Brief Amicus Curiae — Bay Ridge Operating Co. v. Aaron

Supreme Court brief1948

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oo. INTHE ye ee

- supreme Court of the Binite Stas

3 ie ‘Ocrosus Tans, 1947,

~ ‘Bay Rivor OrrnaTina Co,, Inc., Petitioner, .

noe , : a NGer | Le |

.- Jamzs Aanox, er al., Respondents. %,

eek: Hunox ‘Sravmonmre Corr., Petitioner, .

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Lo Briv, wr Any Respondent, : “#: 4

= : ; : ‘> =

___ MOTION FOR LEAVE E TO FILE AND BRIEF OF THE

WATERFRONT EMPLOYERS ASSOCIATION OF a ‘ oe |

a See ee

Perec

vas A acetees 4

Aoi Be. oe re .

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. 3 as 2

2 ~

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tee : ae - Warmmrsows Eperiovins ‘Agsoourion 09” ; Bas

arte \ THE. Pactric Coast , - : oe Fe rae

Ss Gaercory A. FEapnison: J 7

By 111 Sutter Street ~.

San Franeisco, California

river

‘ ae ; 4 n, D.. C. Bee

pee to tg Attorneys ae + aaa Se

e Summary o OF Paces, PESTS - ies re 3 cateliee—o

_ Sumaaryior Arcumeyt’...... RS éesbanes weeeecesees 5,

AnjuMENT .. Kabiews vies weeeesnecsevee’ on Saveus we

~ ConeéLusion *....: wees gies odeiees . Sa tactydussecsa: Se

ae nes CITATIONS. Boe

Cases? 3

Addison v. Holly Hill Fruit Products, Ine, 399. DUS.

Oe ade ah ey Ca hen Cie reas cues i eek ccd suck aces 10

Bunting v. Oregow, 243 Ria Wc ME os xs sca cha van 12, 13

Jewel Ridge Coal. Corp. v. Local No. 6167, , S.°

a Gates: ee:

UB IT oe AEST i ae i te ia %

Walling. Wartlsckiabes Ss 325, U. Ss. 427. 8,11

. Walling v. Helmerich & Payne; Inc.,.323 VU. S. 37.. ‘8 11

Walling 2 oungerman-Reynolds Hardwood Co., 325,

io Be og EO Er ee ee +. 8, 11

Wilson v. Rousseau, 4 Howard 646, 680". v.. PE tet: Wey

. Statutes: |

Eight-Hour Law ME Bias Sah de ce ehae cused 10

Fair Labor Standards Ket . Levene oth, 8, 6x7, 8 9.

a Sone l 11, 22, 13, 20

Labs Manageme? Relations Act. 7 ere 9

+ National Labor Relations’ Act .........-.. es a

Te rrr Leereeee sa ia

Portal-to-Portal 2: Gerenee ee! 6, 9, pa * 22

:% ia ee KNEE. @.: hey = - “4 oe

. ; e nie F pas ties / .

aan rot Index ee RE ee

: a Sta SS

° “Mext. Books and Publications: a ae Sah Aa ey

“% Bulletin No. 283, ureau of Labor Statistics. eaten is 26

Employment in quefacturing, 1899- 1939, Solomon

PR ai ick gh vk oie oaks ARE DN ER EKO Cus as / 98.

History of the Shipbuilding Leber Ad etacead Board

1917-1919, W illiam E. Hotchkiss and Henry. -R. .

on 9 eR a aes Oia tenes eRe e eles Sveerece sss. 26 ee

‘ Industrial Demacracy; Sidne and: Beatrice Webb. .

~ Industrial Relations in the Building Indus ry, wil

NE SEE ss 50 5 ca cca dSaks-ceabasgcawanes ct

- . Interpretatiye Bulletin No? 4 Wane & Hear Division. “P

“ . Labor and Social Organization, Richard®A. Lester

.. .. and David: A. McCabe ........ vet et aeh tnek id os ‘S

' . Labor Problems, Professor T. S. Adams and Helen L.

| MO: EE San ava peer eb eeSE AR SY OA 01008 widows 24

_ Monthly*Labor Review, October 1947 aR Se 14

Peace Along the Shore, Survey, Angee 2, 1920, B. M.:

: PIO BR oi eked sien: akrkkssous 32

- » Shorter Hours, 1932, Marion C. Cahill. .........; "12, 27

The Collective Labor Agreement, Elias Liberman.. 27

The International Molders’ Union, F. Te Stockton. i, 29.

The Printers, George E. Barnett ..... a ee - 24..

| What’s What in- the Labor Movement, Waldo R.

“Browne. .....-::+.++. ween estes stees Ganssthis. ae

“Miscellaneous; See one Caaeeaya ee

82 Cong: Rees p. 1990 pices Sh is kins od piace ginua ela’ 5 2 8

- Hearings -before Sub-Committee No. 4 ofthe House \

Committee on Education and Labor....:........ » 22

H. Rep. 1452, 75th = ‘Sess. Feaakecka engueaes.t oe

. Journal of Commerce SNE rere Eee eros, See

-. *. New York Herald- Tribune - Pesan eeniwee ava rs ds ely Ody OF

’ . New York __ eS aererS Speer ee eA eb aStee.

se RU ND dco awwne eas Sevens cies culate eke 32, 34 -

J Reports of the Industrial Feiiaien: on Labor Or- :

ae ganizations, Labor Disputes and Arbitration... .26, 27,

; 29, 30, 31

Reports of. the’ Industrial Cornniséion on the Rela- >

{ions and Conditions of Capital.and Labor...:.: °30—

‘Sen. Rep. 884, 75th. Cong., Ist Sess.........0....5 «8

. . Transcript of Proceedings before National Long-

ae aeeeen’s Board, 1934 « pets ned seands ee (OOM 37

IN Tue ay

+ Supreme Court of the Anited siates

s ee 1947, : i nee :

| Rear Ves 3 “Nosy $66-367, ,

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; Bay Ruwee. OPERATENG. Co., Ixc., Petitioner, —

ne oe or get A

ye “ 5 ’ bin ae pg ;

JAMES AARON, ET AL., Respondents, .

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Hvron Sreveporine Corpr., Petitioner, x

. Vv.

Fae as

LrEo Buvr, ET AL.; paepenaents.

Pasi > ",

MOTION OF THE WATERFRONT ek coviis, ASSO.

- CIATION OF THE PACIFIC COAST FOR LEAVE

TO FILE A BRIEF ASAMICUSCURIAE.

| The undersigned, as ‘attorneys for’ WwW aterfront’ Ein |.

“i ploy ers ‘Association “GE the ‘Pacific Coast, respectfully. niove. -.

eS this. Honorable Court for permission to file the attached,

| brief on behalf of the Waterfront Employers, Association

| - of the Pacific Coast as Amicus Curiae in support of peti-

» —_ tioners’. position. in the above-entitled cases. eM,

- - Counsel for pet¥tioners ‘herein has consented to the :

_ filing of this brief. Counsel for the as has refused

- to grant consent. a i

Waterfront Eaployers Assoviation of the Pacific | Leask

referred to herein as the 5 Association, is a non-

rats aes ‘ : a4 eee °

{ ae is

: ne \ ge

‘

«€

5 ae

profit corporation. ina and. exiting setes the laws of”

_ the State .of. California, - representing its members in

: matters» ‘of collective bargaining with’ Jabor organiza-

tions acting for longshoremen and other shoreside workers | °

in the shipping ‘industry on the. Pacific’ Coast and, as such, | 7 og

ais party. to numerous labor contracts containin; provisions’ ,

4 “concerning wages and hours similar‘ to those | involved im

"|. the above: entitled cases, :

7 Sixty-three. suits are pending i in the United States Dis! yo

‘trict Courts in and for, the 3 “|

gon, Northern -California’> and ‘manus California on—

behalf of about 14 claimants against members of the’ s

Employer Associat®n i in which contentions are.made simi- |

lar to those made/by. respondents i in said ‘cases now pend- ,;

ing in this Court, and decision of which will turn” upon *

questions of law to be determinedcher¢in by this Court.

‘The Employer. Association on behalf of its members is

_party to" labor, agreements affecti1 =

; 5. “twenty thousand workers on the

Pacific Coast: by the ferms of. whi¢h/ agreements either

party .may eancdl, should the contentio ons of sais made oY ee

respondents herein be upheld. / /.

_ This motion: is based ‘upen_the- foregoing ground’ aa

he additional matters. set forth 1 in the eee brief.

"W. Respeetfully snbinitted, ee 6 Ae

ace eee ea Warenrnont EMpLoyers Association’ oF Wiooe

Fs er I oe THE. Paetric Coast, .

By Grecory a} Bae

1}1. Sutter Street,

San Francisco, California

sets ea aa Wiitine Raper. Ries eeeetes € ar

Mary L. ScHLEIFER . |

1405 K Street, N. Ww.

ae — Sf ge ae aed Attorneys ne |

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2ce ( * e § r r 4

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7 2 “ oe IN ‘THE ; <

-oupeeme Court of the Bnited suas,

OcroseR Tenm, 1947.

is: = Rife ge tage ease

Bay Rivce Opgratine Co., Inc., Petitioner,

BF : : : peat . : \ : ; ar eo

ah ese ' ws

id AMES Aanos, ET AL., Respondent

w . Svaterey veer

Henéie Sermons Coit, Petitioner, ie

Sm a Oe

=, _ Leo Buve, er a1. pecpondewls,

, Be

BRIEF OF THE WATERFRONT. EMPLOYERS “Asso.

