation of state law meal break damages. The Court of

Appeals held that “the retrieval and donning of protective

equipment [were] ‘integral and indispensable’ preliminary

activities, and, as such, [were] ‘embrace[d]’ by plaintiffs’

‘principal [work] activity.’” Pet. App. 18a (quoting Steiner

v. Mitchell, 350 U.S. 247, 252-53 (1956)). The Court of

Appeals further held that walking time between the locker

and work station was compensable because it occurred

after the first principal activity of the workday and before

the last principal activity of the workday. Pet. App. 18a-

19a. The Court of Appeals reversed and remanded on state

law meal break damages, holding that any meal break of

less than 30 minutes had to be fully compensated, accept-

ing arguments advanced by the Washington State De-

partment of Labor & Industries as amicus curiae. Pet.

App. 30a-32a & 34a. As a result, plaintiffs will recover

$7.3 million on remand, all of it under state law. See Pet.

App. 74a (District Court alternative damages findings).

* Therefore, this Court's ruling will not affect judgment in thi

case, but it is likely to have modest collateral coace <thets a te

v. IBP, Case #01-5093 (U.S. Dist. Ct. Eastern District of Washington), a

case in which judgment has been entered against IBP’s successors,

Tyson Foods and Tyson Fresh Meats, Inc., on similar claims.

B. Statement of Facts.

1. Cattle Slaughter and Processing.

Plaintiffs are 815 slaughter and processing line

workers at IBP’s Pasco, Washington plant. Pet. App. 45a;

see Pet. App. 35a & 75a. In slaughter, cattle are killed and

hoisted onto a chain. Trial Tr. 2730:5-2731:23; see Pet. App.

36a. They then move along a series of chains where they

are disassembled into carcasses and byproducts. Pet. App.

36a; see Pl. Exh. 46 (page IBP #02566, Trial Tr. 3027:17-

23). A typical slaughter crew includes 178 slaughter

workers in 113 job classifications, each of whom performs

one or two discrete operations in the disassembly line

process. Pet. App. 36a. Approximately 110 of the 178

slaughter workers (62%) use straight knives’ or other

handheld cutting utensils. Trial Tr. 2730:5-2859:23; Def.

Exhs. 369 & 369a, supra. The carcasses are sent into a

cooler where they are stored for at least 24 hours. Pet.

App. 36a. The slaughter division is hot, with workers

exposed to wet conditions and animal fluids. Trial Tr.

2685:4-15 & 2703:7-9 & 18-21. The slaughter division

works one shift daily. Pet. App. 36a.

In processing, the carcasses emerge from the cooler

and move along a series of chains and belts. See Pet. App.

36a. There are two processing shifts, each with approxi-

mately 400 workers in 135 job classifications. Pet. App.

36a. Saw operators and knife users drop primal cuts onto

eight processing floor lines, each of which is a separate

department with 25 to 40 workers working side-by-side

" “Straight knives” is used to distinguish hand-held knives from

mechanical air knives or whizard knives. See, e.g., Trial Tr. 2766:12-17.

along a belt on each shift. See Pet. App. 36a; Exhibit 370,

supra; Pl. Exh. 46, supra (IBP #2567-2571).*

There are 624 processing line workers between the

cooler and the end of the belts - 312 on each of two shifts -

and 98% of them use straight knives (578) or large power

saws (32). Trial ‘Tr. 3012:9-3104:8; 3012:9-3197:12; 3250:8-

20 & 32; 3252:19-25; 3253:18-20 & 3254:13-3255:1 (proc-

essing superintendent) & Def. Exhs. 370 & 371A-D, supra

(processing and cooler department 715 charts). At the end

uf the belts there are 34 packaging workers who grab the

pieces of meat with their meat hooks and put them into

bags. Pet. App. 36a.; Def. Exh. 370, supra; Trial Tr. 1337:3-

8. Two rr departments — bones and hamburger

— were located to the side of the processi

860; Def. Exh. 820BD, a.

2. Dangerous Work In A Sanitation-Sensitive

Industry.

Meatpacking work is dangerous work. See Trial Tr.

911:18-912:15; Pl. Exh. 40, Trial Tr. 913:7-914:11. Workers

use razor-sharp knives, operate power saws and use a

variety of cutting tools. See Pl. Exhs. 174 & 175A-F, supra.

As a result, OSHA und IBP require workers to use a wide

array of protective equipment. See Trial Tr. 3618:1-9;

Pl. Exhs. 90-93; Trial Tr. 3589:8-3590:24 & 3618:1-21

_ (Lochner, IBP fresh meat operations head). Failure to use

required mesh aprons and mesh aprons with leggings was

viewed as “life threatening” by IBP, while failure to use a

required mesh glove, Kevlar glove, plexiglas armguard or

required arm protection was viewed as creating a risk of

serious injury.” Trial Tr. 911:18-912:15; Pl. Exh. 40, supra.

* The lines are named chuck, brisket/flank,

arm, rib,

bottom butt and rounds. Exhibit 370, supra. assay

Meatpacking is also subject to strict food safety stan-

dards, particularly after the Jack-in-the-Box hamburger

meat e-coli outbreak in 1993. Trial Tr. 3587:10-14 &

3607:3-3608:3 (Lochner). All class members were required

by the United States Department of Agriculture and IBP

policy to wear a clean outer sanitary garment (with frocks

used in processing and a white shirt in slaughter). Trial Tr.

3587:10-14 & 3594:12-25 (Lochner). In addition, the

protective equipment and tools were required to be clean

when stored in the locker rooms. See Pl. Exh. 48 (IBP

#02643), Trial Tr. 1867:10-12 & 1868:8-12.

5. Required Locker Room Usage.

IBP required workers to store equipment and tools in

the company-provided locker rooms. Pet. App. 39a. There

were four locker rooms, one each for men and women in

the slaughter division and in the processing division. Pet.

App. 39a. All locker rooms were located in non-production

areas far away from the work stations. See, e.g., Pl. Exh.

174, supra. The processing locker rooms were located up

two flights of narrow, crowded stairways. Id.

4. Equipment Usage.

IBP promulgated minimum required equipment lists

for each job classification. See Pet. App. 39a & Pl. Exhs.

90-93, supra. The District Court further held that there

were additional integral and indispensable equipment

items beyond those listed on the required safety equip-

ment lists. See J.A. 34-39.

As a rule, processing knife users - all 578 of them -

were covered from shoulder to knee or ankle with a metal

mesh apron or a metal mesh apron with leggings, metal

mesh sleeves or Kevlar sleeves, a Kevlar glove on the knife

hand, a metal mesh or Kevlar glove on the non-knife hand,

a plexiglas armguard, and a scabbard and chain. See Pet.

App. 40a & Pl. Exhs. 91-92, supra. The metal mesh

equipment is made of chain mail, i.e., interlocked metal

rings similar to that worn by medieval knights. See PI.

Exhs. 120M-P & 120BB, supra. It is heavy. Id. Kevlar is a

modern protective fiber that is puncture resistant. See Pet.

App. 40a; Trial Tr. 3625:7-14 (Lochner). Slaughter knife

users were also required to use mesh aprons, mesh or

Kevlar gloves, and, often, Kevlar sleeves. Pl. Exhs. 90 &

93, supra. Many knife users were required to wear weight

belts, also known as a “comp vest” or “kidney belt.” See

Pet. App. 40a; Pl. Exhs. 90-93, supra; Pl. Exhs. 120Y-Z,

supra. Knife users had steels. See J.A. 36; Pl. Exhs. 120X

& 120AA, supra.

Air knife users and whizard operators typically were

required to use a combination of plexiglas armguards, a

weight belt, rubber gloves, a rubber apron, and, depending

on the particular position, protective gloves and sleeves.

Pl. Exhs. 90-93, supra, J.A. 37-39. Any worker whose work

station was next to a knife, air knife or whizard knife user

was required to use 2 Kevlar sleeves and 2 Kevlar gloves.

Pl. Exhs. 90 (IBP #04008), 92 (IBP #04032), 93 (IBP

#04046). Indeed, clean up workers assigned to a line and

squeegee workers were required to wear mesh aprons,

Kevlar gloves, and Kevlar sleeves because they moved

around the production lines. See Pl. Exhs. 90-93. Packag-

ing workers who bagged meat at the end of the processing

belts used plastic sleeves, as well as meat hooks. J.A. 37;

Trial Tr. 1536:6-8.

Cloth gloves were integral and indispensable in

processing. Pet. App. 59a & J.A. 36. Workers could not grip

safely without clean gloves, i.e., blood and fat made the

grip more difficult and less secure. See Pet. App. 59a. Cold

hands made it more dangerous to use knives, saws and

other types of cutting equipment on the processing floor

which was between 38 and 42 degrees Fahrenheit. Pet.

App. 40a & n. 4 & 59a. Many workers changed their gloves

multiple times a day, using as many as 12 to 16 cotton

gloves. Pet. App. 59a; see Trial Tr. 1269:22-25 (Martinez).

All workers were required to wear a sanitary outer

garment provided by IBP. Pet. App. 39a. All workers,

except for the slaughter gutter job, were required to wear

either safety glasses or a face shield. Pet. App. 39a. All

workers were required to use a hard hat, ear plugs, and a

hair net. Pet. App. 39a. Many workers wore weight belts to

prevent back injuries. Pet. App. 40a. Employees also wore

liquid repelling sleeves, aprons, and leggings, including

yellow plastic sleeves, clear plastic sleeves, clear plastic

leggings and rubber gloves and aprons. Pet. App. 40a.

5. Pre-Production Activities.

Slaughter workers began their workday by picking up

supplies at the supply room, (e.g., clean white shirts,

protective sleeves, plastic sleeves and leggings) and then

went to the locker room, where they retrieved their as-

signed protective equipment, steels, and tools. Pet. App.

40a. Most slaughter employees donned most of their safety

equipment in the locker room. Pet. App. 40a. Straight

knife users retrieved their knives from the knife room or

from severa! distribution points on the slaughter floor. Pet.

App. 40a. Air knife users retrieved their air knives from

the knife room and wiped and washed grease from the air

knives prior to use. See Pet. App. 40a.

Processing workers lined up to get their frocks and

went up to the locker rooms. See Pet. App. 4la. They

obtained safety equipment and tools, which IBP required

to be stored in the lockers. Pet. App. 41a. They also needed

to search for and find their glove pin, a very large safety-

type pin which contained their daily-laundered cotton

gloves, Kevlar gloves and Kevlar sleeves. See Pet. App. 41a

& Trial Tr. 1243:8-15, 1244:20-1243:15, 1246:19-21 &

1250:9-1251:6. In the first shift, the glove pins were

brought into the cafeteria on a line-by-line basis in

sacks which were dumped out on es ters tables. Phe

(Martinez) & J.A. 40. The workers crowded around the

dumped glove pins and sorted through piles to locate their

pin, identified by scratched initials or similar markings.

See id. (Martinez); Pet. App. 53a. During the second shift,

sacks with glove pins were hung and dumped in various

locations throughout the plant, with workers gathering

Boney ‘0 sort through and find their glove pins. See J. A.

Straight knife users needed to sand their steels, a tool

used to straighten the knife edge. See Pet. App. 42a. IBP

provided squares of sandpaper at the knife rooms for this

purpose. See Pet. App. 40a (slaughter); Trial Tr. 1247-21-

1248:13 (processing). Steel sanding averaged 1.829 min-

utes per day. Pet. App. 57a n. 10 & 58a.

Employees were required to be at their work stations

and ready to work on the cow or meat as it arrived on the

chain. Pet. App. 40a.

6. Post-Production Activities.

equipment sinks located on the slaughter floor, where they

hosed down and scrubbed aprons, sleeves, rubber gloves

and boots. Jd. Processing workers lined up at equipment

and washed off their equipment, including scab-

mesh gloves, steels, plastic sleeves, aprons,

it ‘8, scissors and boots. Pet. App. 42a & 57a

(waiting time and .

returned soiled Kevlar gloves, Kevlar sleeves and cotton

See id. Soiled cotton frocks and whites were also returned

to bins. See id. Workers doffed their remaining equipment

upon returning to the locker room. Pet. App. 42a.

7. Gang Time Pay and Time Clock Usage.

Workers were paid on a gang time basis, i.e., the paid

day began when the first cow or carcass started on the

chain and ended when the last cow or carcass started on

the chain. See Pet. App. 36a-37a. Prior to the filing of this

lawsuit, all pre-production, meal break and post-

production work was done without pay. In July 1998, IBP

began paying production line workers for 4 minutes of

“clothes” time. See Pet. App. 39a & 78a.

Workers were required to swipe a time card through

an electronic reader prior to production work and at the

end of production work. See Pet. App. 37a & 47a. IBP

instructed workers to clock in “‘no more than 7 minutes

before your scheduled start time,’” and to clock-out “‘as

you leave your work area.’” See Pet. App. 47a. However,

the workers were not paid based on the time clocks. Pet.

App. 47a.

8. Quantifying Off-the-Clock Work.

Workers arrived 15 to 45 minutes prior to production

in slaughter and 30 to 45 minutes prior to production in

processing. Pet. App. 49a; see Pet. App. 5la. The swipe

card data bolstered this testimony. Pet. App. 51a; Pl. Exh.

179, Trial Tr. 2399:5-2400:12 (clocked in on average 30 to

50 minutes beyond paid workday). Based on this evidence,

the District Court concluded it “could have determined

that the evidence was sufficient to permit a more general-

ized damages calculation,” but opted instead for individu-

alized calculations “because the evidence and testimony

permitted a more discrete determination as to timing by

job descripticn, equipment list, and activities testified to.”

The District Court awarded the following production

Equipment puton: take off:

mesh apron 351 .172

mesh legging apron 897 233

scabbard .264 .172

steel .186

mesh glove 372 113

polar sleeve [Kevlar] 364 081

plexiglas armguard 091 047

one mesh sleeve .307 095

double mesh sleeve 473 .170

rubber apron 492 157

yellow plastic sleeve 171 071

clear plastic sleeve 382 109

rubber glove .196 077

clean cut glove [Kevlar] .123 165

cloth glove .202 .070

weight belt 279 173

clear plastic legging 586 146

Pet. App. 56a-57a.” In addition, the District Court awarded

the following pre-product:.on and post-production walking

and other activity minutes:

kill: process:

locker to work station (each way) .962 1.653

walk to cafeteria to get gloves 1.061

wait and dip scabbard and steel .179 .179

wait for wash 036 .571

wash and clean equipment 1.085 .853

clean and wash knives 307 .307

clean saw 482 .482

sand steel 1.829 1.829

wait and obtain gloves .843

handle equipment 562 .562

Pet. App. 57a-58a.”

Processing division knife users — the largest seg-

ment of the workforce — recovered between approxi-

mately 12 and 14 pre-production and post-production

minutes, including either 3.3 or 4.4 minutes of walking.”

See Pet. App. 57a-58a; Pl. Exhs. 90-93, supra & J.A. 36-42.

_ Processing saw operators recovered approximately 8 to 10

minutes, including 3.3 or 4.4 minutes of walking. The

* The District Court held non-compensable pre-production and

post-production donning and doffing of hard hats, safety glasses, hair

nets, ear plugs, rubber or safety boots, frocks, and whites. See Pet. App.

