# Brief for the Respondent in Opposition — Dutton v. Cities Service Defense Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1377%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1957 - **Citation:** 355 U.S. 828 ## Text ’ 4 . * 5 ms *% $f eA - rg + . “ cael § 4 . : fe | ~~ eo 2 j i Bw ee om naancnee mata - 4 wo “ ATES. , rs ST = + ‘f) 4 NITE } t s 4 4 3 4 4 SUPREME COURT OF THI ” © Pad i F eh’ :: - e my _INDEX—(Continued} : ss ! Se rt 14 u > 4 PVtile } 1} : . Debates on the Floor of the Congress Relating to the History of. the Lesislation in Quesiion ° - - | *) ’ “yest, 0 1 ? ’ e? ’ is : \ i m, pres hy de D, med) 5 és IO, ’ - ’ } ? +. ; . _”~ ! ara 4) } . 4. P ‘Teh, 6.1% * . , o - ba * No, 249 ty, Bohs £ ; a - a : UNS ES j = A = y / as oret OCTOBER: TERM, 1957. . * -~ % GLO DET PON, 67 al Pe titiones vs CFTIES SERVICK DEFENSE . CORPORA TON | . Fee S fit niteont ,’ ° “ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE BIGHTH CIRCUIT a ee eee . . BRIEF FOR RESPONDENT IN’ OPPOSTEION € { ye ; : ~ . \e; OPINIONS BELOW 4 oF ftmtic ‘7 ; ‘° j yo ’ Ltie Citations toc oms of the District Court ond 9 ; 5 } ; SS } : ct gry = “oa 4 the Court of Vayu ais are set forth in Tie Petition. » i a : F JURISDICTION rey) aE 1 ee et: - 4.1 ; Bihe® GUNES tICTiOnad requisites aFfe Raeaquatels tf forth: _ "SUPREME COURT OF THE UNITED SPATES “= STATUE TEMISVOLV ED ; Phe perteent provisgpons ef ‘the Rat Labor Standards |. Act and the Portal-teo Portel Act of 1047, involyed in these consolidated causes ‘are referred to in the Petition, if page r thereat, riniel ails? set cut aT “Apopre nec § A nt prcgiee’s YE20 of the Petition. . . OURSTIONS PRESENTED st ; = e . rf Ee Petitioners have elected te presen the issties Wn These cousolidated Gases in the form: oof fous questions, but Re spondent’ respectfully submits that all four of said ques cars , athe Sey ‘ : ° tions are embraced? Within the following question: 8 , i ¢ ? faa eee * ue Denes Section Poof the Portal to-Portal Aet of LO47, bar ALL ucliims arising prio® te the effective date of said Standards Act for any actividy CALL ACTIVITIES), ex. carpet gv ben sted activity: im biel le compensable hy eythies Act for overtime compensation under the Barr Labor (1) anc express provision of a written or non-written con tact, OF, et i a-cHsfoms or “practice COVOLTHY such HCTIVITY } ° . . SLATEMENET. - : Petitioners” Statemeat, commencing on page 3 of the * Petitiou, is substantiaily corrects but Respondent) supple Pee eee - eas - . miehisn sard statement by the foliownre : wi. Hy Le hs Bae ea as Baa To. PGR CPT, oP Petitiogers have fatled to explain the nature of the ! aye ot ! F CLIVIV TUPI thightiu to Hey cotiplaints ii the District Courte ese > os ‘se r Pie wats Te Pee ! FESi5 following pemissauee of ie Portad-to Portal Net. Phiese con . 2 s ‘ : . lhe Ht Ae se ' 2 ne Se arate +] ‘ : } ~ohdsted CHSCs WET Penaino@ Wiese tne 4Act- Was Pissed. 5 ‘ - : © at > r ‘ threvibvceettertant a Vives Whe eek ‘ P ; ¢ Ryspendent Pirserreadbart aces miiended 1S ehin wer te lec thie - . : . 4 ’ e i - a } provisions Of the Net, and-particulariv Sections 2 and 4 ; ae ‘ Sere e P * Pdr Yo) \ - ihe | . . re . ? J thereat (iS ig !- \\ MPeuUpa ly, Tht | ebitianers amended - - ’ = a a ES 3 v ry ° si . } Their copiplaints ty MON, ainene other things, that is : ; \ * veel = 7 ‘ esate $ | m9 ay - i : ‘ thie Calise~ Of cestyeatn fal thre Varrious pelouinidatds TiVGadIVe oi Prati lits : ri? ee fosa] ? 1} . ‘ HDTV @FEsile oO ‘ ‘ itdidre of ee erplever to pay EE ee gr wih awetrwits atch ts ehonced iti prior a) Mba 14, I 17. when Wid aetiIVItY Was comipensabke by either a ee custony or praytice "> and be further alleging that the’ activity loro ow hicd thie metion ds bereonauedes Wis enuvuged in hy. the Niirlais employers during the portion “of. the’ dais: with y ee oe a ° re Oh | da . ; qu Wiiteeh@it Wipes: sc) tricteds conipensd ble iis ashbave set > “3 7 t tih] s pre | : ; ; . ade re ri ” a, _ e , ° “ ‘ il alas mee ; | CLitientiesr~ Gltavead gar evgalernee to suistalti either of tTies Cpthagtaeh Gal Hestsations sited wetter the Alaster nor. the Diatris f Court nitde ANA findine of faet that ststains therm: ' t nuk, On The contrary, expressly foundthat such activities OWHEESS FES competsabte eyihey hy cOontraed CUstoln, or periie i* - obee agen i eS * (est Es eh By acva * P : F ° ae . : , z Py ' . . 