CIATION OF THE. PAOIFIO COAST AS AMICUS

CURIAE.

, ~The. reasons for filing this brief. appearing in the motion :

for leave to file will not be repeated. aes,

_PRELIMINARY STATEMENT.

| Waterfront Employers Association of the Paeific Coast’ -

has a,membership of -firms engaged :i ‘in the steamship, ter-

| intial We stevedoring business on the Pacific Coast ' of

continental United States which are. the employers of '

1 As stated in the motion annexed, Waterfront Employers ‘Agen.

ciation of the Pacifie Coast is a“non- ‘profit eorporation, formed. and.

maintained under the laws:of the State: of acenaaieen and is re-

- ferred to! herein as the —a a aS

. “ * - . = *

‘ & ° * * : = :

. . ‘ F . . A . —

oe nf ae “

yuseuiennese

Pee aN | ee He ae

; nearly all lotigshorensen and ‘other sheveshde worke

' ployed in shipping ayd terminal facilities~on

ntimbering approximately twenty thousand. - a.

For nfany years past the Employer Association and its

_—-predecessors have represented meinbers in the. negotiation,

—_—=

. execution and administ#@ation of. Haare rmsd con-.

+ ‘coast, eos

. tracts ‘with labor organizations Fepreseriting longsheremen

' ‘and workers in-related activities and is now party in: — os

— to about: Roemer. collective bargai ning. ;

‘eements,*__

‘Union, affiliated with the Congress of Industrial Organi-

_ zations, —as_ collective bargaining representative of -

-workers, is party to eighteen such agreements.- Inter; -

“The. fuiternational Longehoreme en ’s' and W ssaheitsbeen' 8

. * national Longshoremen’s Association, affiliated with , the *

American ‘Federgtion of Labor, as‘ collective: bargaining °

representative of, utter Breage’. workers i is party to three

‘sueh contracts, ee: ‘

| ‘As in the Port of” ‘New York, atectront employers on

_ the. Pacific Coast have’ paid wages in compliance with con-;

ok tract provisions on the assumption: that overtime rates

' , pay under the contracts were time and one-half the ‘‘ fe

: | lar’’ rates of .pay required by. Section ih of the.

' Labor Standards Act. :

. In the years 4945-1946, “numerous Suits were “filed. in

A ‘United States: District Courts onthe Pacific Coast against

Pas, -membexs -of . the Employer. Association, “Those - pend-

ing in the Northern District: of California. have been’

tried and are now pending on briefs prior to submission.

The others aWait.trial. In all. these cases, the theory of

plaintiffs i is: that’ adv anced, herein and upheld by ‘the deci-

_ sion of the Cireuif,Court of Appeals for the Second Cir-

4 cuit, to wit, ‘that overtime rates paid in this industry for |.

. ‘work performed outside of the normal workday and work-

"week established by. contract are “regular” Yates of pay’

within the meaning. of Section, 7(a)- of the Fair Labor

Staidards axa .

) .

os 4 —. Eo ee BN IAL Ei eet eat

be The facts in thése. cases | are ¢ fully set forth i in ihe peti-

tioners’ brief. | e oe of saad only a few basic

ning agreeryents, in the steve: ripg

: nd workweek during which a specified rate i is said.

’ - awd workweek: In normal. ‘peace. times, a vast pie soma of

ngshore work is performed during the-*‘basic’’ workdey

‘and workweek although some work is performed from time,

'.. to-time in “overtime’’ hours ; the amount of Slovertiine””.

having been considerably higher during the war. period. As

_-in other industries, employers and unions alike have always.

workday and workweek to be the ‘‘regular rate’’ of paf

_ within the meaning of the. Fait Labér Standards Act and

have ¢redited contract ‘“‘overtime”’ against their statutory.

"., obligation, The respondents contend, and the Circuit Court |

of Appeals has held, that contract ‘overtime’? rates in this:

, aa the statutory obligation.

Be ‘SUMMARY OF ARGUMENT.

- +

C ourt has determined ‘that except: under the limited, cir- ©

. Gimstanees’ present*in the Belo case, the* parties cannot

‘by ‘collective bargaining agreement fix the “regular. rate’’

in tears, other industries, establish a“‘basic’”’. — -

intended and considered the rates payable: for the ‘‘basic’? ”

_ industry are part ft ““regular rate’, within the meaning of = ° :

~ the Frain Labor Standards. Act, even though the result of |

bona-fide collective bargaining and with no intent to evade

: I,. The Circuit Court -of ‘Appeals erred in holding oe =

of pay, within the _— of the Fair Labor Standards Sim

1. 6 ws

Ae This’ Court has not heretofore poe ae the precise

. issties before the Circuit Court of. A pea¥s but, contrary to

. the opinion of the Circuit Court of ar it Has consists

ently reaffirmed the principle that the fullest possible scope:

“should be given to collective bargaining agreements except’

whert they constitute mere artifices or subterfuges toevade --

. the’ law. “Moreover, this ‘conclusion is required: by the ~

intent of Congress asexpressed -in. the legislative history.

of the Fair Labor Standards Act, by the Portal- to-Portal .

Act of 1937, and by. our national Rolicy. ~ | .

.* I. The Cireait Court of. Appeals , erred in holding that ‘

“contractdal overtime: rates’ in’ the stevedoring” industry

stitute ‘‘regular’’ rates of pay, within the meaning of

- the Fair Labor Standards Act. ‘‘Regular rate’’ within -

the meaning of the Fair, Labor Standards Act was’ not -

; intended to. include contractual overtime designed to pre- .

- vent. work: outside the normal workday and workweek © _

. established by collective ‘bargaining agreements. “This is” -

- so even though contractual overtime is paid without regard.: *

‘to the forty hour limitation in the Fair Labor Standards -

- Act and that it may not fully achieve its purpose to pre- 7

vent such work... In.the stevedoring industry the time and

‘one-half rates payable for work outside the established

workday and workweek have always been considered. and -

intended as such true’ punitive’ overtime and’ not regular

rates.. Further, ‘they Have achieved in large measure ‘eon-

fineinent of work: to the regular hours established, by: the :

contract. - :

_. TIL. If-the intent of 7, oan is doubtful, the doubt

shouid be resolved in favor of petitioners sitice a contrary .

“decision would threaten. the fotindation of collective bar+.

gaining, expose industry to ruinous claims and otherwise *y

create: serious injustice and inequity. 5m

_ Court Has Determined that Except Under the Limited Cir-

~~ gumstances Present in the Belo Case, the Parties Cannot by’

Collective Bargaining Agreement Fix ‘the “Regular Rate” .

oe en

. I. The Cirouit Court ‘of Appeals ‘frred in Holding this

“'Phe decision of th cent ‘Court of ‘Sppeali, is | ana

_ upon the assumption that under the Aecisions of this Coyrt |

the ‘collective bargaining agreements before it were entitled -

‘to no weight. whatever’ in- determining - ‘*regular rate’”

under Sectiqn 7¢a) of the Fair Labor Standards Act. “It"

held that the:contrary ‘doctrine declared inthe Belo case’. «,

Was restrict) to a contract for 4 guaranteed weekly * wage

a with stipulated hourly regular: and ov ertime rates,

_. ‘The Court: below apparently also held that a decision of»

. this Court® established- that ‘‘the statutory test of regu-'

larity ¥s | met whee a single principle or rule is ey

- applied in order to obtain the rate.’’ .-. -

‘This Court has recently reaffirmed the ‘doctrine be. the

Bele’ ‘ease (Walling v. Halliburton Oil. Well Gementing Co.,

- 331 U. 8. 17):and, contrary. to the assertion contained in the’

- Cireuit Court’s opinion, that doctrine was not limited to —

: ‘contracts providing-a.. ‘guaranteed - -weekly wage.

_ In the.Belo-case (p. 632). this Court ‘stated: “‘But ‘it: is a

- agrééd that ag a matter. of lagv employer and — yee may

Lb. establish the “regular rate’ by contract. ve"

~ Again it it said: PEN f oy

“Ww here the question is as Cloge as this One, ' it ig well |

to follow the Congressional lead and to afford the full-

- est possible’ scope to agreements amang the individuals _

who, are actually affected. This policy is-based upon

a @ommon sense récognition of the special problems -

nell, confronting - employer and - employee in businpenes:

2 Walling v. Belo Corp, 316 U. S. 624. Pie

* Overnight Motor Transportation sid v. Missel, 316 U. S: 572.

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nee from day-to day." (p. 635) ¢ | bas

. ave unrealistic or artificjal (Walling v. Hel rich & Payne,

-. to, or do, \ negate the statutory purpose. Tiese contracts do —

.. in Walling :v. ‘Youngerman-Reynolds Hardwood Co., 325

- U.S. 419, and the contracts are not of a character which

-.- parties the Court below has not only departed from the

tent inthe Fair Labor Standards Act: As the District

Judge found ‘‘The inevitable consequence of such a rule -

. [as the plaintiffs urge].would be severely to restrict the |

‘scope of collective bargaining . >.” (R586) The Con-.

gressional intent in the Fair Labor Standards . Act. is ©

es expressed | in ‘au report of the House Committee* whieh’

= stated: ‘ Our S iehe

anlar the work lana fluctuate f ftom wed to week and

“It is not suggested tint the labor Sonitraci involved here~ -

Inc., 323. U. S. 37). There is no claim that they are in‘ended .

not ‘establish rates that are illusory because never paid as

__are instruments for evitsion of the law,. Walling v. Har-* :

~~ nisch feger Corp., 325 U. 8. 427. Fa 7

‘In rejecting the collective bargaining agreements of the fe

decisions of this Coart but also front the Congressional i in- |

“The bill is intended: to aid ond not supplant the

The report of the Senate Committee® ‘als stated:

efforts, of Anierican workers to improve their position

OY. self: organication and collective bargaining. :

‘Tt is not intended that this law shall invade the: ~

ae ~anlght of employer and employee to fix their own. con-

‘tracts of employnient. wherever there can a any real,~

genuine bargaining between them.’*

and Chairman Norton who reported the bill i in the Special

Session explained:

° ?