54a & 56a-57a. These pieces of equipment were held “not integral and

indispensable to the job,” involving de minimis time and/or subject to

the FLSA §3(0), 29 U.S.C. §203(0) exclusion for “clothes changing” at

union plants. Jd.

Getting and obtaining gloves was for processing, not slaughter.

See J.A. 36 & 40. Additional walking to and from the cafeteria to get

gloves was for first shift processing workers only. J.A. 40.

“ All workers with pre-production and post-production minutes

various non-knife users — principally in hamburger and in

packaging — recovered between 6 to 8 minutes, including

3.3 or 44 minutes of walking. Jd. The relatively few

processing workers who did not have compensable equip-

ment, but who were required to go through the glove pin

distribution procedure, recovered between either 1.387

minutes with zero walking time, or 2.448 minutes with

1.061 minutes of walking if they were on the first shift.

J.A. 39 & 40; Pet. App. 57a-58a.

Slaughter straight knife users - 62% of slaughter

workers — recovered between 9 and 10 minutes in pre-

production and post-production damages, including 1.9

minutes of walking time. See Pl. Exhs. 90 & 93, supra &

J.A. 38-39. Air knife and whizard operators recovered

approximately 5% to 6% minutes pre-production and post-

production, including 1.9 minutes of walking time. See Pl.

Exhs. 90 & 93, supra & J.A. 38-39. Slaughter workers did

not recover damages unless they had compensable pieces

of equipment, i.e., required equipment beyond the white

shirt, hard hat, hair net, safety glasses, earplugs and

boots. See J.A. 39-41, see Pet. App. 60a. Approximately 30

of 113 job classifications did not recover damages. See

Exhibits 90 & 93 & J.A. 36-42 (additional equipment

findings); Pet. App. 69a (citing Salter memo).

SUMMARY OF ARGUMENT

Section 4 of the Portal-to-Portal Act (“Portal Act”),

reads very differently than Section 2 of the Act. Section 2

of the Act eliminated an employer’s liabilities for claims

prior to May 14, 1947, except for activities compensable by

either contract or certain customs or practices. 29 U.S.C.

§252(a). It was those claims which, had they not been

“outlawed,” would have created “wholly unexpected

liabilities, immense in amount, and retroactive in opera-

tion.” Steiner v. Mitchell, 350 U.S. 247, 253, 255 (1956).

Section 4 of the Portal Act is a different and far more

nuanced provision.” Section 4 only applies to activities

“which occur either prior to the time on any particular

workday at which such employee commences, or subse-

quent to the time on any particular workday at which he

ceases, such principal activity or activities.” 29 U.S.C.

§254(a) (emphasis added). Congress was thus (a) necessar-

ily contemplating there being more than one principal

activity, and (b) excluding from the reach of Section 4 all

activities within he boundaries created by that provision.

In Steiner, 350 U.S. at 252-53, 256, this Court construed

what is “embraced” within the term “principal activity or

activities.” The combined result of the language and

construction is that post-1947 walking, riding, or traveling

occurring between principal activities is not covered by the

Portal Act.

In Steiner, the Court defined the issue to be decided as

“whether workers in a battery plant must be paid as a part

of their ‘principal’ activities for time incident to changing

clothes at the beginning of the shift.” 350 U.S. at 248. By

giving an affirmative answer to this question, Steiner

established that the clothes changing was a “ ‘principal’

activit[y]” because it was integral and indispensable to a

principal activity.

Plaintiffs’ arguments are buttressed by the interpre-

tive regulations of the Portal Act issued by the Adminis-

trator of the Wage and Hour Division, which were

“ In the context of this case, if Section 2 were analogized to

splitting a carcass in half, Section 4 would be more analogous to

trimming the fat off of a piece of meat.

sss

published in the "ederal Register on November 18, 1947

shortly after the adoption of the Act. All parties to this

appeal agree that Congress in 1949 “ratified” those regula-

tions. The interpretive regulations explain that “workday”

in the Portal Act generally means “the period between the

commencement and completion on the same workday of an

employee’s principal activity or activities.” See 29 C.FR.

§790.6(b). Moreover, that same subsection explains that

the workday “includes all time within the period whether

or not the employee engages in work throughout all of that

period.” Id. Another interpretive provision establishes that

walking, riding or traveling (as well as preliminary or

postliminary activities not specified in §254(a)) are not

covered by the Portal Act unless they take place before or

after the performance of ail of the employee's principal

activities in the workday. 29 C.FR. §790.4. Yet another

interpretive provision makes clear that walking, riding or

traveling in §4(a) does not include “travel from the place of

performance of one principal activity to the place of per-

oy = another” such activity. 29 C.FR. §790.7(c)

ach o ose provisions direct] pports inth

Circuit’s opinion in this case. — ———

The history and purpose of the

strates that for work done after the howe 4 a bared

Congress intended to exclude only walking and some othe:

pre- and post-shift activities that take place before and

after the workday. It is therefore consistent with the

purposes of the Portal Act for walking time during the

workday to be compensable. The Senate Report of the bill

which largely became Section 4 of the Portal Act, defined

the statutory term “workday”:

to mean that period of the workday between the

commencement by the employee, and the termi-

nation by the employee, of the principal activity

16 17

or activities which such employee was employed Plaintiffs’ reading of the “plain meaning” of that

to perform. language is shared by the Secretary of Labor who, after

S. Rep. No. 80-48, p. 47.

Contrary \o petitioner’s argument, the Ninth Circuit’s

interpretation of §254 does not create new liabilities or

windfall payments to employees. Ten years before plain-

tiffs filed this lawsuit, IBP was already in litigation with

the Secretary of Labor in other meat packing facilities on

issues including walking time during the workday. Nor

can paying workers consistently with the plain meaning of

the Portal Act and the Secretary of Labor’s interpretation

of the Portal Act be construed as providing them with a

windfall. To the contrary, including this work as a cost of

business, as Congress intended, brings economic efficiency

and rationality to such activities.

ARGUMENT

A. Plain Meaning Supports Plaintiffs’ Position.

1. §4(a) of the Portal Act.

The plain terms of §4(a) of the Portal Act only exclude

from compensable time those activities which occur before

an employee begins his or her first principal activity or

after the employee ends his or her /ast principal activity.

Section 4(a) excludes from compensable hours worked only

those activities which occur “either prior to the time on

any particular workday at which such employee com-

mences, or subsequent to the time on any particular

workday at which he ceases” his or her principal activities.

It follows, therefore, that any activity occurring between

the employee’s first and last principal activities, including

walking time, is unaffected by the Portal Act.

quoting it, reasoned:

Accordingly, to the extent that activities engaged

in by an employee occur after the employee com-

mences to perform the first principal activity on

a particular workday and before he ceases the

performance of the last principal activity on a

particular workday, the provisions of that section

have no application.

29 C.F.R. §790.6(a).

Several other relevant conclusions can be gleaned

from the plain meaning of 29 U.S.C. §254(a). First, since

that ‘Section repeatedly refers to “principal activity or

activities”, Congress necessarily contemplated that there

may be more than one principal activity. Plaintiffs cannot

improve on the Secretary of Labor’s analysis:

tr The use by Congress of the plural form “ac-

peter in the statute makes it clear that in or-

er for an activity to be a “principal” activity. i

need not be predominant - poe, db. pany

other activities engaged in by the employee in

performing his job; rather, an employee may, for

purposes of the Portal-to-Portal Act be e

2 several “principal” activities during the work-

ay.

29 C.F.R. §790.8(a). This Court should reject any interpre-

tation of §254, which ignores the phrase “or activities” or

would render it superfluous. Duncan v. Walker, 533 U.S.

167, 174 (2001); Bailey v. United States, 516 U.S. 187, 145

(1995) (judges should hesitate to treat as superfluous

statutory terms in any setting).

Secondly, the grammar and structure of §4(a) of the

Portal Act demonstrate that the phrase “which occurs

either prior to the time on any particular workday at

which such employee commences, or subsequent to the

time on which he ceases such principal activity or activi-

ties,” modifies both subsection (a)(1) and (a)(2) of that

section. That too is how the Secretary of Labor has con-

strued the “walking, riding, or traveling” portion of the

statute. 29 C.F.R. §790.4(b)(1), (2). See also Relph v.

Tidewater Construction Corp., 361 F.2d 806, 808-09 (4th

Cir. 1966). Thus, the interpretation of “principal activity

or @ tivities” set forth in Steiner v. Mitchell, 350 U.S. 247,

252, 256 (1955), applies whenever that phrase is used in

§254. See NCUA v. First National Bank, 522 U.S. 479, 501

(1998) (similar language within the same section of a

statute, must be accorded similar meaning); Reno v.

Bossier Parish School Bd., 528 U.S. 320 (2000) (same).

2. “Principal Activity Or Activities.”

This Court’s interpretation of the term “principal

activity or activities” in Steiner v. Mitchell," supra, con-

flicts with both IBP’s argument that donning and doffing

cannot be a principal activity and its argument that plain

meaning precludes analysis of legislative history. Steiner

defined the issue decided therein as “whether workers in a

battery plant must be paid as a part of their ‘principal’

activities for time incident to changing clothes at the

“ While it argued to the Court of Appeals that §254(a)(1) is a

“stand alone” provision (Pet. App. at 18a), IBP now appears to acknowl-

edge that the §254(a)(1) walking time exclusion is limited to walking

“‘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.’” Pet. Br. 15-16

(quoting statute).

“ As held in Rivers v. Roadway Express, 511 U.S. 298, 312-13

(1994), “[a] judicial construction of a statute is an authoritative

statement of what the statute meant before as well as after the decision

of the case giving rise to that construction.” (Footnote omitted).

beginning of the shift.” 350 U.S. at 248. By giving an

affirmative answer to this question, Steiner establishes

that the clothes changing was “ ‘principal’ activit[y].”

While IBP claims that the meaning of “princi

activity” is plain, Steiner held that “[t]he cote

Section 4 is not free from ambiguity and the legislative

history of the Portal-to-Portal Act becomes of importance.”

350 U.S. at 254. The Court not only considered, but

appended to its opinion, excerpts from the legislative

history of the Portal Act which showed that “ ‘(t]he term

“principal activity or activities” includes all activities

which are an integral part thereof.” Steiner, 350 U.S. at

257 (quoting Senator Cooper reading from page 48 of

Senate Report). The Supreme Court in Steiner, using that

legislative history and interpretive regulations of the

Portal Act by the Secretary of Labor, agreed that “the term

‘Principal activity or activities’ in Section 4 embraces all

activities which are ‘an integral and indispensable part of

the principal activities.’” 350 U.S. at 252-53.

IBP’s “plain meaning” argument focuses entirely on

the word “activity” and ignores “or activities.” It cites

Commissioner v. Soliman, 506 U.S. 168, 174 (1993), which

interpreted a statute referring to “‘the principal place of

business for any trade or business of the taxpayer.’” 506

US. at 173 (emphasis added). Since “the principal place”

is singular, this Court looked to the dictionary definition of

“principal” and concluded that the “term ‘principal’ typi-

cally means ‘most important, consequential or influen-

tial.’” 506 U.S. at 174. IBP argues from Soliman:

Thus, an employee's “principal activity” is the

most important or consequential task (or tasks)

the employee was hired to accomplish. As appli-

cable here, the “principal activity” respondents

are “employed to perform” is processing meat

not changing clothes.

Pet. Br. 15. That argument does not work in the present

case even if the term hed not been defined in Steiner

because §254 expressly contemplates several “principal

activities.” There is little point in determining what is the

“most important” activity, when there are several principal

activities. Moreover, this Court has already unanimously

defined the term “principal activity or activities” as includ-

ing “integral and indispensable parts of such activities.”

The meaning of that term has not changed in the past 50

years.

3. The Fair Labor Standards Amendments of

1949, §16(c).

In 1949, Congress “hear|d] from the [Wage and Hour]

Administrator [about] his outstanding interpretation of

the coverage of certain preparatory activities closely

related to the principal activity and indispensable to its

performance.” Steiner, 350 U.S. at 255. Congress then

expressly ratified the Administrator's then-existing

regulations, including the Portal Act §4(a) interpretation.

Fair Labor Standards Amendments of 1949, ch. 736,

§16(c), 63 Stat. 920.

* Section 16(c), as quoted in Steiner, 350 U.S. at 255, n. 8, states:

“Any order, regulations, or interpretation of the Adminis-

trator of the Wage and Hour Division or of the Secretary of

Labor, and any agreement entered into by the Administra-

tor or the secretary, in effect under the provisions of the

Fair Labor Standards Act of 1938, as amended, on the ef-

fective date of this Act, shall remain in effect as an order,

regulation, interpretation, or agreement of the Adminis-

trator or the Secretary, as the case may be, pursuant to

this Act, except to the extent that any such order, regula-

tion, interpretation, or agreement may be inconsistent

with the provisions of this Act, or any from time to time be

amended, modified, or rescinded by the Administrator or

(Continued on following page)

The Secretary of Labor argued to the Court of Appeals

herein that its position, i.e., that the pre-production and

post-production donning, doffing, cleaning and storing

were compensable “integral and necessary” activities, was

“compelled” by “the Secretary's longstanding, published

interpretations of section 4(a) of the Portal Act, which

were ratified by Congress in 1949,” citing Steiner, 350 U.S.

at 255 nn. 8-9 and 63 Stat. 920 (1949). Secretary of Labor

Alvarez v. IBP Court of Appeals Amicus Brief at 8. IBP

also agrees that the Secretary's interpretive regulations

were “adopted shortly after passage of the Portal Act and

subsequently ratified by Congress.” Pet. Br. 31 (emphasis

added). See also Pet. Br. 30. “Ratify” means “to approve or

confirm; especially, to give formal sanction to.” WEBSTER’S

NEW TWENTIETH CENTURY DICTIONARY UNABRIDGED 1496

(2d ed. 1983). As defined in BLACK’s LAW DICTIONARY 1268

(7th ed. 1999), “ratification” means “confirmation and

acceptance of a previous act, thereby making the act valid

from the moment it was done.”

Congress had known since at least this Court’s deci-

sion in Skidmore v. Swift & Co., 328 U.S. 134, 140 (1944),

that, even without Congressional approval, interpretations

by the Wage and Hour Administrator “while not control-

ling on the courts by reason of their authority, do consti-

tute a body of experience and informed judgment to which

courts and litigants may properly resort for guidance.” The

significance of the Administrator’s 1947 interpretive

regulations is heightened because of the 1949 legislation

in which the regulations were ratified by Congress.” In

the Secretary, as the case may be, in accordance with the

provisions of this Act.” 63 Stat. 920.

See also, 29 U.S.C.A. §208 (1998) (Historical and Statutory Notes).

"* All of the interpretive language quoted by plaintiffs was

. . b-

lished in the Federal Register on November 18, 1947 at 12 Federal

(Continued on following page)

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380

(1969), this Court held that “[s]ubsequent legislation

declaring the intent of an earlier statute is entitled to

great weight in statutory construction.” See also Loving v.

United States, 517 U.S. 748, 770 (1996) (same). Here, Con-

gress, in 1949, after being advised about the Administrator’s

Portal Act regulations, ratified those then-existing Portal Act

regulations. It is hardly surprising, therefore, that this Court

specifically relied on 29 C.F.R. §790.8 in Steiner. 350 U.S. at

255 & n. 9. This Court should be loath to interpret §4(a) of

the Portal Act in a way inconsistent with those congression-

ally-sanctioned interpretive regulations.

B. The Administrative Interpretation Of §4 of the

Portal Act Supports Plaintiffs’ Position.

1. The Lower Courts In This Case Correctly

Applied the Portal Act Regulations in Hold-

ing Compensable Post-Donning and Pre-

Doffing Walking.

Both the District Court and the Ninth Circuit relied

on the agency’s interpretive regulations in concluding that

and goes on to explain that:

The interpretations expressed herein are based on stud-

ies of the intent, purpose and interrelationship of the Fair

Labor Standards Act and the Portal Act as evidenced by

their language and legislative history, as well as on deci-

sions of the courts establishing legal principles believed to

be applicable in interpreting the two acts. These inte. preta-

tions have been adopted by the Administrator after due con-

sideration of relevant knowledge and experience gained in

the administration of the Fair Labor Standards Act of 1938

and after consultation with the Solicitor of Labor.

29 C.F.R. §790.1, n. 5. The operative provisions of 29 C.F.R. §790, as it

was published in 1947, are appended to this Brief.

walking time after donning and before doffing was part of

the workday and thus not subject to §4(a) of the Portal Act.

For example, the Ninth Circuit cited 29 C.F.R. §790.6(b) as

—— that the ‘workday’ includes ‘all time within that

peri whether or not the employee engages in work

throughout all of that period.’” Pet. App. 18a. The District

Court reasoned:

The work day begins with the commencement of

an employee's principal activity or activities and

ends with the completion of the employee's activ-

ity; thus, the inclusion of Dr. Mericle’s walking

time as compensable time. 29 C.F.R. §790.6(b).

Protective equipment is integral and indispensa-

ble to the work of employees required to wear

such equipment. Employees who wear protective

equipment begin their day upon donning their

first piece of compensable protective equipment.

This equipment is stored in the employee locker,

as per IBP policy.

Pet. App. 54a. 29 C.F.R. §790.6(b) begins by explaining

what the “workday” means in the Portal Act, stating:

“Workday” as used in the Portal Act means,

in general, the period between the commence-

ment and completion on the same workday of an

employee's principal activity or activities. Jt in-

+ Saget ag within that period whether or not

e te s in k thro

eben. ngage wor. ughout all of

(Emphasis added.) That directly su intiffs’

the Ninth Circuit’s position. —— Bi

IBP’s Brief, at page 31, ignores this more complete

definition of “workday” in 790.6(b) and instead oe

only on what the Secretary characterizes in §790.6(a) as

a rough definition, to wit: “Section 4 of the Portal Act

does not affect the compilation of hours worked within

the ‘workday’ proper, roughly described as the period

‘from whistle to whistle.’” (Emphasis added.) IBP’s only

quotation of §790.6(b) in its “Agency Interpretive Guidance

... ” section is from a sentence in the middle of that

paragraph that “[iJf an employee is required to report at

the actual place of performance of his principal activity at

a certain specific time, his ‘workday’ commences at the

time he reports there.” Pet. Br. 31. That sentence is only a

refinement of the general rule enunciated in the first two

sentences of §790.6(b) quoted above.

IBP backhandedly acknowledges the general rule in

the course of criticizing what it describes as an internal

inconsistency in the Ninth Circuit’s logic:

As a result [of compensating for only “reason-

able” walking time], the judgment effectively

does provide compensation for “discrete periods,”

and is therefore flatly inconsistent with the no-

tion, embodied in the regulation the lower court

cited, id. at 18a, that the workday actually com-

mences with the first integral and indispensable

act, since employees must be paid for all time

“within that [workday] whether or not the em-

ployee engages in work throughout all of that pe-

riod.” 29 C.F.R. §790.6(b).

Pet. Br. 38.

IBP is in effect arguing that the Ninth Circuit followed

§790.6(b) in concluding that walking time after the first

principal activity is not subject to the Portal Act, but failed

to follow that same section by affirming the payment only of

“reasonable” walking time. If IBP were correct, the logic of

its argument would be to increase plaintiffs’ damages, i.e.,

reject the inconsistent portion of the opinion, rather than

to reject the part which follows the regulation. See Pet.

App. 18a. That of course is opposite to the result IBP is

seeking. However, the Ninth Circuit affirmed “reasonable”

walking time not as the standard of “hours worked,” but as

an appropriate reasonable approximation of damages under

Anderson v. Mt. Clemens Pottery, 38 U.S. 680, 688 (1946)

and its progeny:

Rather, the district court — as the Tenth

Circuit did in Reich [v. IBP, 38 F.3d at 1127] - a

compensation measure based on a “reasonable”

quantification of plaintiffs’ work time,

quagmires while directing the parties to indi-

vidualize the damage measure to the extent pos-

sible nevertheless.

Pet. App. 33a. The Ninth Circuit thus rejected plaintiffs’

cross-appeal argument that “reasonable” -time-studied

segments were an improper measurement of damages

eagre —— Pay ne for activities that were not

e or inefficiencies in the uction

and post-production. See, id. wees

2. Additional Portions Of The 1947 Regula-

tions, Ratified by Congress, Support Plain-

tiffs’ and the Secretary of Labor’s Workday

Arguments.

The “Principal activities” subsection of the regula-

tions, ee term ‘principal activities’ includes all

activities which are an integral part of a principal activity.”

29 C.F.R. §790.8(b) (emphasis arte Thus, the District

Court's unchallenged findings that “donning, doffing,

cleaning, and storage of required equipment, safety and

otherwise, [was] integral and indispensable to the workers’

duties as meat processors” (Pet. App. 58a) means that

these activities were “principal activities” under §790.8(b).

To be excluded by §4(a) “‘walking, riding, or traveling’

of the kind described in the statute” must “take place

before or after the performance of all the employee's

‘principal activities’ in the workday.” 29 C.F.R. §790.4(b).

In the present case, however, the District Court made

unchallenged findings that the walking between the locker

and the work station “occurs during the ‘work day.’” Pet.

App. 54a; see id. 40a, 58a & 59a.

Walking is defined as preliminary or postliminary

activity. 29 C.F.R. §790.7(b); see 29 C.F.R. §790.7(f) (walk-

ing would “normally be considered preliminary or postlimi-

nary activities.”) Thus, the limitations on what constitute

“preliminary” or “postliminary” activities also apply te

walking, riding or traveling, which are also treated as

preliminary or postliminary activities. See, e.g., 29 C.F.R.

§790, n. 44. IBP’s contrary argument in the last paragraph

on page 31 of its brief conflicts with 29 C.F.R. §790.7(b).

Petitioner’s Brief, at page 31, quotes part of 29 C.F.R.

§790.7(c), but ignores the language underlined below

which excludes from §4(a) all walking between the first

and last principal activity.

The statutory language and the legislative

history indicate that the “walking, riding, or

traveling” to which section 4(a) refers is that

which occurs, whether on or off the employer’s

premises, in the course of an employee’s ordinary

daily trips between his home or lodging and the

actual place where he does what he is employed

to do. It does not, however, include travel from the

place of performance of one principal activity to

the place of performance of another, nor does it

include travel during the employee’s regular

working hours. ...

29 C.F.R. §790.7(c) (emphasis added). Thus, IBP’s argu-

ment fails because it ignores the rule that travel between

principal activities is compensable.

The sole ambiguity in the regulations comes in

§790.7(g), footnote 49, which states that when clothes

changing and washing is compensable,

[t]his does not necessarily mean, however, that

travel between the ... clothes-changing place

and the actual place of performance of the spe-

cific work the employee is employed to perform,

would be excluded from the type of travel to

which section 4(a) refers.

This footnote recognizes a possibility that some travel

incidental to clothes changing might be within the §4(a)

exclusion. Correspondingly, it also means that other travel

incidental to clothes changing is not subject to §4(a). The

footnote offers no guidance or explanation.

The United States’ amicus brief in Tum, at page 18,

discusses the ambiguity in footnote 49 and concludes:

At most, this passage could be read to reserve

the possibility that there might be some circum-

stances in which the compensability of donning

and doffing would not automatically lead to the

conclusion that associated walking time falls

outside the Portal Act. ...

The United States updates the agency’s 58-year experience

under 29 C.F.R. §790 and footnote 49, as follows: -

in the many years in which the Department has

enforced the FLSA and the Portal Act, it has not

issued any ruling identifying any circumstance in

which such walking would be excluded from

Id. 20. The District Court in its findings, the Secretary in

her Ninth Circuit amicus brief, and the Ninth Circuit saw

no reason to treat the present case as an exception to basic

§4(a) principles set forth in the statute, Steiner and the

regulations.

Footnote 49 is ambiguous and should be analyzed

within the context of 29 C.F.R. §790 as a whole. Courts

“must give substantial deference to an agency's interpreta-

tion of its own regulations.” Thomas Jefferson University v.

Shalala, 512 U.S. 504, 512 (1994); see Auer v. Robbins, 519

U.S. 452, 462 (1997) (deferring to agency’s interpretation

of its regulations as set forth in an amicus brief). Even

apart from the weight of 29 C.F.R. §790, which supports

plaintiffs’ position herein, affirmance is also called for if

the Secretary’s interpretation is given any deference.

IBP and Tum v. Barber Foods, Inc., 360 F.3d 274, 280

(1st Cir. 2004) ignore the full scope of the regulations and

do nc* give the Secretary's interpretation of this ambigu-

ous footnote any deference.

3. The FLSA “Hours Worked” Regulations Sup-

port Treating The Walking In This Case As

Compensable.

As explained in the 1947 regulations, there is a close

relation between the Portal Act and the Fair Labor Stan-

dards Act. 29 C.F.R. §790.2. The Secretary of Labor has

also issued hours worked regulations at 29 C.F.R. §785.

Subsections 785.33-.41 discuss the compensability of

travel time. These regulations were drafted to accommo-

date and be consistent with the Portal Act. See 29 C.F.R.

§785.34. Subsection 785.38 is of particular relevance to

this appeal, stating, in part:

Where an employee is required to report at a

meeting place to receive instructions or to per-

form other work there, or to pick up and to carry

tools, the travel fror the designated place to the

work place is part of the day’s work, and must be

counted as hours worked regardless of contract,

custom or practice. ...

(Emphasis added). Here, the findings of fact establish that

the workers were required by IBP to report to their locker

room to pick up and to carry tools, and to obtain required

protective equipment. See Pet. App. 40a, 41a, 54a, 58a &

59a. Under this regulation, their travel from the locker

room to the processing or slaughter floor “is part of the

day’s work, and must be counted as hours worked.”

C. The Ninth Circuit Properly Applied Steiner.

The District Court found that IBP requires employees

to “store equipment and tools in a company-provided

locker at the end of each shift.” Pet. App. 39a. It found that

slaughter employees “go to the locker room, where they

retrieve their assigned protective equipment, steels, and

tools.” Id. 40a. The District Court also found that process-

ing employees go to their locker room where they “obtain

safety equipment and tonls, which IBP requires be stored

in the lockers, and then proceed to the processing floor.”

Id. 41a. Based on those findings of fact, the District Court

found and concluded, in light of 29 U.S.C. §254(a) and 29

C.F.R. §790.6(b), that:

The work day begins with the commencement of

an employee’s principal activity or activities and

ends with the completion of the employee’s activ-

ity; thus, the inciusion of Dr. Mericle’s walking

time as compensable time. 29 C.F.R. §790.6(b).

Protective equipment is integral and indispensa-

ble to the work of employees required to wear

such equipment. Employees who wear protective

first piece of compensable protective equipment.

This equipment is stored in the employee locker,

as per IBP policy. ...

Id. 54a; see also id. 58a (concluding that “donning, doffing,

cleaning and storage of required equipment, safety and

otherwise, are integral and indispensable to the workers’

duties as meat processors”) & id. 53a (quoting §4(a)).

The Ninth Circuit affirmed the District Court’s analy-

sis:

The district court properly reasoned that the

workday commenced with the performance of a

preliminary activity that was “integral and in-

dispensable” to the work, and the district court

also properly determined that any activity occur-

ring thereafter in the scope and course of em-

ployment was compensable. Thus, the district

court included “the reasonable walking time from

the locker to work station and back ... for em-

ployees required to don and doff compensable

personal protective equipment” in its “com-

pensable” time measure.

Pet. App. 18a (emphasis added.) In so doing, the Ninth

Circuit relied on this Court’s decision in Steiner as well as

29 U.S.C. §254 and 29 C.F.R. §790.6(b). The Ninth Circuit

properly reasoned:

Steiner’s “principal activity” term expressly “em-

braces all activities ... integral and indispensa-

ble” thereto, preliminary or otherwise, 350 U.S.

at 252-53, 76 S.Ct. 330 (internal quotation marks

omitted); the retrieval and donning of protective

equipment are “integral and indispensable” pre-

liminary activities, and, as such, are “em-

brace[d]” by plaintiffs’ “principal [work] activity.”

Id. All activities performed thereafter — such as

“walking” — thus occur during the “principal”

workday and are compensable. Id.; see also 29

C.F.R. §790.6(b) (1999).

Pet. App. 18a. IBP asserts that the Ninth Circuit incor-

rectly reads Steiner as “equating ‘integral and indispensa-

ble’ activities with ‘principal activities.’” Pet. Br. 18. IBP,

however, fails to acknowledge that this Court expressly

agreed with this equation in Steiner:

The Court of Appeals affirmed, likewise holding

that the term “principal activity or activities” in

Section 4 embraces all activities which are “an in-

tegral and indispensable part of the principal ac-

tivities,” and that the activities in question fall

within this category.

With this conclusion, we agree.

350 U.S. at 252-53 (emphasis added; footnote omitted).

IBP makes several arguments as to why this Court

could not have meant what it said. None is persuasive.

IBP first argues that by:

employing the concept of an “integral and indis-

pensable” activity — a concept that does not ap-

pear in Section 4(a) itself — the Court necessarily

recognized that the clothes-changing was not it-

self a principal activity.

Pet. Br. 18. Both parts of that argument are wrong. First,

while the words “integral and indispensable” do not

appear in §4(a), the concept that something which is

integral and indispensable to an activity is part of the

activity follows logically. For example, if batting a baseball

is one of an employee’s principal activities, it follows

logically that batting embraces the activity of picking up a

bat since that is an integral and indispensable activity for

a batter. Secondly, the phrase “integral and indispensable”

repeatedly appears in both the legislative history which

this Court in Steiner appended to its opinion and in the

Secretary of Labor’s interpretive regulations which Con-

gress ratified in 1949. This Court recognized the clothes

changing in Steiner as a principal activity.

IBP next argues that if this Court, in Steiner, equated

integral and indispensable activities with principal

activities, it would have been required to decide such

questions as whether an activity could be an employee's

principal activity even though it occurred in a locker room

rather than on the production line. Jd. at 18-19. However,

both this Court and Congress in the legislative history

attached to this Court’s opinion, knew full well that an

activity could be a principal activity even if not done on

the “production floor.”” Thus, there would have been no

need to answer such a question in Steiner.