- “Tt is intended to éteet employees who: are not pro-

. tected by colleeti By rgaining.”” r70"

4H Rep. "1452, 75th Cong., 1st Sess., Ave. 6, 1937." Aad

5 Sen. Rep. 884, 75th Cong., Ist Sess., , July 6,19387. es

+ *82-Cong. Ree., p. 1990. ee |

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This. Congressional intent was reeniphagized: in the

- Portal-to-Portal Act of 1947 (P. L. 49, 80th Congress;

May 14, 1947) which states in the Findings, and Policy that

. the Fair. Labor Standards’ Act ‘‘has*been “judicially inter-

preted in ‘disregard of Jong established customs, practices,

‘and cOptracts between employers and employees*? anil if.

-. ‘So interpreted ‘“voluntat collective’ ‘bargaining would be

interfered with and industrial disputes . . . would be

created"’ and that, ‘‘it is hereby, declared to be the policy

Of E ongress ss (2) to “protect the right- ofe collective ee

bargaining,” The national policy of encouraging thie col-

jective bargaining process has.also been recently reaffirmed

in the Labor-Management: Rélations Act, 1947 (P. ‘L. 101,

80th Corigress; June 23, 1947). . oe.

-The Court-below in disregarding the collective hecuatelan ior

~ agreements of the parties and the conditions. and practices

‘in the industry, and ‘imposing a- vgs rigid rule Bw ;

from ‘agreement to determine regulaf, rates--of ‘pay :

¢ learly departed from the repeated. sfPtemsate of this oat

“that it was not-the purpose of Congtess in. enacting the -

Fair Labor Standards Act to impose upon the almost infi-

_ . nite variety of employment situattons a single rigid form ,

of wage agreement. Walling v. Belo Corp., supra, a 3

shall be upheld as-establishing the “regular rate’? of. ‘pay i

“ accordance, with the declaration by this.(ourt that:° © |

149 Madison Avenue v. Asselta, 331 U. 8, 199, .

It is respectfully subiaitted that the ‘tidimaent of the :

Circuit Court should be reversed: and the deéisién of the

. _. District Court reinstated to the end that collective, bargain-

-. 4 ing contracts between: employers and employees entered.

into in good faith without

6 ‘When employer: ‘and -employees have. agreed upon,

an arrangement which has “ae ) mutaally, ‘salt .

a at rahe not upset it : ;

}

aN E

oT v. Belo ‘Corp. es spr, p. 635. 7

—f«

.. 8843 40 U.S. C. A. 324 et seq.) as\well.as the Walsh- Healey Act : .

}

’

— : \e* ethene

“Tr ‘The Circuit Geert of. rene Erred ‘ in folding that“

Contractual Overtime Rates in the Stevedoring Industry | A

~ Constitute ‘Regular Rates of: Pay, ‘Within the panes of

the Fair Labor Standards Act.

The basic issues in these cases are (1) whether overtime ;

paid. in accordance with union agreements for wark out-

side the workday and-.workweek. established ‘as nornial or

‘regular -by the agreements and paid | -without regard to

whether such overtime is. worked before or after forty

hours a week is to be excluded, from ‘‘regular rate’’, 4s _

that ‘term is used ‘in the Fair Labor Standards Act and *.

(2) whether overtime rates in. ‘the stevedoring industry *

are to be so excluded. We think both ——* must be;

_answered in the affirmative.

(a) By every test it is clear that Congress did not intend’

‘the term ‘‘regular raté’’ to include ‘contract overtime.

. The legislative history of. the Fair Labor Standards Act |

‘ reveals there was no discussion of the term “regular rate’

by the Congress. This lack of discussion clearly ‘demon-

strates that Congress intended ‘regular rate’’ to’be used -

in its ordinary accepted “meaning. Moreover, this is a-

fundamental rule of statutory construction where Congress"

fails to défine the terms of a statute. Old Colony Railroad

E s Cc ompany v. Commissioner of Internal Revenue, 284 U. S.

552:-’ See also, Addison v. see Hili Fruit’ birioees Inc.,

322 U. S..607.

. In ordinary -accepted. meaning, the. ‘etitie pre rate’’

: or “basic rate’ are weed tnaeniaes from and do not in-,, }

8 The Bight- ee of 1912,.us amended (37 Skat. 137, 5 Stat,

(49 Stat. 2036; 56 Stat. 277; 41 U/SXC. A. 35 et seq.), as supple-::

mented by’ Regulations of the Sedretary of Labor, require’ time

and one-half the ‘‘basic rate’’, The terms “regular rate’’ and -

_-**basie rate’’ have always been treated as synonamous. All steve-

dores who have contracts with the Government are requiréd to pay

time and one-half the ‘‘basic rate’’ for all work in excess of eight

hours per day by reason pf th Eight- Hour Law. This. require-— +=

. ment has been considered satisfied’ by payment ‘at contract over-

time rates. There is no doubt that if the degision of ‘the Cirenit-

Court of Appeals is sustained, additional, liabilities will we created ~

_ under. the Eight-Hour Law pu e Walsh-Healey Act.

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- - elyde. ‘<oeirtime’?,* This Court ‘has so recognized by: de-.

fing regular rate as the ‘hourly rate actually paid for

the-normak, rion-overtime workweek.’ -Wallihg v. Helmer- .

ich & Pay. 323: U. S. 87, 40; or, as ‘‘all payments .°. .

received: vegularly during the workweek, exclusive of éver-

tine payments.’’ Walling v. Y oungerman-Re ynolds Hard-

waod. Co., 325 -U: S. 419, 424. “See also ‘Overnight Motor. - =

| Transportation. Co. v. Missel, 316 U. S. 572; United States 8

i ‘oe $23'U.- “S.. 360; pena Vs Pe ; =

orp., 325 U. 8:427; “o> | |

Trade union agreemerits for more than - a senshiiiy: have

used the device of imposing an economic nalty of higher

rates for ‘‘overtime’” as a means’ of. channeling the work *

into Acceptable daily, and weekly: patterns as fivfed by con-

tracks The pu se of the unions in-the penalty ov vertime :

device’ was to #®hieve a ‘shorter workday’ and workw eek’ in

employment... ‘That this was: théip objective ‘rather than %

securing increased. pay, by working certain hours at ‘‘reg- oe

ular’? time and additional hours at ‘‘overtime’’, is well

_ establish8d. Not only did Professors’ Taft and” MeCabe.,

_ so testify at the he ings (R. 327-330,-338, 346-348; 419, 422-

. 423) but these conclusions are supported by. quotations mil

eminent authorities in this field-which-have been reproduce@ —-_—yj

in Appendix.A (p. 24)° attached -to this brief. That

the purpose of the trade unions was not-to secure increased.

‘pay is further ‘estabpishied by the fact, ef which this Court, |

may take judicial notice, that except ‘im periods ef tonne

rary emergency or war periods, the actual hours of daily

apd Ww eekly employment, have steadily — in this count

“try over the last péentuny.®

The purposes ofdabor’ unions -in sanesine i an economic

-penalty for daily ‘and. weekly overtime are identical with »

the purposes sought ‘to’ be. achieved by the Fair Labor --

“Standards Act: Indeed organized labors’ drive for Sliorter ees

oe See sas the: eile | in Appendix B (p: 28) showing the decrease

in the weekly hours of employment i in manufacturing since. 1909.

working hours was concurrently pressed by means of trade

union agreements and legislation.” This legislative pro-

gram culminated in the. Pair Labor Standards Act whieh

_ Was. intetided to protect workers not covered by trade union:

’ agreements. - Since: the overtime requineinents of the fair.

" Labor. Standards Act were intended to complement contract

“provisions serving an ‘identical purpose, it also follows that

‘regular rate’’ in the Fair. Labor Standards Act was, not

intended to include contract overtime.

The Administrator, Wage. and Hour Division,. has always © |

- recognized that the statutory requirements are met by con-.

‘tractual provisions ‘requiring’ overtime’ without. régard to

whether paid for work before or after forty hours of work: |

‘Interpretative Bulletin No. 4 of the Wage ard Hour Divi-

.. sion has consis y stated that contractual daily or weekly

overtime may be credited against overtime payments due

junder, Ahe Fair iabor Standards Act. Pireae

. ‘The test of overtime, as distinguished from a shift dif- ”;

ferential, i centive payment or ‘other type of “*regular’+

: rate”’; is purpose-—Le. is it intended te prevent work out- <

-sside or, beyondthe regular workday or. workweek estab-.

~ lished. by union contract. Whether.required by law or

+. contract overtime is. permissive in nature, not’ prohibitive.

- Thus‘in dealing with the Oregon 10- hour satte this c ourt

y said y oe : : : >.

é ,

“The provis ee a ov ertime i 1S ‘per missive, in the same

°° sense fede any penalty may be sail to. be permissive.