Third, IBP refers to this Court’s language in Steiner

that:

We, therefore, conclude that activities per-

formed either before or after the regular work

shift, on or off the production line, are com-

pensable under the portal-to-portal provisions of

the Fair Labor Standards Act if those activities

are an integral and indispensable part of the

principal activities for which covered workmen

are employed and are not specifically excluded by

§4(a)(1).

350 U.S. at 256 (emphasis added). IBP argues that the

emphasized portion of the quote means that the Steiner

Court recognized:

that Section 4(a)(1) continues to place pre- and

post-shift walking time outside the FLSA’s man-

datory compensation requirements even when

such walking occurs between other pre- and post-

shift activities that are subject to mandatory

compensation.

Pet. Br. 19 (footnote omitted). However, that argument is

based on an incorrect reading of §4(a)(1) and Steiner. It

" See, for example, the question and answer between Senators

Barkley and Cooper involving an employee spending half an hour

sharpening and preparing tools prior to the start of production. 350

U.S. at 258-59.

assumes that §4(a)(1) covers all walking time between all

principal activities. Section 4(a)(1) says no such thing.

Rather, $4(a)(1), like §4(a)(2), is limited to certain activi-

ties (walking, riding or traveling), 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.” 29 U.S.C. §254(a). This Court’s

reference to §4(a)(1) in Steiner only underscores that a

party can no longer successfully contend that walking,

riding or traveling to the first principal activity is itself

integral and indispensable to performing that first princi-

pal activity. Accord, 29 C.F.R. §790.4(b\1) and §790.7(b);

see also A.F.L-C.I.0 Tum/Alvarez Amicus Brief 14-15.

At the same time, both the statute and the Secretary’s

regulations do not exclude from compensation a “prelimi-

nary” or “postliminary” activity unless such activity occurs

“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.” 29 U.S.C. §254(a); 29

C.F.R. §§790.6-790.8. Thus, the issue of whether the

walking itself is integral and indispensable is irrelevant.”

Plaintiffs’ position can be illustrated by Mitchell v.

King Packing Co., 350 U.S. 260 (1955). IBP acknowledges

that the holding in King Packing was that “knife sharpen-

ing is a compensable ‘principal’ activity of butchers in [a]

Plaintiffs succeed in this appeal even if walking from one

principal activity to another principal activity is not itself a principal

activity. Neither the District Court nor the Ninth Circuit characterized

the walking itself as a principal activity. Plaintiffs are aware that the

petitioner in Tum has argued in the alternative that the walking in that

case was itself a principal activity. While the Alvarez plaintiffs do not

make that argument, if it is accepted, that would provide a separate

basis for affirming the Ninth Circuit’s decision.

meatpacking plant.” Pet. Br. 17 n. 7 (emphasis added). In

King Packing, knife sharpening waz done by production

workers in a separate “room, equipped by respondent with

an emery wheel and grind stone” prior to or after their

production work. 350 U.S. at 262. Since knife sharpening

was, as IBP admits, a “principal activity,” walking from

the knife sharpening room to the room where the sharp-

ened knives were used to cut meat would not fall within

the confines of 29 U.S.C. §254(a).

D. The Legislative History And Purpose Of The

Portal Act Show That Congress Was Legislating

About Activities Outside Of The Workday And

Was Not Legislating About Periods Within The

Workday, Which The Legislative History Defines.

The Portal Act was prompted by this Court’s decision

in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680

(1946) and the onslaught of litigation following it. See

Carter v. Panama Canal Co., 150 U.S. App. D.C. 198, 463

F.2d 1289 (D.C. Cir. 1972); S. Rep. No. 48, 80th Cong. Ist

Sess. 47 (1947). As this Court recognized in Steiner,

Congress responded very differently to past liabilities

referenced in §2 of the Portal Act, than it did to future

liabilities referenced in §4 of the Portal Act:

On the whole it is clear, we think, that while

Congress intended to outlaw claims prior to 1947

for wages based on all employee activities unless

provided for by contract or custom of the indus-

try, including, of course, activities performed be-

fore or after regular hours of work, it did not

intend to deprive employees of the benefits of the

Fair Labor Standards Act where they are an inte-

gral part of and indispensable to their principal

activities. Had Congress intended the result urged

by petitioner, the very different provisions of §§2

and 4 would have been unnecessary; §2 could

have been given prospective as well as retroac-

tive effect.

350 U.S. at 255-56.

As to future liabilities, the legislative history strongly

supports the conclusion that Congress was carefully and

clearly (a) excluding from the Portal Act activities within

the workday, (b) defining the workday as beginning with

the first principal activity and ending with the last princi-

pal activity, and (c) defining principal activities as includ-

ing all activities which are an integral and indispensable

part of a principal activity.

. Senate Report No. 48, 80th Cong. 1st Sess. 47 (1947),

is particularly instructive because §4 of the Portal Act

largely followed the Senate Bill. Steiner, 350 U.S. at 254.

The Senate Report explained that the rules laid down in

§4(a) related to activities taking place prior to or subse-

quent to the employee’s principal activity or activities. It

also explained that “workday” means:

That period of the workday between the com-

mencement by the employee, and the termina-

tion by the employee, of the principal activity or

activities which such employee was employed to

perform. Section 4 relieves an employer from li-

ability or punishment under the FLSA on ac-

count of the failure of such employer to pay an

employee minimum wages or overtime compen-

sation, for activities of an employee engaged on

or after 1947, if such activities take place outside

of the hours of the employee's workday.

Id. at 46-47 (emphasis added). The Report further ex-

plained that “‘principal activity or activities’ include all

activities which are an integral part thereof,” and reiter-

ates that “the particular time at which the employee

commences his principal activity or activities and ceases

his principal activity or activities mark[] the beginning

and the end of his workday.” S. Rep. No. 48, p. 48. The

Senate Report also pointed out that:

Activities of an employee which take place dur-

ing the workday are ... not affected by this sec-

tion and such activities will continue to be

compensable or not without regard to the provi-

sions of this section.

S. Rep. 80-48, p. 47. Consequently:

Any activity occurring during a workday will

continue to be compensable or not compensable

in accordance with the existing provisions of the

Fair Labor Standards Act.

Id. at 48. The Report was supplemented by remarks from

the bill’s sponsors. For example, Senator Cooper, a princi-

pal sponsor of the bill, explained,

The rules which have already been developed by

the Wage and Hour Administrator and the deci-

sions of the courts still apply to that interval be-

tween the commencement of the employee's

principal activity and the end thereof.

93 Cong. Rec. 2297 (1947). As aptly summarized in the

A.F.L.-C.1.0.’s Tum/Alvarez Amicus Brief at page 11:

In sum, as Senator Wiley put it, “[a]ctivities

performed by an employee during the workday

are not affected in any manner by [§4(a)],” 93

Cong. Rec. 4269, and as the Senate Report ex-

plained, the statutory term “workday” is defined

“to mean that period of the workday between the

commencement by the employee, and the termi-

nation by the employee, of the principal activity

or activities which such employee was employed

to perform,” S. Rep. No. 48, p. 47.

The Administrator’s contemporaneous rvading of the

legislative history and statutory language convinced the

Administra ini tor that one of the two primary Congressional

objectives in enacting Section 4 of the Portal Act was:

(2) To leave in effect, with respect to the

workday proper, the interpretations by the courts

and the Administrator of the requirements of the

Fair Labor Standards Act with regard to the

compensability of activities and time to be in-

cluded in computing hours worked.”

* Senate Report, pp. 46-49; Conference Report,

pp. 12, 13; statements of Senator Donnell, 93

Cong. Rec. 2181, 2182, 2362; statements of Sena-

tor Cooper, 93 Cong. Rec. 2294, 2296, 2297, 2299,

2300; statement of Representative Gwynne, 93

Cong. Rec. 4388; statements of Senator Wiley, 93

Cong. Rec. 2084, 4269-4270.

29 C.F.R. §790.4(a).

IBP’s Brief cites relatively little of this history while

making the unsupported argument that “Congress in-

tended all pre- and post-shift walking to be uncompen-

sated except pursuant to contract, custom or practice.” Pet.

Br. 21 (emphasis in original).” Thus, IBP is arguing that

purpose was to exclude all time spent

walking from one principal activity to another principal

activity so long as such walking was not within the “shift”

as define’ unilaterally by the employer. As demonstrated

by the above-quoted legislative history, Congress intended

no such result.

It is also inaccurate to argue, as does IBP, that:

The Portal Act Superseded This Court’s Interpre-

tations Of The FLSA, Including The Court's

"* Apparently, by pre-shift and post-shift walking referring

to all time when the workers are not cutting meat. soaring

Conclusion That Walking And Traveling Time

Are Compensable.

Pet. Br. 21. As the Court recognized in Steiner, Congress

dealt with pre-1947 liabilities far differently in §2 than

with post-1947 liabilities in §4 of the Portal Act.” IBP

incorrectly equates “shift” with “activities.” It quotes

Senator Cooper as %.»:. ing:

that “clearly and definitely, as to the future, an

employee cannot receive compensation for any

walking, riding, or traveling time to the actual

place of performance where he begins his actual

activities.” 93 Cong. Rec. at 2297 (statement of

Sen. Cooper) (emphasis added). . . .

Pet. Br. 24. However, that statement was accompanied by

Senator Cooper’s explanation that “‘[t]he term’ ‘principal

activity or activities’ ‘includes all activities which are an

integral part thereof’” (giving examples that included pre-

shift activities). 350 U.S. at 257 (legislative history).”

IBP argues:

The purpose and history of the Portal Act

foreclose any claim that Congress mandated com-

pensation for walking that follows compensable

clothes-donning or precedes compensable clothes-

doffing.

Pet. Br. 26. This argument suffers from the same defect.

The touchstone of the non-compensability of walking or

traveling is whether it precedes the first principal activity

or follows the last principal activity. See remarks of

* Surprisingly, IBP does not discuss §2 of the Portal Act or how it

differs from §4 of the same Act.

" IBP at pages 25-26 of its Brief also cites earlier legislative

history in which Senator Cooper proposed language that was not

adopted. That is, of course, less persuasive than his later explanation of

the language that was adopted.

Senator Cooper, 93 Cong. Rec. at 2297. In the context of

this case, walking to the locker room where the first

principal activity takes place is excluded under the Portal

Act, but that exclusion does not apply to walking from one

principal activity (at the locker room) to a second principal

activity. Indeed, the Senate Report gives an example

which necessarily includes compensable walking after the

worker begins his or her first principal activity prior to the

start of “shift,” i.e., production, work:

““2. In the case of a garment worker i

textile mill, who is required to report 80 minutes

before other employees report to commence their

principal activities, and who during such 30

minutes distributes clothing or parts of clothing

at the work benches of other employees and gets

pene pew tat ym pert

; qutiaiites am eat

activities of such employee.’” ” =

Steiner, 350 U.S. at 257 (quoting Senator i

dao Ragest tn Go Gor Ghats hn Panes et ee

Cooper, in quoting the Report, necessarily understood that

the employee's walking from bench-to-bench and machine-

Pant Ae would bo bayend tho seach of Geo Shit)

usion, even the walki i

sochaselenined though alking occurs prior

E. Lower Court Authority Supports Compensation

For Walking and Travel Time Between the First

and Last Principal Activities, Even If Not Pro-

duction Activity.

IBP relies on two lower court cases in which the trial

courts held that walking and travel time did not take

Br. 15 (citing Ralph v. Tidewater Construction Corp., 361

F.2d 806, 808 (4th Cir. 1966), and Carter v. Panama Canal

Co., 463 F.2d 1289 (D.C. Cir. 1972), aff'g, 314 F.Supp. 386

(D.D.C. 1970)). Carter v. Panama Canal Co. involved

locomotive operators who paused to check an assignment

board on the way to their locomotive. 463 F.2d at 1291.

The trial court concluded that:

passing an assignment board and walking 2 to 15

minutes to a locomotive is not an “integral part

of and indispensable to” the principal activity of

operating the locomotive.

314 F.Supp. 386, 391 (D.D.C. 1970). Ralph v. Tidewater

Construction Corp. involved bridge tunnel construction

workers who did no work before “transportation from the

shore to their places of work in the Bay.” 361 F.2d at 808.

Travel prior to the first principal activity and after the last

principal activity is non-compensatle under §4(a)(1). Far

more pertinent, however, are lower court cases in which

the walking or travel occurred between the first and last

principal activity, even though non-production activity.

Reich v. Monfort, Inc., 3 BNA Wage & Hour Cases 2d

1229 (D. Colo. 1996), aff’d, 144 F.3d 1329 (10th Cir. 1998),

is directly on point. It involved unpaid donning, doffing,

and cleaning work by cattle slaughter and processing

employees. The trial court distinguished Carter and held

that walking from the locker room to the work stations and

back was not subject to $4(a)(1) where it occurred between

the first and last principal activities of the workday,

stating:

The defendant contends that walk time

should be excluded under the Portal-to-Portal

Act, 29 U.S.C. §254(a)(1), citing Carter v. Pa-

nama Canal Company, 463 F.2d 1289 (D.C. Cir.

1972). That exclusion is not applicable here. The

walk time from locker room to work stations is

not separable from the time required for waiting

in line at the knife room and the waiting and

washing done at the wash stations on the way

back to the locker rooms. ...

3 BNA Wage & Hour Cases 2d at 1231. The Tenth Circuit

affirmed, with the sole disputed issue being whether the

pre-production and post-production work - with walking

time included — was de minimis. See 144 F.3d at 1333.

In Reich v. IBP, 820 F.Supp. 1315 (D.Kan. 1993)

(liability) (“IBP I”), aff’d, 38 F.3d 1123 (10th Cir. 1994)

(“IBP IT”), on remand 3 BNA Wage & Hour Cases 2d 324

(D.Kan. 1996) (damages) (“JBP IIT”), 3 BNA Wage & Hour

Cases 2d 632 (D.Kan. 1996) (injunction) (“JBP IV”), aff’d

sub nom. Metzler v. IBP, 127 F.3d 959 (10th Cir. 1997)

(damages and injunction) (“JBP V”), the trial court held

that walking time between the knife room and production

floor was not excluded by §4(a)(1) because it occurred

between the first and last principal activities of pre-

production obtaining knives and post-production returning

knives, stating:

[T]he first principal activity for these employees

was to pick up sharpened knives with which to

perform their job on the production line. There-

fore, the knife carrying employees’ workday be-

gan and ended at the knife room because that

was where the first and last principal activity oc-

We thus conclude that the time spent walk-

ing from the knife room to the work station and

back to the knife room was compensable because

it occurred during the workday. For clarity, we

stress that the walk time was not compensable

because the employees were carrying hand tools.

See 29 C.F.R. §790.7(d) (carrying ordinary hand

a principle [sic] activity). Rather, the walk time is

compensable because the workday was already

underway. See 29 U.S.C. §254(a), 29 C.FR.

§§790.6, 790.7. ...

Id. at 1325 (footnote omitted).” In JBP V, the Tenth Circuit

characterized [BP I as follows:

In phase one, the district court found that most

of the activities performed by knife-wielding

workers that related to the donning, doffing and

cleaning of the specialized protective gear, the

exchanging of dull knives for sharp ones, and the

time needed to walk to these activities, were com-

pensable work under the Portal-to-Portal Act of

1947, 29 U.S.C. §§216(b), 251-262. Reich v. IBP,

820 F.Supp. 1315, 1324-28 (D.Kan. 1993)... . We

affirmed the district court in all respects relevant

to this appeal. Reich I, 38 F.3d at 1127-28. ...

29 CFR §§785.38, 790.6, 790.7. Furthermore this

walking and waiting time are an integral and in-

eae time of the employee’s work activi-

Id.

In Amos v. United States, 13 Cl. Ct. 442, 449-50

(1987), prison cook foremen had to retrieve keys, a radio

and a body alarm from a control room before going to the

kitchen. The court held that retrieving these items was the

first principal activity under §4(a) and that walking to the

en was therefore not subject to the §4(a)(1) exclusion,

s :

127 F.3d at 962 (emphasis added). The workers recovered

14 minutes of pre-production and post-production time,

including “three minutes of pre-shift and post-shift com-

pensable walk time.” Jd. at 962-63.

The Secretary of Labor’s 1992 trial brief in JBP / is an

exhibit herein. Pl. Exh. 1056 (Trial Tr. 4046:11-16). The

Secretary argued:

Because putting on and taking off work clothing

and personal protective equipment are part of the

employee’s principal activity, (see Steiner v.

Mitchell, supra; Apperson v. Exxon Corporation, 87

L.C. 48,932 (E.D. CA 1979, copy attached); all

walking and waiting performed in between are also

compensable. See, Apperson v. Exxon Corporation,

supra; Amos v. the United States, 107 L.C. 45,255

... (Ct. Cl. 1987); Dole v. Enduro Plumbing, Inc.,

117 L.C. 47,058 (C.D. Cal. 1990) (copies attached);

* On the facts presented in that trial, the court found that the

workday started at the knife room, rather than the locker room. The

District Court here made a different factual finding. But both courts

agreed that walking is compensable where it occurs between the first

and last non-production principal activity.

(T]he walking time was more than a “prelimi-

nary” or “postliminary” activity under the regula-

tions, 29 CFR §790.7(b), because it was closely

related to and indispensable to the performance

of their principal activity. 29 CFR §790.8(c).

Baylor |v. United States, 198 Ct. Cl. 331

(1972)], Whelan Security (Co. v. United States, 7

Cl. Ct. 496 (1985)], and International Business

Investments, (Inc. v. United States, 11 Cl. Ct. 588

(1987)] although factually distinguishable from

the instant case, in principle support the conclu-

sion reached here. In each of those three cases,

the plaintiffs first had to report to a location

ote an Dats Guty chations in enter to dtain

weapons, whi were items necessary to their

function as guards, prior to proceeding to their

active duty stations. They were not free to take a

route directly to their work places. Similarly,

these plaintiffs must first go to the control room

to obtain items necessary to performance of their

job as cook foremen. ...

Id. at 449-50; see also Barrentine v. Arkansas-Best Freight

Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984) (“principal

activities” is to be construed broadly); Dunlop v. City Elec.,

Inc., 527 F.2d 394, 398 (5th Cir. 1976) (same); Dooley v.

Liberty Mut. Ins. Co., 307 F.Supp.2d 234, 242 (D. Mass.

2004) (same).

As in Monfort and IBP I — and unlike Ralph or Carter

~ the present case involves District Court findings that the

workers engaged in compensable principal activities prior

to and after the walking time at issue. Lower court author-

ity supports treating walking time between the first and

last principal activities (even for non-production activities)

as not being subject to the §4(a)(1) Portal Act exclusion.

F. The District Court and Court of Appeals Walking

Time Ruling Is a Reasonable and Practical

Analysis of the Paid Workday.

IBP argues that an “automatic rule” that any “integral

and indispensable” activity starts the workday would lead

to a host of anomalous results. Pet. Br. 32-39. IBP’s “chief

anomaly” is that walking time “would depend on the

fortuity of where compensable gear happens to be located.”

Pet. Br. 32. However, the location of gear and other sta-

tions of “integral and indispensable” pre-production and

post-production activities is not fortuitous, ie., left to

chance.

IBP knows how to achieve efficiencies when it has to

pay for the workers’ time. It became the world’s largest

supplier of premium beef and pork by creating highly-

efficient disassembly plants that started with cattle and

finished with boxed beef. See Pl. Exh. 47 (IBP #0285-0286),

Trial Tr. 1870:20-25 & 1873:14-19." Yet, prior to its ex-

tended FLSA litigation with the United States Secretary

of Labor in the late 1980s and through the 1990s, see

citations supra, IBP failed to apply principles of efficiency

to pre-production and post-production activities at its

plants. Thus, for the 1986-1988 period, IBP was held liable

for knife users at 11 plants for having to wait in lines at

the knife room, walk to and from the knife room with their

knives pre- and post-shift, walk to equipment sinks post-

production, and then wait in lines at the equipment sinks.

IBP I, 820 F.Supp. at 1325; IBP III, 3 BNA Wage & Hour

Cases 2d at 328; IBP IV, 3 BNA Wage & Hour Cases 2d at

632-33 & n. 1; IBP V, 127 F.3d at 965. These employees

recovered 14 minutes, including 3 minutes of compensable

walking from the knife room to the production floor and

from the production floor to equipment sinks and the knife

room. JBP III, 3 BNA Wage & Hour Cases 2d at 329; JBP

IV, 3 BNA Wage & Hour Cases 2d at 632-33 n. 1; JBP V,

127 F.3d at 962-963. Following the liability findings in

Reich v. IBP, the company “re-engineered” these 11 plants

to eliminate or reduce certain inefficiencies, i.e., changes

in knife distribution and additional equipment washing

sinks. See, IBP III, 3 BNA Wage & Hour Cases 2d at 328;

IBP V, 127 F.3d at 964-65.

This demonstrates that when IBP had to pay for pre-

production and post-production inefficiencies, it applied its

industrial engineering skills to the pre-production and

post-production process and made it more efficient. Pre-

and post-production “integral and indispensable” activities

* IBP describes its success as “Mastering Fractions” — “a fraction

of money here, a fraction there and a fraction elsewhere — small

differences which add up to the BIG DIFFERENCE... .” Pl. Exh. 47

(IBP #02586), supra. That same mastery can be applied to reduce

compensable pre-production and post-production time.

can be efficiently organized and not left to happenstance.

IBP and other employers can apply their industrial engi-

neering skills to reduce the amount of the necessary time

to their benefit and the workers’ benefit. See also, Reich v.

Monfort, supra, 3 BNA Wage & Hour Cases 2d at 1231

(cattle plant compensable wait-to-wash time reduced

during litigation by addition of equipment sinks).

By the time Alvarez was filed, knife distribution had

been somewhat improved at the Pasco plant.” IBP also

added some processing equipment wash sinks in 1998 or

1999.* These changes were the result of applying indus-

trial engineering principles to pre-production and post-

production work. However, there were other inefficiencies

that could also have been easily eliminated, e.g., dumping

large bags of glove pins in the cafeteria. By paying a small

group of workers to deliver glove pins to the work stations,

IBP could eliminate 1.061 minutes of walking time and

0.843 minutes of rooting around through bags and piles of

glove pins for the larger group of processing workers.

Other efficiencies are undoubtedly possible.” Eventually,

IBP may be able to bring full efficiencies to the pre-

production, meal break and post-production activities,

leaving it to pay for only basic donning and doffing of

equipment. Market forces will drive these changes in the

same manner as they have driven the method by which

IBP starts with a cow and ends up with boxed beef and

marketable byproducts.

* Workers could obtain their knives from the knife room or from 4

or 5 bins brought out to the production floor. See Pet. App. 40a.

* Trial Tr. 2998:23-2999:22 (processing superintendent).

* At the time of trial, IBP was working on implementing alterna-

tives to the steels that required maintenance. Trial Tr. 3159:6-3162:20.

IBP requires employees to store equipment and tools

in the locker rooms. Pet. App. 54a. The location of the

locker room is not fortuitous, but rather is part of the

building’s design. Processing shift workers spend several

minutes each day walking up and down two narrow and

crowded flights of stairs to retrieve and store equipment.

While IBP does vt have to pay for the walking time to the

locker at the start of the workday and from the locker at

the end of the workday, donning and doffing of substantial

amounts of equipment and retrieval of tools occurs in

these lockers by the direction of IBP and is part of the

workday. The donning and doffing is integral and indis-

pensable to the employee’s work and thus starts the

workday. If IBP can “reengineer” the location of the locker

rooms or equipment and tool storage, that will shorten the

employee’s workday for the benefit of the employees and

IBP. Neither the amount of work nor the reduction will be

fortuitous.

IBP criticizes the lower court rulines for making pre-

shift and post-shift walking time dependant on a single

piece of equipment, using as its example a plexiglas

armguard that takes 5% seconds to don. Pet. Br. 35. This

example only highlights the weakness in IBP’s argument.

There is not a single job classification in which a plexiglas

armguard user does not also have substantial additional

protective equipment and tools. See Pl. Exhs. 90-93, supra

(minimum safety equipment requirements). The over-

whelming majority of plexiglas armguard users were the

hundreds of knife users who had the full complement of

shoulder to knee or ankle mesh aprons, mesh or Kevlar

sleeves, mesh and/or Kevlar gloves, and related gear. See

id. Thus, the example chosen by IBP bears no relation to

the realities of this litigation.

Equally important, the plexiglas armguard hypotheti-

cal illustrates why compensation is necessary. A plexiglas

armguard reduces the risk of serious injury to the arm and

wrist from an errant razor-sharp knife, a powerful saw or

some other cutting utensil. There could be serious conse-

quences from not using a necessary plexiglas armguard.

Necessary plexiglas armguard use is fairly characterized

as integral and indispensable to principal activity. More-

over, there are time consequences that naturally flow from

use, e.g., needing to go to and from the locker to retrieve

and store the equipment and waiting in line to wash it at

shift’s end.

While it is true that the District Court engaged in line

drawing between compensable and non-compensable

activity, its decision was carefully tailored and did not

produce anomalous situations as IBP contends. All of the

workers started off with required safety/sanitation equip-

ment that must be stored in the lockers — the hard hats,

safety glasses, ear plugs and hair nets. Virtually all of the

workers had tools stored in their lockers without which

they could not do their work (such as meat hooks, scissors

and locks & tags).” Meanwhile, while several dozen

workers in a workforce of slightly less than 1000 may have

had relatively few pieces of equipment held compensable,

the overwhelming majority of slaughter and processing

workers had large amounts of compensable equipment due

to their using or working in proximity to sharp knives and

other dangerous cutting utensils and machinery.

IBP also argues that the District Court and Court of

Appeals rulings will result in undue recordkeeping. Pet.

Br. 36. However, this argument is not supported in the

record and fails to recognize modern options available to

employers. IBP could position swipe card readers or badge

scanners at the points where the first and last principal

* See, e.g., Pl. Exhs. 1000-1021 & 1023-1024 & 1027-1031, 1033-34

& 1039-1047, supra (witness equipment lists); see also Pl. Exhs. 90-93,

supra.

activities occur. It could exercise additional controls to

make sure the paid pre-production and post-production

work is performed as efficiently as the paid production

work. The burden of recordkeeping is far less in the 21st

century.

IBP argues that the variation in work routines pro-

duce an “incongruous disparate effect.” Pet. Br. 34. It uses

the example of employees who go first to their lockers and

then to the supply window and employees who first go to

the supply window and then to their lockers. Id. IBP

argues employees who first go to their lockers “are com-

pensated for traversing the distance between the locker

room and the supply window, even if picking up only non-

compensable items at the supply window, whereas walking

the same distance in the reverse order is not compensable

even if employees pick up compensable items at the supply

window.” Id. These examples have no applicability to the

present case. Workers who are required to get com-

pensable equipment from their lockers are paid for a

straight-line, crow-flies walk from the locker to production

floor, regardless of the manner in which they actually

work, under the reasonable time damage calculations used

herein. See Pet. App. 33a. In essence, the workers herein

are being paid for irreducible core activities. Every worker

with compensable equipment is required to retrieve and

store it in his or her locker and, therefore, in some manner

must walk from the locker to the work station prior to

production and from the work station to the locker after

production. They do not receive extra minutes even if their

path or additional activities would support additional

minutes. Employers who want to comply w:th the law and

* See Suunders v. John Morrell & Co., 1 BNA W

. be & H

2d 879, 883 (N.D. Iowa 1991) (“sophisticated prin at “tena fm

keeping system makes it possible to keep track of small amounts of

neil spent donning, doffing and washing equipment at slaughter

remain competitive can obtain the same benefit as the

District Court’s damage award gave IBP by exercising

control over the timing and sequence of pre-production

and post-production compensable activities in the same

manner that they control other compensable work time,

i.e., structure it as efficiently as possible.

The Court of Appeals ruling does not threaten to

inundate industry with enormous or unforeseen liabilities.

Indeed, the litigation over the past 15 years has been

concentrated in the meatpacking industry because of the

combination of two factors — (1) compensation based on

gang time and (2) substantial pre- and post-production

work due to safety and sanitation exigencies. The meat

packing industry has been aware of these issues for more

than 15 years and, therefore, it is not facing unforeseen

liabilities. The issue before this Court — walking time

between the first and last principal activity — is a manage-

able matter even in the context of the meatpacking indus-

try and involves liabilities within the control of the

employers to reduce or even eliminate.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be affirmed.

Respectfully submitted,

WILLIAM RUTZICK* Davir N. MARK

KATHRYN GOATER LAW OFFICE OF DAVID N. MARK

SCHROETER, GOLDMARK 810 Third Avenue #500

& BENDER Seattle, WA 98104

810 Third Avenue #500 (206) 340-1840

Seattle, WA 98104

(206) 622-8000

Counsel for Respondents

August 1, 2005 *Counsel of Record

App. 1

APPENDIX A

26 U.S.C. § 254. Relief from liability and punish-

ment under the Fair Labor Stan-

dards Act of 1938, the Walsh-Healey

Act, and the Bacon-Davis Act for

failure to pay minimum wage or

overtime compensation

(a) Activities not compensable

Except as provided in subsection (b) of this section, no

employer shall be subject to any liability or punishment

under the Fair Labor Standards Act of 1938, as amended

[29 U.S.C.A. § 201 et seq.], the Walsh-Healey Act [41

U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C.A.

§ 276a et seq.], on account of the failure of such employer

to pay an employee minimum wages, or to pay an em-

ployee overtime compensation, for or on account of any of

the following activities of such employee engaged in on or

after May 14, 1947 —

(1) walking, riding, or traveling to and from

the actual place of performance of the principal

activity or activities which such employee is em-

ployed to perform, and

(2) activities which are preliminary to or

a to said principal activity or activi-

es,

which occur either prior to the time on any particular

workday at which such employee commences, or subse-

quent to the time on any particular workday at which he

ceases, such principal activity or activities. For purposes

of this subsection, the use of an employer’s vehicle for

travel by an employee and activities performed by an

employee which are incidental to the use of such vehicle

App. 2

for commuting shall not be considered part of the em-

ployee’s principal activities if the use of such vehicle for

travel is within the normal commuting area for the em-

ployer’s business or establishment and the use of the

employer’s vehicle is subject to an agreement on the part

of the employer and the employee or representative of

such employee.