Its purpose ‘is to deter by its burden and its adequacy ,

for this-was agnattey of legislative judgment under:

“The particular circumstances, It may not achieve its

end, but _its ins

from penalty to permission. at piers A Peas

Press, 1932. noes Vy

1 Bunting v. Oregon, 243 v 8. 426, £36-437. Tae ees

8 os ae s . er

19 See, Shorter Hours, Marion e. Cahill Columbia University. |

Lia \ ‘ : . ~_

2B Sa cee -

oe ew as

aaed unions might have prohibited ‘all inal bey iad the

” established workday or workweek i in their drive for shorter °

*. hours put ‘this was" considered economically undesirable ;

the employer was to be- permitted to exceed the established

ts spattern | when the - exifencies of his’ business’ required it,

_ provided only that he then compensated his employe ees at”

.extra rates-for the added burden. This is likewise true of

the Fajr Labor. Standards Act (Overnight Motor Transpor- . -

tation Co. v. Missel, supra, p. 578). ‘The permissive charac-

‘ter of overtime and this Court’s decision ‘in, Bunting v. Ore-

gon thas reyject any test whereby ‘‘overtime’? is limited to

cases Where it is fully effective in preventing work outside’ .- . :

the established pattern. ‘‘ .°. . Its imsifficiency cannot.) —

— its character from penalty to permission’’. Bunting

. Oregon, supra. Again this Court may take judieial

quiz that some -overtime. occurs at =n ge

dustries; the difference between industries is only one of

_ degree. The adoption of any such test will. accordingly

affect all industries having such collective bargaining ©

agreement at least for some periods.

» Equally untenable is the contention that overtime must

be’ limited to hours in excess of a given number. Obviously

overtime paid for particular days, such as Sundays or —

_ holidays, is not overtime by reason of constituting work

_ in excess of any particular number, -of preceding hours.

Moreovér, for many years many industries have consid-:

er ed as overtime all work performed before or. aft ter certain

howrs-of-the day without regard to whether a partjeular

Rated ‘did any work’ during the regular hours on the

same day." In Appendix C-(p. 29) attachedto-this brief, —

‘we have collected citations froin a number: of « published

_contracts: in other industries for. many years long ante- .

“dating th@ Fair’ Labor Standards A@t which like tlio’steve- ~.

goring industry make overtime: payable for all work out-_ as

side designated hours. 7 ot

Professors Taft and McCabe testified that. ss caasiin.

—yequiring overtime for any: work outside specified clock

fr?

, A

eae were ° generally prevalent i in union ‘ceaiieaite in the

building, printing and metal trades and in scattered con- -

tracts in .other- industries | covering cement and asphalt

workers, steréotypers,. brewery workers, autoniobile -

workers, retail delivery drivers, and boot: and shoe, leather

and furniture workers (R. 331, 339, 425426). = *

-More recently the Burean of Labor Sfatistics™ has stated *

that -such contracts exist in the non-ferrous metal, auto-

mobile, canning and presérving, cotton textile, men’s

“clothing, shipbuilding, : tobacco, and trucking industries, as:

- well-asin the stevedoritig industry. :

It-is accordingly clear that throughout industry ‘gen-

‘ erally, the. term ‘‘overtime’’-was used in contradistinction _

to ‘‘régular’’ and employed for the purpose of prev enting —

to. the greatest extent practicable, all work outside the reg-

lar w orkday and workweek established by contract. .

(b) Tithe. stevedoring ‘industry, management, labor aad:

the public alike have always considered the approximately

time and-one-half rate payable.fer night, Saturday, Sunday,

and holiday work to be. ain vn rate and ‘pot ‘part of

regular rate. -* . :

Although - the “Circuit Court of Appeals ° referred

to a .change in terminology in the longshore - con-—

_,, tract_in. New York in 1938 from ‘‘all_ other time” -

- to ov ertime’’, an analysis of the contracts preceding 1938

will establish, as thie Atforney General will undoubtedly

show, that the terms ‘‘all other time’’ and ‘ overtime’’.

~\ . Were used interchangeably in the New York contracts prior®

to 1938. . Thus the time ~~ one-half rate in New York was

generally considered, by

an overtime rate. The pres press showed a’ ‘like under-

standing iti newspaper: and trade journal acceunts concern--

ing negotiations. between the International Longshoremen?s

Association. and the. New York Shipping Association ‘in

the years 1918-1936, some of which have been’ repeotees, ¥

saci G

2 Monthly Labor Review, Oct. 1947, henlni Pay Provisions

m Union Agreements, p. Az. ey

Ls i

a 15 :

” in. Appendix D (n. 32). attached to es brief. “iw these

articles, it is also cleét that the public understood the

“straight tinue’ contract rates to be regular rates, for the --

iterm ‘regular rate’? is generally used. She we gr

' From the earliest longshore union contracts to 1934 on

the Pacifie Coast and to the present on the Gulf Coast, the

“comtracts between the unions and employ ers have follow ee

‘the pattern of wages and. hours prevailing

harbor; that_i - “was carriéd on @& the basis

5 stated clock hour day: with straight time rates appli-~

* cable to ‘such hours and overtime - rates, approximately — -

‘50 per cent higher, applicable to all other hours. Such other

Pacific and‘ Gulf: Coast agreements... Thus the contract of |

_. the Riggers ard whereas Union applicable jn mw:

~ Francisco ‘in 1911 provides:,

7, Nine honte? work sie tines beleaks the. hours of.»

“7 A.M. and 5 P.M. shall constitute a day’s work.

f 882 Al w ork performed betweeti the hours of 5 P.M. aad :

«7 A.M! on Sundays, or oy State and Natioual Holi- 3

_ Mays, shall be quasicared overtime.’”.

: The same: wording with minor variations continued ” -be

| used in each contract until 1934."* ! See

-, At. the coneiusion of -a maritime strike on the Pacitie

employers . were ae to arbitration before ‘the

—

13 The contracts in New Orleats and Gui satin wena used the |

term ‘‘overtime’’ followitg the ayard of-the National Adjustment —

| 4 Coetnniteaaie for New Orleans, dated November -2, 1918, which pro-

vided : : ‘?

Rirst:. The basic. working day of. eight (8) hours from 7

A.M. to 12 o’cléck noon, and from 1 P. M. to 4 P. M- is hereby

: established. .. ie

a i)

‘Second : On general cargo men. shall receive dake tive

. cents (65¢) an hour for regular time on all. Week days and all -

other time shall be counted, and paid for as overtime at the

rase of one-dollar ($1.00) pet hour.”” (Emphasis, supplied)

hours liave always’ been designated as ‘‘overtime’’ in the. -

: Coast:in 1934, ail disputes of the’ longshoremen and their ~~

A am $ e .

3 .

> | —

26.

ae National- Sciahivcensie? s Board appointed, by- the. Presi.

dent of the United States to hear and determine the strike

issues. That Board rendered its award*on October 11,*

1934, and among: other things ordered. the parties to a opt. .

<_ workday and workweek as follows:

——

az ——* Sécfion ; 2. ‘Six hours shall constitute a day’ s work.

Thirty hours shall constitute a week’s work, averaged

over a period of four weeks. The first’ six hours

‘ worked between the hours of ‘8 A.M. and 5 P.M. shall

belesignated as. straight time. All work i in excess of

six hours between the hours of 8 A.M, and 5\P.M., and

-all work during meal time and between 5 P.M. and 8

A.M-on week days and from 5 P.M. on Saturday to |

8 A.M. on*Monday; and all Mork on — holidays,

shall be. designated as overtime. iglesia ee ney

_ In: the hearings before the’ National ‘Longshoremen’ Bo«

Board representatives of the International. Longshore- S

‘men’s Association, then representing the workers, ‘clearly

admitted the punitive character and purpose of overtime

' in-the stevedoring industry as did Mr Ryan, President of |

4 ’

“the International. Léngsho enien’s Association, when tes- -

' tifying in.these cases (R. 173, 180, 186). The International .

- Longshoremen’s Association: further urged the adoption of -

the six-hour day and thirty hour wéek, in exactly the form

_ adopted by the Board, for the avowéd aid specific pur pose

of spreading the available employment among the workers, -

“alleged to be excessive in number.’"* At the :same. time -a

_wage increase was granted by the Board te assure ade--

quate earnings by reason of the reduction i in the workday-

; and workweek. |

~ Despite contrar assurances by the ‘International’ Long- .

“Haveana! s Association and the increased rate intended to

compensate for the shorter six- -hour day; immediately , fol-

lowing the award the longshoremen refused to be displaced

_ by fresh men at 3 P. M., or at. thie conclusion ‘of six: hours . .

14 Relevant excerpts from the testimony are ‘reproduced in 1 Ap.

a E (p. 35).

2 es

. Pd

pee es ag

straight Ainicononk if. the ‘there. was further wink to be done.

‘Thus. the employers were compelled either to work only a

six-hour day or to’employ the men at overtime rates. Sinee |

all trucking anfother servites incidental to longshore work.

“remained onan eight-hour day on the Pacific Coast, stéam- . _

slup spam found. it impracticable’ and ~uneeotiomical :

to iimit their activities to the six-hour day. The employers |

‘Deing unable to secure reliefs at/3 P.M. to continue work

_ at straight time rates, in 1937, following a second strike, |

> finally ‘acceded to the actuulity and the’ ‘provision was in-.

serted in contracts thereafter: ‘‘but there shall be no relief Me

of gaugs before & P.M.”