App. 3

APPENDIX B

Part 790, General Statement As To The Portal-To-

Portal Act Of 1947 On The Fair Labor Standards Act

Of 1938, Signed By Administrator, Wage And Hour

Division, On November 12, 1947 And Published In

The Federal Register On November 18, 1947. 12 Fed.

Reg., pp. 7655-7669 (1947)

GENERAL

§ 790.1 Introductory statement.

(a) The Portal-to-Portal Act of 1947 was approved

May 14, 1947.’ It contains provisions which, in certain

circumstances, affect the rights and liabilities of employ-

ees and employers with regard to alleged underpayments

of minimum or overtime wages under the provisions of the

Fair Labor Standards Act of 1938,’ the Walsh-Healey

Public Contracts Act, and the Bacon-Davis Act. The Portal

Act also establishes time limitations for the bringing of

certain actions under these three acts, limits the jurisdic-

tion of the courts with respect to certain claims, and in

other respects affects employee suits and proceedings

under these acts.

‘ An act to relieve employers from certain liabilities and punish-

ments under the Fair Labor Standards Act of 1938, as amended, the

Walsh-Healey Act, and the Bacon-Davis Act, and for other purposes.

Public Law No. 49, 80th Cong., chapter 52, 1st sess.

* 52 Stat. 1060; as amended; 29 U.S.C. 201 et seq. In the Fair

Labor Standards Act, the Congress exercised its power over interstate

commerce to establish basic standards with respect to minimum and

overtime wages and to bar from interstate commerce goods in the

production of which these standards were not observed. For the nature

of liabilities under this act, see footnote 17.

App. 4

(b) It is the purpose of this part to outline and

explain the major provisions of the Portal Act as they

affect the application to employers and employees of the

provisions of the Fair Labor Standards Act. The effect of

the Portal Act in relation to the Walsh-Healey Act and the

Bacon-Davis Act is not within the scope of this part, and is

not discussed herein. Many of the provisions of the Portal

Act do not apply to claims or liabilities arising out of

activities engaged in after the enactment of the act. These

provisions are not discussed at length herein,’ because the

primary purpose of this part is to indicate the effect of the

Portal Act upon the future administration and enforce-

ment of the Fair Labor Standards Act, with which the

Administrator of the Wage and Hour Division is charged

under the law. The discussion of the Portal Act in this part

is therefore directed principally to those provisions that

have to do with the application of the Fair Labor Stan-

dards Act on or after May 14, 1947.

Act, like the correctness of an interpretation of the Fair

Labor Standards Act, can be determined finally and

authoritatively only by the courts. It is necessary, however,

for the Administrator to reach informed conclusions as to

the meaning of the law in order to enable him to carry out

his statutory duties of administration and enforcement. It

would seem desirable also that he make these conclusions

* Sections 790.23 through 790.29 of this part discuss briefly those

provisions of the Portal Act which affect the operation or enforcement of

the Fair Labor Standards Act only with respect to activities engaged in

by employees before May 14, 1947. Since the so-called “good faith

defense” against past claims is considered incidentally in the discussion

of the similar provision for the future, no separate discussion of this

provision is included in these sections.

App. 5

known to persons affected by the law.‘ Accordingly, as in

the case of the interpretative bulletins previously issued

on various provisions of the Fair Labor Standards Act, the

interpretations set forth herein are intended to indicate

the construction of the law which the Administrator

believes to be correct’ and which will guide him in the

performance of his administrative duties under the Fair

Labor Standards Act, unless and until he is directed

otherwise by authoritative rulings of the courts or con-

cludes, upon reexamination of an interpretation, that it is

incorrect. As the Supreme Court has pointed out, such

interpretations provide a practical guide to employers and

employees as to how the office representing the public

interest in enforcement of the law will seek to apply it.’ As

has been the case in the past with respect to other inter-

pretative bulletins, the Administrator will receive and

consider statements suggesting change of any interpreta-

tion contained herein.

* See Skidmore v. Swift & Co., 323 U.S. 134; Kirschba

Walling, 316 U. S. 517; Portal-to-Portal Act, sec. 10. patie an

. * The interpretations expressed herein are based on studies of the

intent, purpose, and interrelationship of the Fair Labor Standards Act

and the Portal Act as evidenced by their language and legislative

history, as well as on decisions of the courts establishing legal principles

believed to be applicable in interpreting the two acts. These interpreta-

tions have been adopted by the Administrator after due consideration of

cc take Sootete den ied ual ars aie on ae

air of 1938 and after consultati i

Solicitor of Labor. ee

* Skidmore v. Swift & Co., 323 U.S. 134. See also Roland Electrical

Co. v. Walling, 326 U.S. 657; United States v. American Trucking Assn.,

310 U.S. 534; Overnight Motor Transp. Co. v. Missel, 316 U.S. 572.

App. 6

§ 790.2 Imterrelationship of the two acts.

(a) The effect on the Fair Labor Standards Act of

the various provisions of the Portal Act must necessarily

be determined by viewing the two acts as interelated

parts of the entire statutory scheme for the establish-

ment of basic fair labor standards.’ The Portal Act

contemplates that employers will be relieved, in certain

circumstances, from liabilities or punishments to which

they might otherwise be subject under the Fair Labor

Standards Act.* But the act makes no express change in

the national policy, declared by Congress in section 2 of

the Fair Labor Standards Act, of eliminating labor

conditions “detrimental to the maintenance of the mini-

mum standard of living necessary for health, efficiency,

and general well-being of workers.” The legislative history

indicates that the Portal Act was not intended to change

this general policy.” The Congressional declaration of

” As appears more fully in the following sections of this part, the

several provisions of the Portal Act relate, in pertinent part, to actions,

causes of action, liabilities, or punishments based on the nonpayment

by employers to their employees of minimum or overtime wages under

the provisions of the Fair Labor Standards Act. Section 13 of the Portal

Act provides that the terms, “employer,” “employee,” and “wage", when

used in the Portal Act, in relation to the Fair Labor Standards Act, have

the same meaning as when used in the latter act.

* Portal Act, sections 1, 2, 4, 6, 9, 10, 11, 12.

Sponsors of the legislation asserted that the provisions of the

Portal Act do not deprive any person of a contract right or other right

which he may have under the common law or under a State statute. See

colloquy between Senators Donnell, Hatch and Ferguson, 1947 Cong.

Rec. 2168; colloquy between Senators Donnell and Ferguson, 1947

Cong. Rec. 2198; statement of Representative Gwynne, 1947 Cong. Rec.

1614.

* See references to this policy at page 5 of the Senate Committee

Report on the bill (Senate Rept. 48, 80th Cong., Ist sess.), and in

(Continued on following page)

App. 7

policy in section 1 or the Portal Act is explicitly directed

to the meeting of the existing emergency and the correc-

tion, both retroactively and prospectively, of existing

evils referred to therein.” Sponsors of the legislation in

both Houses of Congress asserted that it “in no way

repeals the minimum wage requirements and the over-

time compensation requirements of the Fair Labor

Standards Act” that it “protects the legitimate claims”

under that act,” and that one of the objectives of the

sponsors was to “preserve to the worker the rights he

has gained under the Fair Labor Standards Act.” It

would therefore appear that the Congress did not intend

by the Portal Act to change the general rule that the

remedial provisions of the Fair Labor Standards Act are

statement of Senator Donnell, 1947 Cong. Rec. 2251; see also statement

of Senator Morse, 1947 Cong. Rec. 2349; statement of Representati

Walter, 1947 Cong. Rec. 4514. rats

Cf. House Rept. No. 71; Senate Rept. No. 48; House (Conf.

No. 326, 80th Cong., 1st sess. cna ty kenalog op tates

Senate Report, and Conference Report); statement of Representative

Michener, 1947 Cong. Rec. 4516; statement of Senator Wiley, 1947 Cong.

Rec. 4398; statement of Representative Gwynne, 1947 Cong. Rec. 1629;

statements of Senator Donnell, 1947 Cong. Rec. 2204-2206; 2251-2252;

statement of Representative Robsion, 1947 Cong. Rec. 1553; Message of

the President to Congress, May 14, 1947 on approval of the act.

" Statements of Senator Wiley, explaining the conference agree-

ment to the Senate, 1947 Cong. Rec. 4398 and 4501. See also statement

of Senator Cooper, 1947 Cong. Rec. 2373; statement of Representative

Robsion, 1947 Cong. Rec. 1553.

* Statement of Representative Michener, explaining the conference

agreement to the House of Representatives, 1947 Cong. Rec. 4516. See

also statement of Representative Keating, 1947 Cong. Rec. 1566.

” Statement of Senator Cooper, 1947 Cong. Rec. 2378; see also

statements of Senator Donnell, 1947 Cong. Rec. 2439, 2440, 2442,

yn of Representatives Walter and Robsion, 1947 Cong. Rec.

App. 8

to be given a liberal interpretation” and exemptions

therefrom are to be narrowly construed and limited to

those who can meet the burden of showing that they

come “plainly and unmistakably within (the) terms and

spirit” of such an exemption.”

(b) It is clear from the legislative history of the

Portal Act that the major provisions of the Fair Labor

Standards Act remain in full force and effect, although the

application of some of them is effected in certain respects

by the 1947 Act. The provisions of the Portal Act do not

directly affect the provisions of section 15(a)(1) of the Fair

Labor Standards Act banning shipments in interstate

commerce of “hot” goods produced by employees not paid

in accordance with the act’s requirements, or the provi-

sions of section 11(c) requiring employers to keep records

in accordance with the regulations prescribed by the

Administrator. The Portal Act does not affect in any way

the provision in section 15(a)(3) banning discrimination

against employees who assert their rights under the Fair

Labor Standards Act, or the provisions of section 12(a) of

the act banning from interstate commerce goods produced

in establishments in or about which oppressive child labor

is employed. The effect of the Portal Act in relation to the

minimum and overtime wage requirements of the Fair

Labor Standards Act is considered in herein in connection

with the discussion of specific provisions of the 1947 Act.

“ Roland Electrical Co. v. Walling, 326 U.S. 657; United States v.

Rosenwasser, 323 U.S. 360; Brooklyn Savings Bank v. O'Neil, 324 U.S. 697.

“ See A.H. Phillips Co. v. Walling, 324 U.S. 490; Walling v. General

Industries Co., 67 S. Ct. 883.

App. 9

§ 790.4 Liability of employer; effect of contract,

custom, or practice.

(a) Section 4 of the Portal Act, quoted above,

applies to situations where an employee, on or after May

14, 1947, has engaged in activities of the kind described

in this section and has not been paid for or on account of

these activities in accordance with the statutory stan-

dards established by the Fair Labor Standards Act.”

Where, in these circumstances, such activities are not

compensable by contract, custom, or practice as de-

scribed in section 4, this section relieves the employer

from certain liabilities or punishments to which he

might otherwise be subject under the provisions of the

Fair Labor Standards Act.” The primary Congressional

objectives in enacting section 4 of the Portal Act, as

disclosed by the statutory language and legislative

history were: (1) To minimize uncertainty as to the

liabilities of employers which it was felt might arise in

The Fair Labor Standards Act requires payment of a minimum

wage of not less than 40 cents an hour for all hours worked (except to

certain learners, apprentices, handicapped workers, and messengers,

and in certain industries in Puerto Rico and the Virgin Islands), and

overtime compensation for all hours in excess of 40 in a workweek at a

rate not less than one and one-half times the employee’s regular rate of

pay.

" The failure of an employer to compensate employees subject to

the Fair Labor Standards Act in accordance with its minimum wage

and overtime requirements makes him liable to them for the amount of

their unpaid minimum wages and unpaid overtime compensation,

together with an additional equal amount (subject to section 11 of the

Portal-to-Portal Act, discussed below in § 790.22) as liquidated damages

(section 16(b) of the act); and, if his act or omission is willful, subjects

him to criminal penalties (section 16(a) of the act). Civil actions for

injunction can be brought by the Administrator (sections 11(a) and 17 of

the act).

App. 10

the future if the compensability under the Fair Labor

Standards Act of such preliminary or postliminary

activities should continue to be tested solely by existing

criteria” for determining compensable worktime, inde-

pendently of contract, custom, or practice; and (2) To

leave in effect, with respect to the workday proper, the

interpretations by the courts and the Administrator of

the requirements of the Fair Labor Standards Act with

regard to the compensability of activities and time to be

included in computing hours worked.”

(b) Under section 4 of the Portal Act, an employer

who fails to pay an employee minimum wages or overtime

compensation for or on account of activities engaged in by

such employee is relieved from liability or punishment

* Employees subject to the minimum and overtime wage provi-

sions of the Fair Labor Standards Act have been held to be entitled to

compensation in accordance with the statutory standards, regardless of

contrary custom or contract, for all time spent during the workweek in

“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” (Tennessee Coal Iron & R.R.

Co. v. Muscoda Local, 321 U.S. 590, 598), as well as for all time spent in

active or inactive duties which such employees are engaged to perform

(Armour & Co. v. Wantock, 323 U.S. 126, 132-134; Skidmore v. Swift &

Co., 323, U.S. 134, 136-137).

* Portal Act, section 1; Senate Report, pp. 41, 42, 46-49; Confer-

ence Report, pp. 12, 13; statements of Senator Wiley, 1947 Cong. Rec.

4154, 4398; statements of Senator Donnell, 1947 Cong. Rec. 2159, 2192,

2193, 2255, 2256, 2440, 2441; statements of Senator Cooper, 1947 Cong

Rec. 2370-2377.

*® Senate Report, pp. 46-49; Conference Report, pp. 12, 13; state-

ments of Senator Donnell, 1947 Cong. Rec. 2255, 2256, 2440; state-

ments of Senator Cooper, 1947 Cong. Rec. 2371, 2374, 2375, 2376-2377,

2378; statement of Representative Gwynne, 1947 Cong. Rec. 4513;

statements of Senator Wiley, 1947, Cong. Rec. 2154, 4398.

App. 11

therefor if, and only if, such activities meet the following

three tests:

(1) They constitute “walking, riding, or traveling” of

the kind described in the statute, or other activities

“preliminary” or “postliminary” to the “principal activity or

activities” which the employee is employed to perform; and

(2) They take place before or after the performance

of all the employee’s “principal activities” in the workday;

and

(3) They are not compensable, during the portion of

the day when they are engaged in, by virtue of any con-

tract, custom, or practice of the kind described in the

statute.

relieves an employer of liability or punishment only with

respect to activities of the kind described, which have not

been made compensable by a contract or by a custom or

practice (not inconsistent with a contract) at the place of

employment, in effect at the time the activities are per-

formed. The statute states that “the employer shall not be

so relieved” if such activities are so compensable;” it does

not matter in such a situation that they are so-called

‘ portal-to-portal” activities.”

Accordingly, an employer who fails to take such

activities into account in paying compensation to an

* Section 4(b) of the act (quoted in § 790.3).

* Conference Report, pp. 12, 13; colloquy between Senators Donnell

and Hawkes, 1947 Cong. Rec. 2255-2256; colloquy between Senators

Cooper and Mcrath, 1947 Cong. Rec. 2376; Cf. colloquy between Senators

Donnell and Hawkes, 1947 Cong. Rec. 2253.