- Kr 1938, the: National Labor Relations Board certified the

Inter national Longshorenien’ s and Warehousemen’s Union

as collective bargaining representative for a unit compris-

‘ing all employéts of. longshoremen on the Pacifie Coast,

except in a few minor ports on Puget Sound... The six- hour

day atid the provision above “quoted: have’ since that date - -

been ieorporated in all longshore and dock workers con-

tracts on the Pacific Coast except where the eight- hour day

_ prevails."

Thus we. find ‘that in- the ‘iteeviatiee industry on the

Pacifie Coast the same conception of contract overtime pre-

vaited until 1934 as that which existed in New Y ork.. Since

then, the only departure from the pattern of hoars and

: rates of pay prevailing in New York arose out of the aw ard |

iniposed by Presidential, Board upon employers on the.

“Pacifie Coast, which being identical in purpose with that -

“underlying the Fair Labor Standards Act, simply reduced

the length of the workday, thus imposing upon the em-.

cv —' seadaaléy of the suits filed on: the Pacifie Coast involve walk: ;

‘igg bosses who, while not covered by a cellective bargaining agree--

ment, have always been paid for straight. and overtime work strictly —

. in accord with the longshore contract, except for an added differ-

‘ ential, and accordingly have enjoyed the benefits of the six-hour. ©

day sinee 1934. The balance of the-suits involve terminal worker's

- employed under a contract with the International Longshoremen’ +

- and Warehousemen’s Union which in alt matcrial respects is iden-

tical with the New York longshore contracts. .

Misses 18

ployers a. sitter ihilenthin resperting overtime as: an

whieh had theretofpre prevailed but greater in- amount.‘ ‘o?

.. Af so on the Pacifie-Coast as onthe Atlantic, andasin

industry generally, we find all parties in interest imparting “

- to contract.rates ‘payable for the basic workday and work- }

week the same, meaning as ‘‘regular’’ rates referredsto ny,

the law and treating overtime rates as being. in conformity

’ with. the requirements. -of Section 7(a). oe:

It is notable*that one of the important segments of organ- }

’ ized labor in this industry has affirmed these meanings and

, ‘purposes in this case and that the-International Longshore-

men’s and Warehousemen’s Union has never taken any ~

official position to the contrary.

Finally, the District Judge found, based uport ev fidence” ea

.whicli eapnot: be challenged as insulficient to ; support, tlie. /.

Findings:: . ~ te | ae

“<The ¢ ‘ollective sieeve, since thie Latornations]

Longshoremen’ s Association organized. the longshore-

-mén-in-the Port of New York in 1916, reflect the desize .

and purposes of the Union-to decasualize employment,

to concentrate employment during the basic eight-hour.

~ ‘day and to avgid ‘overtime’; cept when absolutely

| esséntial. ” (B. 610-611) © a

‘*The. employment of sthe 50 percent premium for

such overtime hours was designed to.

- terrent and not a ition. Such 50 wana pre- *

mium in «he longshore industry has ‘proved *to be

effective as‘a deterrent and is responsible for the high

degree of concentration of longshore work in the Port

of New York to the basic working day.’’ (R. 612)

— as

| , 19:

" III. If the Intent of Congress is Doubtful, the Doubt Should - -

Be Resolved in Favor of the Petitioners Since a Con-

trary Decision Would Threaten the Foundation of Col- -

lective Bargaining; Expose Industry to Ruinous Claims -

: and Otherwise Create Serious Injustice and Inequity. 2

: It is axiomatic that. when the. intent of Congress is. in

--doubt the Courts will not iniply an intention whiclr is cone *

-{rary to public policy: and interest, “Many yéars ago this

Court, stated in W ilson v. Rousseau, 4 How: ard 646,680: © .-

Mics :

“We cannot but think a-court should hesitate before ~ ae

giving a construction to the clause so deeply harsh and-

» unjust in its consequences, both as it-respects the pub- .

-. lie and indiv idual rights aud inte eae upor so narrow

he foundation.’’ <5

Son” contrary principle was » apes ‘in Jewel Ridge Coal.

Corp v. Local No. 6167, 325 U.: S. 161, sinte the Court there

found that the Congressional mandate was clear.

Yet the decision of ‘the Circuit. Court of Appeals would - —

* clearly have this result, as the District Court found :

“Whatever the answer to such a rhetorical question,.

“it is clear that. the application of either. of plaintiffs’

formulae to the’ Nation’s wage “bill ‘retrospectively _

would create havoc ‘with: established labor relations,

.put collective bargaining in the category\of a device

.for obtaining money. under false pretenses and prob-

ably strain the resources of a substantial proportion

of American industry. 63 a 7

**Such- catastrophic results are inevitable once we ac- \

: “cept plaintiffs’ underlying premise—that in determin- \-\ . ,

ing the regular rate intended by .Congress, we must :

close our eyes to the contract in good faith negotiated

between employer and employees and look. only to the.

aétual work pattern. Upon such a premise, genuine *.

collective bargaining cannot a... \

“Tf we are free to reject the ‘contractual ‘regular

rate’ .ip the case of longstioremen, there is no rational

basis for not rejecting it in the three illustratioys. The

: inevitable consequence of such a rule would be severely

ve : > % ; r) 20 : : , 2 oon ze

to restrict the scope of colléctive bargaining, to ‘chee! k

“. «the development of agreemehts more favorable to em- .

chem ployees. than.the minimum. standards -established by

' F.L.S. A. and fo r@tard the use of ov ertime even when’ |

‘national interest required it. . (R. 586) Rar ee

Tine aint again; iti the Norris- LaGuardia Att (47 Stat. 70,

29 U.S. C. A. §$101 et seq.), in. the National Labor: Rela-,

tions Act (49 Stat.-449, 29 U. &: C.A. §§161 et seq.), in Hie *

‘Labo#-Management Relations Act, 1947, (supra), and the ° ,

-Portal-to-Portal Act of .1947 - (supra), “Congress has de-.

. clared the national policy to be one of encouraging the col-

lective bargaining process. This Court ‘itself has recognized .

: that as the policyof the Fair Labor Standards Act, (supra,

-p. 7) as the legislative history of that Ast slows ( supra,

p- 8).- Yet jhe effect of the decision below would render _

futile collective bargaining ‘respecting wages and hours, the |

_ most important terms of the collective agreement, since the

actual rates of pay would in‘a large measure be fixed. by

law instead*of by contract. . Again the decision: of the Cir-

cuit Court of Appeals would defeat. one of the principal

objectives of organized labor; that of obtaining uniformity

"4 of wage -rates for employees performi ng similar - work

-under similar cigeumstancés. ‘And, by jirtue of the pen-

alties which they would face, employe ors would be. deterred —

* from aceeding td -the long -existing objective of organized :

~ labog to” impos¢ severe penalties for - the ew of ae

work at undesirable hours. : ;

The rule announced in ‘the decision of the Circuit Court,

if upheld by this Court, will present to the stevedoring in-'

dustry and others in like circumstances, the immediate need ~

' of: setting aside, collective bargaining . ements and ip."

‘dustry practices which have long been Mfeffect and insist-

ing on new forninlae to bring. wage ‘andhour provisions ‘:

withir’the rigid rule -set fortli therein. yThe wage penalties )

threatened would leave no alternative to-employers. How

workers and unions will respoyd cannot be certainly known. ;

_ Obviously, the results will be isturbiitg to industry, labor ae

‘ ‘ill i serious. And, the effect on commerce

" must cer ainty be ‘such as to result in- hardship and. i incon-

venience 49 the public * : ois

The.eoast Jongshore agreement for the, Pacific (and een

shoreside labor. “contracts), as well’ as those in .the Port of

New. York,:- contain specific provision. that-in the event of a _

_final. decision. holdjng the contracts before this Court in

=) non-eonformity with the law either party niay forthwith.

_ cancel, ‘thus recognizing - ‘that employers ivf this industry”

- cannot carry on without t drastic changes.. Where contzacts -

do not contain. such ause, the problem i is only deferred |

‘+ at the expense of employers. until contract expiration ‘dates

“a

- arrive, at which time ‘the impact Will fall ‘on commerce and _ :

the public. «.

“On the Pacific Coast : it is clear that if the aicielon of the

(%urt below i is : affirmed, employers must attempt to abolish.

_* the six- hour day. -It.is a matter of common knowledge that“

r ‘in the coal. and clothing industries ‘and ‘in many others,

“hours .or: less have been established although ‘moré or

- less regularly overtime hours’ are worked. In such indus- -

tries also eniployers will be forced to’ resist continuance

of conditions more favorable to. employees than the statute

requires, which have been: obtained -by organized labor

through the process of collective bargaining.

It.is fair to predict also that if the decision of the Cireuit -

.. Court’ of, Appeals -is sustained, al] industries subject to _

collective bargaining agreements Will face retroactive lia-—

- bility in a flood of suitS comparable to thdése which arose ae

under. the saine law prior to the Portal- to:Portal: Act of °

1947. One cannot predict the exact extent of the liabilities -

: which industry would face in that event. But, in an indus- nee

try such as stevedoring ‘where labor costs constitute more

than: 80 percent of ‘the total operating costs, it is: evident es

: that financial ruin would result;

ae orkdays. of. eight, hours or less and workweeks of -forty ~~

~ that the liabi

sion .to reimburse contracting stevedores (for war service’ |

only), if the jydgment of the court below i is sustained,- will

“> approximate $300,000,000."°

Some iotion of the extent of the. liabilities involved i is

y of the Army, Navy and Maritime Compis-

indicated: by Woot submitted to’ the Congress indicating :

The decision of the Circuit Court of Appeals i is. postion:

__ larly unjust in that.employers, such as those in the steveder-

' . ing industry, “would. suffer liabilities solely because. they

_. have exceeded their legal obligations beadding thereto Jia-

:_ bility to pay a similar rate for work performed at night and

on Saturdays, Sundays and holidays. And on the Pacific

_ Coast the injustice would ‘be even more. oppressivé since a—

“ greater liability would result solely because an award of ae

Presidential Board, for purposes identical with those of the” re

_ statute, imposed upon our week a, six-hour day. instead of

an eight and a thirty-hour ‘week instead of forty.

-In ‘the-Portal-to-Portal Act df. 1947, ‘Congress declared |

+ the ‘practical policy against interpretations of the law in

disregard of long established customs, practices and con-

_ tracts | ercating unexpected liabilities, impairing. the re-

sourees-and even threateninghé solvency of employers and —

conferring windfalls on employees ‘in. excess of their. con-—

' traet rights? That policy applies with at least equal foxce

in the cases row before this Court and fully supports the

conclusion reached by the Distriet Court. .

--~, ° CONCLUSION.

- For the foregoing reasons and other. reasons set forth in —

the petitioners’ brief the Waterfront ‘Em loyers “Assoc ocia- va

tion of. the Pacific Coast respectfully urgés s that the «

a6 Hearings before Suleouneites No. 4 of thé Meus Committee

on Education and Labor, November 17-25,- 1947, verbatim tran-

seript, Bypfau of National, Affairs, PP. 65) 146, 224.

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Ni ‘APPENDIX a em I

Bxoerpte from Authorities Conceriing the Establishment :

=. and Purposes. of Overtime Requirements by, Organized

6 ‘ : ys — : eo * :

_@&

3 wee Sidney, al a W, bhi in 7 nd: lustrial? Ae mocrac cy, writ-

ten“in 1897, pointed out, that-as*turly as 1836,the London |

_ Engineers after a successful strike securéd a 60- ‘rear week

Sand **the penalizing of overtime by extra rates.’ (p. 340)

Tn a later passage they stated that the agreement. for the «,

* London building trades.made in 1892 ‘with éxtra:rates in

". tended to penalize oyertime, is only one of the latest of e. :

practically unbroken series peer agreements. . _ (p. : 2

: 4b) ? . Ree ;

Professor George E. Sere one-time President of the

Atierican Economic Association, in his work concerning

‘the Ty pographical Union, The Printers, published in 1909,

' stated: © ‘‘The distinetive. characteristic of regulations 4

‘ aimed at reducing the length of the orking day .. ..is‘the -., f :

requirement . ...ofa considerably h gher. rate for ov ‘ertime

~ than for ‘tinue.’ 29 . {p. 157). ‘The aim of the. union, is to

reduce the hours of work. and. not to get, extra pay...

Although it’ cannat abolish such work elitirely, it aints to ic

make overtime: as ‘undesirable. to employers*as rade condi-

‘tions 'w ill perntit. »» (p. 159). ue : ‘

Py Professor T. S. Adams ‘and Helen L. Suniner, of the U ni- *

versity -6f Wisconsin, said in their texthook, Labox Prob-

lems, published in \1905:_ ‘‘Overtinie on rstematically op-

posed.. One or two unions forbid it, except i in cases of emer-

genex, but the usual preventive is found in. demanding extra

pay for overtime.? 58 (p. 260) woes ; .

In, What's W hat in the Labor Movement, ‘compiled by

Waldo R. Browne and published i in 1921) we find {p. 363):

ees “Overtime. ‘Time worked -beyond the number of

=. hours established by colleétive bargaining, by cus- ry

.. tom, or ‘by law as comprising:the normal day or week --

a oe particular industry, occupation, or industrial pans is

My ee eat oe a guorked on ace ase and holidays, i isso callec

Ps .

. The seein rate of pay Seitladiat ditianded by or- >

ganized employees for such extra working time is often’

‘known as “punitive overtime,’ the trade. union theory

being that it is: usually unnecessary’ and always unde-

sirable to have overtime, and that the increased rate of »

payment is a penalty against the employ er and intended

‘to act as a deterrent.” : ny

. ‘\

_In L@ or and: Social Organization, written by Richard a oes

Lester ind David A. ‘McCabe, published in 1938: .

ao “Nhe union method of ‘enforeing’ #bservaiice ot the

normal day. upon employers is to set a high jurly

up to tht normal number. The overtimé rate is ustially

Gouble time’ (double the normédl.rate) .for the

s or half days not included:in the normal working

week: These are known as ‘punitive overtime rates.’

‘They allow ¢the employer: to work {PF -men overtime in

_ emergencies but impose a tax to insure that it is an,”

“emergency. This practice has led to the charge ‘that in

demanding a shorter workday the men are aiming not

so much at‘a reduction-in ‘actual hours as at an increase —

- in.the daily wages. However, most unions frown upon

= men working overtime regularly while other members

.gf the union are unemployed. (p. 72)! 45 woe,

irate os in Industrial Rela ns in 4s Building

Ijdustry, published in 1930, says “(p. <8) : “Overtime reg-

ulation is of considerable, ithportance” in building-trades

unions. Most of. the organizations provide for overtinie |

rates, betiveen - -one ‘and one-half and two times the regular :

rate.”? Discussing the ‘charge that the rates are excessive,

he points out (p. 229) that “the unions contend that thé rate

-is intended to be punitive, to discourage overtime, to force

an employer te de all the work during the regular eight

-. hours.’’ He adds: “An examination of uffion policy .

» shows a fundamental purpose | behind overtime wage. regula-

.tions. The union is interested in equalizing’ the working

opportunities of its members. . . . Punitive overtime rates |

Po Ny

¥ c 3

‘ hours beyond the normal thar r the hours. .-

one half’ (150 per cent of thé-nermal re “ate),

« jal\e

oa “ nt 26 ‘ if

é « . 6.* pa

- aim to spread production ever a longer: sasted and to equal- af

ize the working opportunities’ among the union members.’ ’

Willard E. Hotchkiss and Henry R, Seager, i in History —

of the Shipbuilding Labor Adjustment, Board 1917-1919)! |

re stated: Ee ; sau ew ele | z

‘ Compensation at higher rates for ov cert Re is ‘nai

...* >. as‘a means of, protecting workers against unduly long

ig hours. "> (pp. 38- 39)

The views of labor leaders were summar ized at the turn

of the century by tlie Industrial Commission, whith gon: |

- /uded :

unionists is strongly in. the direction of. emphasizing

‘the importance of a shorter-work day. The most

progressive leaders, such as Mr. Gompers, of the Fed-

eration of Labor, are constantly ‘urging their associates

_to put the shorter. work day in the forefront: of their

- demands. our hours is and control: your’ trade and

‘shorten your hours, is their position, and wages will

“take care of. themselv oss oe E

* *. *

“By ertime work and werk on Sundays and holidays

are snecial cases of extension of the hours of. labor.

is The position of the labor leaders logiéally requires that

ae all work outside of: regular hours-be abolished. This is

“The general drift of opinion among. Amer iean trade a

in fact the desire of all the more: progressive union men, . °

and the desire which is almost universally expressed

in the collective action of the organizations. 4 Bis

: . “The stronger orvanizations usually secure a higher

rate of pay for work outside of regular hours. ‘The:

Building trades in particular get time’ and a-half, and,

'.“ sometimes. double time.. The Lithographers and Core

Makers have national rules requiring time and a half,

A Bulletin No. 283, Bur. of Labor Statistics,

" . Reports. of the Industrial Commission on Labor. Organizations,

‘Labor Disputes and Arbitration, U. Ss. ‘Goy t. Printing Office, 1901,

Vol. YT, pp. XLV I-XLVIT. ede ;

‘and similar rulg“Aare’ enfo~ced. by the local unions: in

“many trades. “A curious 1. lication of the feeling

-- against owrtime is furnished’ by the Wood Workers.

They insure their members against loss of tools by fire -

or "accident, but they pay tio loss which is-incurred

a. is hd on Sanday or after reg-

ular rking hours.’’ * : .

A well- kiorwn labor attorney ‘and student ‘of labor: policy,

as follows ;: ree.

“Organized labor seeks to discourage ov ertime. ‘It

‘ment; it runs counter to the ‘spread-the-work’ prin-

ciple; it aggravates the problem of unemploy ment; it —

endangers the health of, the Workers, it interferes with

- normal living. |For thesé reasons labor insists that

overtime restricted pa be paid-at.a higher rate than

-. the regular hours. Because of these limitations, the

employer will make use of. « ov ertime only in cases of .

absolute n essity. sap tnte Be | :. /*

: ee ae Stocktor ,in hig ia Lia the Molders’ Union, states

‘that “the natio al officers haye always tried to’ discourage —

* overtime because it ‘takes work away from the unemployed’

and because tired men cannot\do good work.’’ (p. 167)

Press, 1932 states ‘‘Reduction of hougs has been one of. the

two major demands of labor i in the United States. -_ idk

: Ibid, pp. XLVII- xLvaTl.

York; 1939, p. 155. : ' :

' ST he International Molders’ Union. : ait: gee

¢ontends: that overtime shortens the period of employ- :

‘Marion C. Cahill in Shorte HoursgColumbia University =

: 28

Full- Time Average Hours of Work Per Week Per Worker

.. #p Maaptacturing."