App. 12

employee who is subject to the Fair Labor Standards Act is

not protected from liability or punishment in either of the

following situations.

(1) Where, at the time such activities are performed

there is a contract, whether written or not, in effect

between the employer and the employee (or the employee's

agent or collective-bargaining representative), and by an

express provision of this contract the activities are to be

paid for;” or

(2) Where, at the time such activities are performed,

there is in effect at the place of employment a custom or

practice to pay for such activities, and this custom or

practice is not inconsistent with any applicable contract

between such parties.”

In applying these principles, it should be kept in mind that

under the provisions of section 4(c) of the Portal-to-Portal

Act, “preliminary” or “postliminary” activities which take

place outside the workday “before the morning whistle” or

“after the evening whistle” are, for purposes of the statute,

not to be considered compensable by a contract, custom or

practice if such contract, custom or practice makes them

compensable only during some other portion of the day.”

* Statements of Senator Donnell, 1947, Cong. Rec. 2253, 2255,

2256; statements of Senator Cooper, 1947 Cong. Rec. 2374, 2376.

* Statements of Senator Donnell, 1947 Cong. Rec. 2255, 2256.

* Conference Report, pp. 12, 13. See also § 790.12.

App. 13

§ 790.56 Effect of Portal-to-Portal Act on deter-

mination of hours worked.

(a) In the application of the minimum wage and

overtime compensation provisions of the Fair Labor

Standards Act to activities of employees on or after May

14, 1947, the determination of hours worked is affected

by the Portal Act only to the extent stated in section

4(d). This section requires that:

*** in determining the time for which an employer

employs an employee with respect to walking, riding, travel-

ing or other preliminary or postliminary activities described

(in section 4(a)) there shall be counted all that time, but only

that time, during which the employee engages in aay such

activity which is compensable (under contract, custom, or

practice within the meaning of section 4(b), (c)).

This provision is thus limited to the determination of

whether time spent in such “preliminary” or “postlimi-

nary” activities, performed before or after the employee’s

“principal activities” for the workday” must be included or

excluded in computing time worked.” If time spent in such

an activity would be time worked within the meaning of

the Fair Labor Standards Act if the Portal Act had not been

enacted,” then the question whether it is to be included or

excluded in computing hours worked under the law as

changed by this provision depends on the compensability of

* The full text of section 4 of the act is set forth in § 790.3.

* See § 709.6.

Section 4(d) makes plain that subsections (b) and (c) of section 4

likewise apply only to such activities.

* Conference Report, p. 13.

* See footnote 18.

App. 14

the activity under the relevant contract, custom, or prac-

tice applicable to the employment. Time occupied by such

an activity is to be excluded in computing the time worked

if, when the employee is so engaged, the activity is not

compensable by a contract, custom, or practice within the

meaning of section 4; otherwise it must be included as

worktime in calculating minimum or overtime wages due.”

Employers are not relieved of liability for the payment of

minimum wages or overtime compensation for any time

during which an employee engages in such activities thus

compensable by contract, custom, or practice.” But where,

apart from the Portal Act, time spent in such an activity

would not be time worked within the meaning of the Fair

Labor Standards Act, although made compensable by

contract, custom, or practice, such compensability will not

make it time worked under section 4(d) of the Portal Act.

(b) The operation of section 4(d) may be illustrated

by the common situation of underground miners who

spend time in traveling between the portal of the mine and

the working face at the beginning and end of each work-

day. Before enactment of the Portal Act, time thus spent

constituted hours worked. Under the law as changed by

the Portal Act, if there is a contract between the employer

and the miners calling for payment for all or a part of this

travel, or if there is a custom or practice to the same effect

of the kind described in section 4, the employer is still

required to count as hours worked, for purposes of the Fair

Labor Standards Act, all of the time spent in the travel

* See Conference Report, pp. 10, 13.

" Conference Report, p. 10.

App. 15

which is so made compensable.” But if there is no such

contract, custom, or practice, such time will be excluded in

computing worktime for purposes of the act. And under

the provisions of section 4(c) of the Portal Act,” if a con-

tract, custom, or practice of the kind described makes such

travel compensable only during the portion of the day

before the miners arrive at the working face and not

during the portion of the day when they return from the

working face to the portal of the mine, the only time spent

in such travel which the employer is required to count as

hours worked will be the time spent in traveling from the

portal to the working face at the beginning of the workday.

§ 790.6 Periods within the “workday” unaffected.

(a) Section 4 of the Portal Act does not affect the

computation of hours worked within the “workday”

proper, roughly described as the period “from whistle to

whistle,” and its provisions have nothing to do with the

compensability under the Fair Labor Standards Act of

any activities engaged in by an employee during that

period.” Under the provisions of section 4, one of the

" Cf. colloquies between Senators Donnell

and Hawkes, 1947

Cong. Rec. 2253, 2255, 2256; colloquy between Senators Ellender and

Cooper, 1947 Cong. Rec. 2374; colloquy between Senators McGrath and

Cooper, 1947 Cong. Rec. 2376. See also Senate Report, p. 48.

* See §§ 790.3 and 790.12; Conference

*. “— Report pp. 12, 13. See also

“ The report of the Senate Judiciary Committee states

“Activities of an employee which take place during the workday are

not affected by this section (section 4 of the Portal-to-Portal Act, as

finally enacted) and such activities will continue to be compensable or

not without regard to the provisions of this section.”

App. 16

conditions that must be present before “preliminary” or

“postliminary” activities are excluded from hours

worked is that they “occur either prior to the time on

any particular workday at which the employee com-

mences, or subsequent to the time on any particular

workday at which he ceases” the principal activity or

activities which he is employed to perform. Accordingly,

to the extent that activities engaged in by an employee

occur after the employee commences to perform the first

principal activity on a particular workday and before he

ceases the performance of the last principal activity on a

particular workday, the provisions of that section have

no application. Periods of time between the commence-

ment of the employee’s first principal activity and the

completion of his last principal activity on any workday

must be included in the computation of hours worked to

the same extent as would be required if the Portal Act

had not been enacted.” The principles for determining

hours worked within the “workday” proper will continue

to be those established under the Fair Labor Standards

Act without reference to the Portal Act,” which is

* See Senate Report, pp. 47, 48; Conference Report, p. 12; state-

ment of Senator Wiley, explaining the conference agreement to the

Senate, 1947 Cong. Rec. 4398 (also 2154, 2155); statement of Represen-

tative Gwynne, explaining the conference agreement to the House of

Representatives, 1947 Cong. Rec. 4513; statements of Senator Cooper,

1947 Cong. Rec. 2371, 2374-2377; statements of Senator Donnell, 1947

Cong. Rec. 2255, 2256, 2440.

* See, in this connection, statements of Senator Cooper, 1947

Cong. Rec. 2373-2374, 2376-2377; statements of Senator Donnell, 1947

Cong. Rec. 2255-2256, 2440; statement of Senator Wiley, explaining the

coiiference agreement to the Senate, 1947 Cong. Rec. 4398. See also

footnote 18.

(Continued on following page)

App. 17

concerned with this question only as it relates to time

spent outside the “workday” in activities of the kind

described in section 4.”

(b) “Workday” as used in the Portal Act means, in

general, the period between the commencement and

completion on the same workday of an employee’s princi-

a Se It includes all time within that

peri whether or not the employee engages in work

throughout all of that period. For example, a rest period or

a lunch period is part of the “workday”, and section 4 of

the Portal Act therefore plays no part in determining

whether such a period, under the particular circumstances

presented, is or is not compensable, or whether it should

be included in the computation of hours worked.” If an

employee is required to report at the actual place of

performance of his principal activity at a certain specific

time, his “workday” commences at the time he reports

there for work in accordance with the employer’s require-

ment, even though through a cause beyond the employee’s

control, he is not able to commence performance of his

productive activities until a later time. In such a situation

the time spent waiting for work would be part of the

The determination of hours worked under the Fair Labor Stan-

dards Act is the subject of a separate interpretative bulletin, No. 13,

which will be republished in revised from as Part 785 of this chapter.

See statement of Senator Wiley explaining the conference

agreement to the Senate, 1947 Cong. Rec. 4398. See discussion

in §§ 790.7 and 790.8. =

* Senate Report, pp. 47, 48. Cf. statement of Sena i

S§ . 47, 48. Cf. tor Wiley

explaining the conference agreement to the Senate, 1947 Cong. Rec.

4398; statements of Senator Donnell, 1947 Cong. Rec. 2440; statements

of Senator Cooper, 1947 Cong. Rec. 2375-76.

App. 18

workday,” and section 4 of the Portal Act would not affect

its inclusion in hours worked for purposes of the Fair

Labor Standards Act.

§ 790.7. “Preliminary” and “postliminary” activities.

(a) Since section 4 of the Portal Act applies only to

situations where employees engage in “preliminary” or

“postliminary” activities outside the workday proper, it

is necessary to consider what activities fall within this

description. The fact that an employee devotes some of

his time to an activity of this type is, however, not a

sufficient reason for disregarding the time devoted to

such activity in computing hours worked. If such time

would otherwise be counted as time worked under the

Fair Labor Standards Act, section 4 may not change the

situation. Whether such time must be counted or may be

disregard [sic], and whether the relief from liability or

punishment afforded by section 4 of the Portal Act is

available to the employer in such a situation will depend

on the compensability of the activity under contract,

custom, or practice within the meaning of that section.“

On the other hand, the criteria described in the Portal

Act have no bearing on the compensability or the status

as worktime under the Fair Labor Standards Act of

activities that are not “preliminary” or “postliminary”

* Colloquy between Senators Cooper and McGrath, 1947 Cong.

Rec. 2375, 2376.

“ See Conference Report. pp. 10, 12, 13; statements of Senator

Donnell, 1947 Cong. Rec. 2253, 2255, 2256; statements of Senator

Cooper, 1947 Cong. Rec. 2374, 2376. See also §§ 790.4 and 790.5.

App. 19

activities outside the workday.“ And even where there is

a contract, custom, or practice to pay for time spent in

such a “preliminary” or “postliminary” activity, section

4(d) of the Portal Act does not make such time hours

worked under the Fair Labor Standards Act if it would

not be so counted under the latter Act alone.”

(b) The words “preliminary activity” mean an activ-

ity engaged in by an employee before the commencement

of his “principal” activity or activities, and the words

“postliminary activity” means an activity engaged in by an

employee after the completion of his “principal” activity or

activities. No categorical list of “preliminary” and

“postliminary” activities except those named in the Act can

be made, since activities which under one set of circum-

stances may be “preliminary” or “postliminary” activities,

may under other conditions be “principal” activities. The

following “preliminary” or “postliminary” activities are

expressly mentioned in the Act: “Walking, riding, or

traveling to or from the actual place of performance of the

principal activity or activities which (the) employee is

employed to perform.”

history indicate that the “walking, riding or traveling” to

which section 4(a) refers is that which occurs, whether on

- See Conference Report, p. 12; Senate Report, pp. 47, 48; state-

ment of Senator Wiley, explaining the conference agreement to the

Senate, a+ 4 Cong. Rec. 4398; statement of Representative Gwynne,

explaining conference agreement to the House of ta

1947 Cong. Rec. 4513. See also § 790.6. er

“ See § 790.5(a).

“ Portal Act, subsections 4(a), 4(d). See also Conference Report, p.

13; statement of Senator Donnell, 1947 Cong. Rec. 2255, 2440.

App. 20

or off the employer’s premises, in the course of an em-

ployee’s ordinary daily trips between his home or lodging

and the actual place where he does what he is employed to

do. It does not, however, include travel from the place of

performance of one principal activity to the place of per-

formance of another, nor does it include travel during the

employee’s regular working hours.“ For example, travel by

a repairman from one place where he performs repair

work to another such place, or travel by a messenger

delivering messages, is not the kind of “walking, riding or

traveling” described in section 4(a). Also, where an em-

ployee travels outside his regular working hours at the

direction and on the business of his employer, the travel

would not ordinarily be “walking, riding, or traveling” of

the type referred to in section 4(a). One example would be

a traveling employee whose duties require him to travel

from town to town outside his regular working hours;

another would be an employee who has gone home after

completing his day’s work but is subsequently called out at

night to travel a substantial distance and perform an

emergency job for one of his employer’s customers.” In

“ These conclusions are supported by the limitation, “to and from

the actual place of performance of the principal activity or activities

which (the) employee is employed to perform,” which follows the term

“walking, riding or traveling” in section 4(a), and by the additional

limitation applicable to all “preliminary” and “postliminary” activities

to the effect that the Act may affect them only if they occur “prior to” or

“subsequent to” the workday. See, in this connection, the statements of

Senator Donnell, 1947 Cong. Rec. 2192, 2255, 2256, 2441; statement of

Senator Cooper, 1947 Cong. Rec. 2374. See also Senate Report, pp. 47,

48.

“ The Report of the Senate Judiciary Committee (p. 48) empha-

sized that this section of the act “does not attempt to cover by specific

language the many thousands of situations that do not readily fall

within the pattern of the ordinary workday.”

App. 21

situations such as these, where an employee’s travel is not

of the kind to which section 4(a) of the Portal Act refers,

the question whether the travel time is to be counted as

worktime under the Fair Labor Standards Act will con-

tinue to be determined by principles established under

this act, without reference to the Portal Act.“

(d) An employee who walks, rides or otherwise

travels while performing active duties is not engaged in

the activities described in section 4(a). An illustration of

such travel would be the carrying by a logger of a portable

power saw or other heavy equipment (as distinguished

from ordinary hand tools) on his trip into the woods to the

cutting area. In such a situation, the walking, riding, or

traveling is not segreable from the simultaneous perform-

ance of his assigned work (the carrying of the equipment,

etc.) and it does not constitute travel “to and from the

actual place of performance” of the principal activities he

is employed to perform.”

(e) The report of the Senate Committee on the

Judiciary (p. 47) describes the travel affected by the

statute as “Walking, riding, or traveling to and from the

actual place of performance of the principal activity or

activities within the employer’s plant, mine, building, or

“ .

These principles will be discussed in Part 785 of this chapter

which will replace Interpre’ **+ive Bulletin No. 13.

“ Senator Cooper, after explaining that the activiti

referred to include activities which are an aioe rane’ “principal”

activity (Senate Report, pp. 47, 48), that is, those which “are indispen-

sable to the performance of the productive work,” summarized this

provision as it appeared in the Senate Bill by stating: “We have clearly

eliminated from compensation walking, traveling, riding, and other

activities which are not an integral part of the employment for which

the worker is employed.” (Emphasis supplied.) 1947 Cong. Rec. 2377.

App. 22

other place of employment, irrespective of whether such

walking, riding, or traveling occur on or off the premises of

the employer or before or after the employee has checked

in or out.” The phrase, “actual place of performance,” as

used in section 4(a), thus emphasizes that the ordinary

travel at the beginning and end of the workday to which

this section relates includes the employee's travel on the

employer’s premises until he reaches his workbench or

other place where he commences the performance of the

principal activity or activities, and the return travel from

that place at the end of the workday. However, where an

employee performs his principal activity at various places

(common examples would be a telephone lineman, a

“trouble-shooter” in a manufacturing plant, a meter

reader, or an exterminator) the travel between those

places is not travel of the nature described in this section,

and the Portal Act has no significance in determining

whether the travel time should be counted as time worked.

(f) Examples of walking, riding, or traveling which

may be performed outside the workday and would nor-

mally be considered “preliminary” or “postliminary”

activities are (1) walking or riding by an employee be-

tween the plant gate and the employee’s lathe, workbench

or other actual place of performance of his principal

activity or activities; (2) riding on buses between a town

and an outlying mine or factory where the employee is

employed; and (3) riding on buses or trains from a logging

camp to a particular site at which the logging operations

are actually being conducted.“

“ See Senate Report, p. 47; statements of Senator Donnell, 1947

Cong. Rec. 2192, 2255, 2441.

——— ee

App. 23

(g) Other types of activities which may be performed

outside the workday and, when performed under the

conditions normally present, would be considered “pre-

liminary” or “postliminary” activities, include checking in

and out and waiting in line to do so, changing clothes,

washing up or showering, and waiting in line to receive

pay checks.“

. (h) As indicated above, an activity which is a “pre-

liminary” or “postliminary” activity under one set of

circumstances may be a principal activity under other

conditions.” This may be illustrated by the following

example: Waiting before the time established for the

commencement of work would be regarded as a prelimi-

nary activity when the employee voluntarily arrives at his

place of employment earlier than he is either required or

expected to arrive. Where, however, an employee is re-

quired by his employer to report at a particular hour at his

workbench or other place where he performs his principal

activity, if the employee is there at that hour ready and

willing to work but for some reason beyond his control

there is no work for him to perform until some time has

elapsed, waiting for work would be an integral part of the

“ See Senate Report p. 47. Washing up after work, like

changing of clothes, may in certain situations be so 7 Reorey Boch

the specific work the employee is employed to perform that it would be

regarded as an integral part of the employee’s “principal activity”. See

colloquy between Senators Cooper and McGrath, 1947 Cong. Rec. 2375.

See also paragraph (h) of this section and § 790.8(c). This does not

necessarily mean, however, that travel between the washroom or

clothes-changing place and the actual place of performance of the

specific work the employee is employed to perform, would be excluded

from the type of travel to which section 4(a) refers.

” See paragraph (b) of this section. See also footnote 49.

App. 24

employee’s principal activities.” The difference in the two

situations is that in the second the employee was engaged

to wait while in the first the employee waited to be en-

gaged.”

§ 790.8 “Principal” activities.

(a) An employer’s liabilities and obligations under

the Fair Labor Standards Act with respect to the “prin-

cipal” activities his employees are employed to perform

are not changed in any way by section 4 of the Portal

Act, and time devoted to such activities must be taken

into account in computing hours worked to the same

extent as it would if the Portal Act had not been en-

acted.” But before it can be determined whether an

activity is “preliminary or postliminary to (the) principal

activity or activities” which the employee is employed to

perform, it is generally necessary to determine what are

such “principal” activities.”

The use by Congress of the plural form “activities” in

the statute makes it clear that in order for an activity to

* Colloquy between Senators Cooper and McGrath, 1947 Cong.

Rec. 2375-6.

® See Skidmore v. Swift & Co., 323 U.S. 134, 7 WHR 1165.

* See §§ 790.4 *hrough 790.6; also Part 785 of this chapter, which

will replace Interpretative Bulletin No. 13 as a statement of the

principles for determining hours worked under the Fair Labor Stan-

dards Act.

“ Although certain “preliminary” and “postliminary” activities are

expressly mentioned in the statute (see § 790.7(b)), they are described

with reference to the place where principal activities are performed.

Even as to these activities, therefore, identification of certain other

activities as “principal” activities is necessary.

App. 25

be a “principal” activity, it need not be predominant in

some way over all other activities engaged in by the

employee in performing his job; rather, an employee may,

for purposes of the Portal-to-Portal Act be engaged in

several “principal” activities during the workday. The

“Principal” activities referred to in the statute are activi-

ties which the employee is “employed to perform’”.” they do

not include noncompensable “walking, riding, or traveling”

of the type referred to in section 4 of the act.” Several

guides to determine what constitute “principal activities”

was suggested in the legislative debates. One of the

members of the conference committee stated to the House

of Representatives that “the realities of industrial life,”

rather than arbitrary standards, “are intended to be

applied in defining the term ‘principal activity or activi-

ties’,” and that these words should “be interpreted with

due regard to generally established compensation prac-

tices in the particular industry and trade.™ The legisla-

tive history further indicates that Congress intended the

words “principal activities” to be construed liberally in the

light of the foregoing principles to include any work of

consequence performed for an employer, no matter when the

work is performed.” A majority member of the committee

“ Cf. Edward F. Allison Co., Inc. v. Commissi

. + Inc. v. Commissio ternal

Revenue, 63 F. (2d) 553 (C.C.A. 8, 1933). asteoins,

“ Cf. Armour & Co. v. Wantock, 323 U.S :

. Vv. S. 126, 132-134; Skidmore

v. Swift & Co., 323 U.S. 134, 136-137. —

See statement of Senator Cooper, 1947 Cong. Rec. 2374.

“ Remarks of Representatives Walter, 1947 Cong

b . Rec. 4515. See

also statements of Senator Cooper, 1947 Cong. Rec. 2375, 2377.

” See statements of Senator Cooper 1947 Cong

» . Rec. 2374-2377.

See also Senate Report, p. 48, and the President’s message to Congress

on approval of the Portal Act, May 14, 1947.

App. 26

which introduced this language into the bill explained to

the Senate that it was considered “sufficiently broad to

embrace within its terms such activities as are indispen-

sable to the performance of productive work.”

(b) The term “principal activities” includes all

activities which are an integral part of a principal activ-

ity.” Two examples of what is meant by an integral part of

a principal activity are found in the Report of the Judici-

ary Committee of the Senate on the Portal-to-Portal Bill.”

They are the following:

(1) In connection with the operation of a lathe an

employee will frequently at the commencement of his

workday oil, grease or clean his machine, or install a new

cutting tool. Such activities are an integral part of the

principal activity, and are included within such term.

(2) In the case of a garment worker in a textile mill,

who is required to report 30 minutes before other employ-

ees report to commence their principal activities, and who

during such 30 minutes distributes clothing or parts of

clothing at the workbenches of other employees and gets

machines in readiness for operation by other employees,

such activities are among the principal activities of such

employee.

” See statement of Senator Cooper, 1947 Cong. Rec. 2377.

* Senate Report, p. 48; statements of Senator Cooper, 1947 Cong.

Rec. 2375-2377.

® As stated in the Conference Report (p. 12), by Representative

Gwynne in the House of Representatives (1947 Cong. Rec. 4513) and by

Senator Wiley in the Senate (1947 Cong. Rec. 4501), the language of the

provision here involved follows that of the Senate bill.

App. 27

Such preparatory activities, which the Administrator has

always regarded as work and as compensable under the

Fair Labor Standards Act, remain so under the Portal Act,

regardless of contrary custom or contract.”

of a principal activity are those closely related activities

which are indispensable to its performance.“ If an em-

ployee in a chemical plant, for example, cannot perform

his principal activities without putting on certain clothes,”

changing clothes on the employer’s premises at the begin-

ning and end of the workday would be an integral part of

the employee’s principal activity.” On the other hand, if

changing clothes is merely a convenience to the employee

and not directly related to his principal activities, it would

be considered as a “preliminary” or “postliminary” activity

“ Statement of Senator Cooper, 1947 Cong. Rec. 2375; colloquy

between Senators Barkley and Cooper, 1947 Cong. Rec. 2428. The fact

that a period of 30 minutes was mentioned in the second example given

by the committee does not mean that a different rule would apply

where such preparatory activities take less time to perform. In a

colloquy between Senators McGrath and Cooper, 1947 Cong. Rec. 2375,

Senator Cooper stated that “There was no definite purpose in using the

words ‘30 minutes’ instead of 15 or 10 minutes or 5 minutes or any

other number of minutes.” In reply to questions, he indicated that any

amount of time spent in preparatory activities of the types referred to

in the examples would be regarded as a part of the employee’s principal

activity and within the compensable workday. Cf. Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 693.

“ See statements of Senator Cooper, 1947 Cong. Rec. 2375, 2377;

colloquy between Senators Barkley and Cooper, 1947 Cong. Rec. 2428.

“ Such a situation may exist where the changing of clothes on the

employer’s premises is required by law, by rules of the employer, or by

the nature of the work. See footnote 49.

“ See colloquy between Senators Cooper and McGrath, 1947 Cong

Rec. 2375. 7

App. 28

rather than a principal part of the activity.” However,

activities such as checking in and out and waiting in line

to do so would not ordinarily be regarded as integral parts

of the principal activity or activities.”

1947

” See Senate Report, p. 47; statements of Senator Donnell,

Cong. Rec. 2383, 2440; statements of Senator Cooper, 1947 Cong. Rec.

2374, 2375.

App. 29

APPENDIX C

Part 785 and Title 29 of the Code of Federal Regula-

tions provides, in relevant part:

Subpart B - Principles For Determination Of Hours

Worked

§ 785.9

(a) The Portal-to-Portal Act. The Portal-to-Portal

Act (secs. 1-13, 61 Stat. 84-89, 29 U.S.C. 251-262)

eliminates from working time certain travel and walk-

ing time and other similar “preliminary” and “postlimi-

nary” activities performed “prior” or “subsequent” to the

“workday” that are not made compensable by contract,

custom, or practice. It should be noted that “prelimi-

nary” activities do not include “principal” activities. See

$§ 790.6 to 790.8 of this chapter. Section 4 of the Portal-

to-Portal Act does not affect the computation of hours

worked within the “workday”. “Workday” in general,

means the period between “the time on any particular

workday at which such employee commences (his)

principal activity or activities” and “the time on any

particular workday at which he ceases such principal

activity or activities.” The “workday” may thus be longer

than the employee’s scheduled shift, hours, tour of duty,

or time on the production line. Also, its duration may

vary from day to day depending upon when the em-

ployee commences or ceases his “principal” activities.

With respect to time spent in any “preliminary” or

“postliminary” activity compensable by contract, custom,

or practice, the Portal-to-Portal Act requires that such

time must also be counted for purposes of the Fair Labor

Standards Act. There are, however, limitations on this

requirement. The “preliminary” or “postliminary” activity

Statutory exemptions.

App. 30

in question must be engaged in during the portion of the

day with respect to which it is made compensable by the

contract, custom, or practice. Also, only the amount of

time allowed by the contract or under the custom or

practice is required to be counted. If, for example, the

time allowed is 15 minutes but the activity takes 25

minutes, the time to be added to other working time

would be limited to 15 minutes. (Galvin v. National

Biscuit Co., 82 F.Supp. 535 (S.D.N.Y. 1949) appeal

dismissed, 177 F. 2d 963 (C.A. 2, 1949))

(b) Section 3(0) of the Fair Labor Standards Act.

Section 3(0) gives statutory effect, as explained in

§ 785.26, to the exclusion from measured working time of

certain clothes-changing and washing time at the begin-

ning or the end of the workday by the parties to collective

bargaining agreements.

Subpart C - Application Of Principles

§ 785.24 Principles noted in Portal-to-Portal Bulletin.

In November, 1947, the Administrator issued the

Portal-to-Portal Bulletin (part 790 of this chapter). In

dealing with this subject, § 790.8(b) and (c) of this

chapter said:

(b) The term “principal activities” includes all activi-

ties which are an integral part of a principal activity. Two

examples of what is meant by an integral part of a princi-

pal activity are found in the report of the Judiciary Com-

mittee of the Senate on the Portal-to-Portal bill. They are

the following:

(1) In connection with the operation of a lathe, an

employee will frequently, at the commencement of

App. 31

his workday, oil, grease, or clean his machine, or

install a new cutting tool. Such activities are an

integral part of the principal activity, and are in-

cluded within such term.

(2) In the case of a garment worker in a textile

mill, who is required to report 30 minutes before

other employees report to commence their prin-

cipal activities, and who during such 30 minutes

distributes clothing or parts of clothing at the

workbenches of other employees and gets ma-

chines in readiness for operation by other em-

ployees, such activities are among the principal

activities of such employee.

Such preparatory activities, which the Administrator has

always regarded as work and as compensable under the

Fair Labor Standards Act, remain so under the Portal Act,

regardless of contrary custom or contract.

of a principal activity are those closely related activities

which are indispensable to its performance. If an employee

in a chemical plant, for example, cannot perform his

principal activities without putting on certain clothes,

changing clothes on the employer’s premises at the begin-

ning and end of the workday would be an integral part of

the employee’s principal activity. On the other hand, if

changing clothes is merely a convenience to the employee

and not directly related to his principal activities, it would

be considered as a “preliminary’ or “postliminary” activity

rather than a principal part of the activity. However,

activities such as checking in and out and waiting in line

to do so would not ordinarily be regarded as integral parts

of the principal activity or activities.

App. 32

Traveltime

§ 785.33 General.

The principles which apply in determining whether or

not time spent in travel is working tim » depend upon the

kind of travel involved. The subjec. is discussed in

§§ 785.35 to 785.41, which are preceded by a brief discus-

sion in § 785.34 of the Portal-to-Portal Act as it applies to

traveltime.

§ 785.34 Effect of section 4 of the Portal-to-Portal Act.

The Portal Act provides in section 4(a) that except

as provided in subsection (b) no employer shall be liable

for the failure to pay the minimum wage or overtime

compensation for time spent in “walking, riding, or

traveling to and from the actual place of performance of

the principal activity or activities which such employee

is employed to perform 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.”

Subsection (b) provides that the employer shall not be

relieved from liability if the activity is compensable by

express contract or by custom or practice not inconsis-

tent with an express contract. Thus traveltime at the

commencement or cessation of the workday which was

originally considered as working time under the Fair

Labor Standards Act (such as underground trave! in

mines or walking from time clock to work-bench) need

not be counted as working time unless it is compensable

by contract, custom or practice. If compensable by express

contract or by custom or practice not inconsistent with an

express contract, such traveltime must be counted in

App. 33

computing hours worked. However, ordinary travel from

home to work (see § 785.35) need not be counted as

hours worked even if the employer agrees to pay for it.

(See Tennessee Coal, Iron & RR. Co. v. Muscoda Local

321 U.S. 590 (1946); Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 690 (1946); Walling v. Anaconda Copper

Mining Co., 66 F. Supp. 913 (D. Mont. (1946).)

§ 785.38 Travel that is all in the day’s work.

. Time spent by an employee in travel as part of his

principal activity, such as travel from job site to job site

during the workday, must be counted as hours worked.

Where an employee is required to report at a meeting

place to receive instructions or to perform other work

there, or to pick up and to carry tools, the travel from

the designated place to the work place is part of the

day's work, and must be counted as hours worked

regardless of contract, custom, or practice. If an em-

ployee normally finishes his work on the premises at 5

p.m. and is sent to another job which he finishes at 8

p.m. and is required to return to his employer’s prem-

ises arriving at 9 p.m., all of the time is working time.

However, if the employee goes home instead of returning

to his employer’s premises, the travel after 8 p.m. is

home-to-work travel and is not hours worked. (Walling v.

Mid-Continent Pipe Line Co., 143 F. 2d 308 (C

1944)) eer

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.