“Bureau eee pee es

Labor National Indust*ial Census of |

-: Year... Statistigs Conference Board : Manufactures’

Hee (0) -(f)

1909 . er : aes

Te ee

ee a Rs eS

1920 * - 47.1 Bok: :

‘1921 fo 45.6

1922 - oe Be ee 49.2

1923 LV 4(3.° , 49,2

2. | eee 45.4 ° = ee a

. ~ 1925 a > oe ac «Sees

1926 a 46.5 ae ar 48.1 (ait

1927 * 46.3 capers Si § c ea Bude Tans

1928. - 9 eae 47.9 — BS oe ae

1929, . .. “45.7 . A 4B3~

1930 . eee 7a

1931 41.7 40.4

1932 . 38.2 ee | ayaa ee bee

1933. ; Sea 36.4 ae ea

1934 |" 34.5 34.7 Ps

6! NB. eee Es @,

1936 | ek «Se Ceneeeemay Rae oo

Spar 2 * 38.6 acces” pido ae.

1938 Ot” Se Las... eeemernpmede ‘

1939 -.. oo eee 3 Genre *. 37.0

att Ssiomon Fabricant, Employnient in. Manufacturing, 1899-1939,

National Bureau. of Economie Research, New York, 1942, p. 234...

| o ey,

5 . 2 /

and After Specified Clock Hours.

As early “as: 1876, ‘according to Stockton,! thie molders

thought it necessary. to support the ten-hour rule witha

statement that the hours must be — een 7 am. -and 6 pa in.

(pp. 161, 167).

The United Brdtherhood of Soedios W scale on Sake ; ‘s

Goods at the: tarn of the’century was concerned with ‘estab-

lishing an 8- hour work day. Its views on viting the work Sa

day were expressed. by the following:

“The- rules of the _ union forbid ‘members to w ork

‘more than 10 hours a day. The 10 hours are to be be-

-tween.7 a.m. and 6 p.in. The Brotherhood has declared _

itself im favor of establishing an ‘8-hour. day at. the

earliest possible moinent. . ee RS

Another example of. a prohibition: of work at certain

hours is found in the agreement between the. Carpenters’

E xecutive touncil of Chicago and Vicinity and T. Nichol-

son and Sons Co. in’.1899. ‘Eight (8): hours shall consti- -

tute a day’s’work befween the‘hours of 8 a:m. and 5 p:m.,

except Saturday, .when work shall cease at 12 0 ‘clock.

noon.’”* '

Canada provided ‘that all work doneoutside of the hours

of the agreed schedule i is to be. considered. ov ertime and to

be paid time and a half.’

The agreement between the Master Steam aa Hot Water

’ * Fitters’ Association of New. York City and the Enterprise

Association of Steam, Hot Ww ater, Sprinkler, Hydraulic,

7 The I shiva Molders Union.

* Report of the Industrial ‘Commission on Labor Organizations,

Labor Disputes ‘and _— Vol. XVII, p. 308.

3 Ibid., p. 384. ;

; ‘Ibid; p. 115.

- Baly Union Contenels Requiring Daily Overtime Before ool

The constitution of the Lifhcaraphors’ Inter national Pro- 7 :

tective and Beneficial Association of the United States and |

yee time FA

~ 30

~ and General Pipe Fitters of Now York City, made i in 1 1900,

prov ided :. | c) :

“The wating day shall consist of eight (8) hours

between eight (8) o’clock aan: and five ) o’elock p.m.

with one (1) hour for-lunch, exeept on Saturday during

. the months of June, July, and August; when the time

shall consist of four (4) hours betwe een eight hee: o’clock

_ a.m. and ‘twelve (12)-noon. at

‘“‘The working day above named shall he known as

regular time. and shall be time actaally employed at.

-work.

‘‘Rule No. ca

3 “Any, work done between five (5) 0 ‘clock pn. ‘and

—_. eight (8) o’eloek-a:n.;‘and on Sunday, New Year'’s Day,

LincoJn’s Birthday, W ashington’s Birthday, Memorial

» Day, —- of July, Labor Day, Election Day, Thanks-

giving = Christmas. Day, ‘and the Saturday half

holiday shai

lial

' A: provision is included in ye contract bite the

Hamilton County (Ohio). Carpenters’ District Council and

. 296

A drastic. provision against yorkie: ontaide of. specified

. as was embodied i in the contract entered into on “May.1,

1899, between the Amalgamated Sheet Metal Workers’ Pro-

paid for at double the rate of regular

Te the Master Carpenters’ Exchange, “That working liours

- shall be from eight (8) é’clock-a.m. ‘to twélve (12) o clock

m. and from one (1) a ‘clock. “p.m. to five (9). 0 'elock p.m.

tectiv e and ‘Benevolent Association’ of New York and vicin-

ity and the Employers’. Association of, Roofers and Sheet —

we Metal Workers of Greater New -York and Vicinity. ‘All

work done betwéen the ‘hours of 5 o’clock p.m. and:8 o’clock

5 Report of ‘the Industrial eanibiien on ‘the Relations and Con-

ete., es XVII.

*am., and Sundays, New Year’s Day, Lincoln’s birthday, .

W ashinigton's birthday, Decoration Day, ‘Fourth ‘of July,

- ditions of Capital and Labor, U. ‘S. Gov't Printing Office, 3901, Vol.

VII, p. 941. Ces

6 Report of the Industrial Commission on Labor Organizations, a

Ee PO ae OE A, Be wy

31:

* Labor Day, Election, Day, Thanksgiving Day, Christmas _

‘Day, shall be, paid at double rates: of regular time.’’? .¢

The agreement entered into on April 1, 1899: between

‘the Master Painters’: Associztion of Troy, New York, and

Yeinity, and local union No. 12, Brotherhood of Painters

and Decorators of America, at Troy, New York, illustrates.

a similar attempt to penalize work at certain hours of the .

day. . ‘‘Article 3" states: ‘‘That 8 or 9 hours. shall con-

stitute a day’s: work the same, to be performed between —

7 am. and 6 p.m. 7 and that after p.m. overtime must he

paid. 998 ;

SRN econ eee

A limitation upon the hours of the day that ean be worked

is also found ‘in the agreement of the Concord Granite

Manufacturers’ Association and the Concord branch of the.

_ Granite Cutters’ National Union, for the period ending

May 1, 190%. ‘Kigitt hours shall constitute a day’s work,

to be worked between the hours.of 7 a.m. and 4 p.m... . 7"?

The agreemenggxpiring.June 1, 1901, between-the large

breweries of St. BBuis and the Brewers’ und Malters’ Union *

‘No. 6 at St. Louis provides : ‘*Nine (9) consecutive heurs

shall couistitute a day’s work: With the exception of load-

_ ing beer, work shall not commence before. seven’o’clock in.

the morning and last not longer-than till five o clock nam,*?

A contract’ for the vear 1899 between the loc al lodge ‘of. -

€ lectrieal workers in Washington and the employers pro-

vides. as follows :. |

; “Rule 1. The hours of lak wy shall be eight hours per

_ day, to-be performed between the hours of 8 a. and-

5 pan, for five.days per week, atid from’ 8 a.m. to 12.

noow on Saturdays. Rule 2.-That all work done be-

tween 12 m. and 5 pan. on-Saturdays be paid for at

double the rate of wages: Rule,3. Any labor per-

formed before 8 a.m. or after 5 p.m. shall be paid for

at double the: regular rate of w ages.’ Seal

7 Jbid. Vol. XVII, p. 394. ew : race ee

§ Thid, Vol, XVII, p. 398: ; 7 3

* Ibid. Vol. XVII, p. 399. is

Ibid. Vol. XVII, p. 410. ; ee

‘Ibid. Vol. XVII; p. 415.

——_——$——————

—_ asa YG me

| 32 he a ¥ e : | */

APPENDIX D. |

en from Publications Showing the General Under-

standing at that time of the Character and Purpose of

' Regular and Overtime mates in the oe In-

dustry. -

According | to the New York _— of Otte 1, 1918;

- “The demands of the International ngshoremeti’ 8

“Association, which represents 35,000 mgn in the ports. -

of New York, Boston, Norfolk, Newport News, Balti-

more and Portland, are for.an ‘eight hour day at $1.00

__an_hour and $2.00_an_hour for-overtime-and-Sundays;—

They are now getting 50 cents:‘an hour for a nine hour

' day, and 75 cents an hour for ov ertime: nd $1.00 an .

hour for Sundays and holidays.”’

_ ‘The parties were unable to reach ‘an agreement in 1918.

and the issues in dispute wére submitted to the National Ad-

_ justment Commission, a government b. y appointed during

World War I. ta settle disputes involving longshore work-

ers. Discussing the demands.of the longshoremen for the

- following year, Dr. B..M. Squires, Secretary of the Na-

tional Adjustment Commission stated, ‘‘ The demands were

fora ‘basic rate ef $1 on general cargo as against the exist-

ing rate of 65. cents an hour, and for an ov ertime rate of

? 1

According tothe New. York Times of September 13, 1928, Pe

#2 as against $1 an hour: ‘under mre agreements, ge

“Yesterday the steamship committee offered: to base - i

a new contract on the old wage scale of 85 cents an hour |

_for regular time and #1 oo an hour for overtime.’

- The New Y ork Herald-Tribune of September 16, 1930 re-

ported :

“*No increase was demanded i in wages and. the walk:

ers were content to ask for a renewal in the face of the -

none too.prosperous condition: of the industry. -The

_. Sentimeng was that with a forty- four-hour working a

B. M. Squires, ‘‘ Peace Along the Shore,” Survey,-Aug. 2, 1920."

week, the pr escent 85 cents an hour and $1 30 ov ertime

pay was a good’ figare.’’

oa the Journal of Commerce; ‘September 18, 1930:

Heat this meeting it was agreed that the 1929 stale

should be renewed for the year beginning October 1,

‘with the exception of the revision of, on@lause. Under

the agreement longshoremen receive 85 cents an hour

regular time and #1 30. an hour overtime. i.)

- Similar expressions. occurred i in the following r years.

“The present wage scale beeame effective on’ “Octo-

‘ber 1 last year after the stexship employees and the

union representatives had wrangled for several weeks.

‘The men lly_agreed. to reduce the overtime, scale

from $1.30 to $120'an hour, but they succeeded in hav-

ing the —— hourly pay of 85 cents an hour con-

tinued. thes

“The Steasaghip. group first offered the men a 20. per.

- cent eut to 68 cents an hour and 96 cents for ov vertime,

‘but this. was quickly rejected by the workees.’’

; “The. deeyiwater. Steamship companies cuipkiiing”

the New York Shipping Association yesterday voted to *

‘an hour i. gue fe ee Bap , a

—

* “Later the-eoipanies were ready to pay the men 79

_eentsan hour and $1.05 for ov ertime. te

**The present agreement went into. effect on October ;

1 last and expires at the end of this month: It calls for

a forty-four hour week at -the rate of 85 cents an hour

straight ‘time and $1.20 an haut fot-overtime. Al

though Mr. Ryan was‘ non-cgmmittal it was learned

‘from other union sources that the I. L. A. will demand.

$1 an hour, $1.50 overtime and a thirty-hour week.”’ +.

- 2New York. ‘Herald-Tribune, September 8, 7. SER Ree er ie

: 2 Thid: September 141908." 2 :

* Ibid. September 20, 1932. a Ee

* Ibid. September 24,1932. - = me

“New York Herald-Tribune; September-7, 1934, aie

“Mr. Ryan declined. last night. to announce’ ‘details

of the wages which men will demand, but in labor

circles it was said that. they would ‘have’ a basis of $1

'- af hour for a thirty-hour week and $1.50 an hour over-- ..

-." hour for-a forty-four. hour ~—— and = ‘for ov ér-

‘time. The contract now in effect calls. for 85 cents all

time.’’?

en Se ‘after extadea snail in, which Mr. i

said the men sought a thirty:hetir week to provide more

_eniployment for; th¢ir fellow workers ms a wage of $1

an hour and 50" for overtime.’’*®

‘‘ Demands for an increase of SAE EEE oe ep Sg

_ ™New York Herald-

ron 15¢ an hour overtime and a. forty-hour week’ are :

submitted to the New York Shipping Association

Mi day by the International -Longshoremen’s Associa- —

- tion. These’demands were formulated yesterday ata

meeting of the wage scale committee at 164 Eleventh

Street? The present scale is 95¢ an hour regular and -

‘ $1.35 an hour overtime for afofty-fqur hour week. Thé

new scale will be $1 an hour regular time and $1.50 an.

* hour overtime. The scale will rey to all workers ,

from P ortland, Me. to Hampton oads. 79

- Barlier in the day the North Atlantic district dide-

~ gates discussed their proposal to shipowners. for a re-~

duction in hours from forty-four to forty a week and.

an increase in wages from 95¢ to $1 an hour, with over-

ne time raised from‘$1.3a to $L50 an hour.”’ 10 $e

\.. “The ‘Association jast week drafted demands which Se

> cluded increases in the hourly wage from 95 cents to

3 $1 with $1.35 to $1, 50 for overtime.’"™

e contract which is effective Oct. 1 for one year,

ides for fhe ca

-. working wee}, the mén to receive $I an hour. for the

nuance of the forty-four hour,

‘regular week and $1.50 for: overtime work. They are.

paid 95 cents and $1 st! an. hoot overtime under ‘the a

agreement nt w ine

Sie: hepecieher 8, 1934.

September 29, 1934. -

eptember 11, 1936.

§ Jourrial of ,Commere

* Journal of Commerce, :

. te Journal” of Commerce, ptember 18, 1936.- :

11 New York Times, SeptemDer 18,1936. =

12 New ‘York Times; Septembed\19, 1936.

a i

: oe

instal trem Testimony o nion n Representatives Before

: the National Longshoremeni’s Board: in 1934 ‘Urging .

' thirty-hour av erage per | week? - ets

+ "66

-believe it is four weeks.’’

one or two weeks,

way: ‘a maximum limit of 120, hours_contained in a

ruling conceivably be put 36 one week,.but we hope. it

will not be. ~

case of a rush and.of something unusual occurring: in

a-week, the men can work,as long as necessary, pro-

- viding that the end of the: ‘four. weeks it will av baie

. cup.

maximum, naturally.. That is provided for, as it has

, been from time immentgrial, ‘by overtime: rates’ after

. the normal shift has been exceeded. They: are: not

going to‘ insist on any Ay SEE shift per week. If. it

is‘necessary for the:men

es Vol. 8, pp. 398- 399.

r in three weeks, but at the end ~

of the fourth week his ‘average would be thirty hours -

“That is to i in might exceed ‘thirty hours in,

““Q. [Mr. “McGrady] I ‘suppose that means s that: ie

“A. That is’ right. ‘Wherever possible the med

would like to see the shifts limited to a-reasonable: .

ecause of a rush of: work to.

"work ‘longer .than. 30. hours a week the men have no --

objection. They feel, though, that in the long run-an -

- equitable distribution should be worked out so that. -

over a four-week period the 30-hour week should be :

the maximum.’ Let: me put it this way: After-a man .

i Trinsecigt of Proceedings before ‘the ee Léngshoremen’ ae

wh “4Q. (Mr. Cushing] What do you mean by your

|The issues as Adaea aamiain. SOD

oe proposal that the maxitinum hours, of labor be limited :

* .to thirty hours per week averaged over a period of I

four-week period. ‘These 120 hours might under that:

Establishment of the. Six-Hour REE ET. ea eas ,

At, the hearing. before- ‘the National es or —

| Board, Mr. Melnikow , Fepresentirig tlie International Long-

ss shoremen’ 8 Association, testified :!

oe eee a eile:

* has worked 120 hours during a, four- week period. the

men feel that he should be permitted to rest, and let

my, _ another man work in his aes so as to distribute the

ie: work as evenly as possible. Pr it ,

ys Q* [Mr. Cushing] Now, i in order that I- ‘may un- |

= — derstand- your-six-hour proposal, is it your i ‘idea that

"in this proposal there should be men available enough .—

..in the industry to replace any man after he shall have

worked six hours? | .

_ “A. [Mr. Melnikow] ‘Yes, I think that, the LL. A.

is willing to do its utmost .to give the employers the .

number of men required at all times.

- .. “Q. T am not referring to the ILA. I am referring

' . to the question as to whether or not the ‘six-hour ‘rate .

= overtime after six hours is designed to in-,

crease the wages or to prevent the working of men in®

exeess of six: hours. ~~

ae Ati re of the 1. 3. A. to encourage the

a ut in six hours when-

erever possible. As I have stated, I believe

a the: I. L.A. -will underfake and is in a position tq fur-

“Tish the men to take the place of those who have worked -

the six hours. ~ -

‘

* nd ; ® :

. *Q.'[Mr. Paice} Is it not a fact that owing to i

fact that. there were too many men on the waterfront, .

: and we speak specifically.of San Francisco, as shown

- 7°. oe Employers’ owit figures ‘who claim there are too ~~

many men, that the only way in which you could puta ~

. spréad of work. progr am in was throug th a limitation

of the hours?

Bates? GS Melnikow] 1 think that is almost mathe-.

matically true.’

Mr. J. Singer, also representing the. ‘International Long:

-shoremen’s Association, further testified at.the hearings in’

Portland: 2 ean ieee ee oak. Eo

' 6Q3 {Mr. MeCulloeh] On the question 6f the 6 hewe ,

day and the 30 hour week, I understood you to. advocate _

- “2 Tbid., pp. 422-498. ---

*Ibid., Vol. 15, pp. 22-23.

\ |

*y ;

ee.

¢ that i in the Wrerest « of spreading atiplpymeat as widely

as possible? )

“A. [Mr. Singer] . That is i

**Q. Will you explain w

advocate tlie. payment

In othér words, to the:

vat the same time, you

me and. half for overtime?

tent that overtime is engaged,

down?

“‘A. As far as the overtime is concerned, I always

figure the feason that tiere is a penalty put on over-

- time is-to keép away i the overtime proposition.

That is why all trade labor movements have asked for

_ requiring. you to work overtime, As far as I am con-

"cerned, I would rather not work overtime.’

' "a

“* _. e i 4

“Qe [ Mr. MeCulloch As I understand it, then, the -

-’ employees have no real objection to the 8-hour day ex-.

- cept that it does not. —— the work far enough or .

‘* among enough men? —

-“A. [Mr. Singer} That is just the: reason why we

are asking for the 6-hour day. We are objecting to ghe

‘+ 8-hour day because’ there is not enough. work to go

around. Be

**Q. That is. 5. what I understoed and that is ‘sie you

advocate the reduction ftom 8 hours to 6. hours?

‘‘A. Surely. It is not to get the overtime.’” —

_— ae Tey

‘Tbid., Vol. 15, p. 24, Aye A ee renee

-—-is-not_the- opportunity for- spreading employment. cut Ps

_ a penalty on overtime, in ordex to keep fhe, boss from

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.