4 - Ps ~ Hespandent does net agree with the Femiark oigde on i pre a= were rendered herein constituted work or ‘working time’’, it. follows: | (1) that such -ae- tivities are ain integral part of the principal activities of the respective cliimants and (2) therefore are Hot barred hy the provisions of Sectron 2 of the Portalsto-Portal Act. This contention ¢s showneby the following quot: iPlons 4 ke nH from the P etition : ‘These emp lovers believe if fair to say that the activities in (uestion were so closely related to ctheir primary activities as to bean integral part of them’? (Peétition,7.) ; “They (sucht activities) are so necessary to and so closely related to the principal activity as to be an integral part of it fmd compensable as sneh.’’ (Petition,ts.) ‘ = “Tn the instant case the activities in: question have hoon found as ai faet to he RECESS SALTY: to the performance of the prime ao activity and an ategqral part oft. > (Petition,17. oe r ; ‘ . ‘ ” - Taflen i Marydin Ne hrasha ¢ Pome “a ( nl beiu. SUPT: “are (lis- rea, fopeiey Uh ; | ‘ Ron twieviishiwole Prom the distant cases. aT those CiSeS, the ’ . e ; “e | : . 9 principal duty or prinary aetivity of the telephone opera tors im the first case amd the guards im the second case was the passive act of watting, In the language of this Court,.in Shidmare vi Soci & Company, sipra, ue Chip pioyvees in the latter cases ‘swere cneaged to walt’. Phe’ telephone operators. whe on duty were waiting for calls ‘to come tn and the guards waiting for some infraction of the rules adopted for safety measures or against’ sabo- tiige, That was what they were hired to do. Sinee the telephone operators, while sleeping, were required 10 ane -wer incoming calls, and guards, while eating, weré re- quired to be armed, in uniform, and on the alert, the Court held that they were entitled to‘compensation therefor, since they were, during all of the time, of duty performing the rervy work or activity which they were employed to ha, e Almost 906° col the total recovery in the inste nit: TUSOS is for activities sucleas those*appearing in the footnote “Ff page BO of Ay popoe Helix B to the Petition wil the 7! = rin- ute riding time atlowed the cuards and mentioned in thre text on the same page, . of, - A Handing In the instant eases that a certain activity coustitiited werking time ds not eqnivalent to. a finding that such avetivity -is an integral part ef the claimants’ principal activites. The expression ‘working time?’ to des- inmate the various activities for whielt a recovery Was stis fatned, was used throughout fhe decisions of ‘this ‘ alge) Court oin the followine eases’: Armour & Co. » ue . aa Wantock, ‘ Fant: mat te 176 a 1144 y's Shidni Sh eet Nyaciff . e.% os \ ? - thee 7 & ('0., 823:°U.S, 184 (1944): Anderson 'v. Mich mons: Pal - eo fory Ca, 828 TS, GSO (1946), “ALL of these cases were deeided before ana involved eladiuis piste Prlor to thie Passage of the Portidl-to Portal | ts “and, althoneh all fhe time involved in those cases’ was found to constitute working fine. the expression “integral peart of the prin- cipal aétivitv’’ will not be formd-in those decisions. ‘The “> i> : ‘ * 2 : ae ware es ). BAR ee : | si{@rmexypression Gailge dito Use, PY Tie courts folro Wit the Miinaiitve 3] thie Portal d ' bast tal A i “nid When properly : epinlaved Wires lesead fo chesrerinade itt rehiviiy Whiteb, ltr eh . ven biise, Wits so lOaSeIA redated lei tite principal ACTIVELY iif theclatuiant as lio 1% nat Helin ne fiscbele part thereat (such as (ye cactivity of kifesshafpemug in Mitehell vie King Packbrgk a, B50 tee M60). the right to recaver for which, as orertime wider Section Af tie Portal to-Portal Act; Wasuot dependent upoma showing ticet it Was compe tisable | weder a eontract, cust or prac tice. ‘Petitioners contend that ee aes are governed shy Steer vo Mitéhell, 350 U.S. 344, 1 whieft this Court held that clothes changing cined diay. ander the tacts (lis- this By fie latter CHS, constituted an integral” part of \ ~ compensable as wopking time even th medi there, Wis no contract, custom or practice to pay therefor, and that such’ claims were not bar reel by Sectian 4 of bie Portal-to- Port: il Net, Petitioners’ Contention is Un Seu al for the hollowing rehsons:® (1) on finding that the respective activities of the PetMioners constitute working tiima is not equivalout tea fitedie that,suele activities are an nitegrak part of the chatisents? respective principal HeLIVELLES 3 (2) there. fustriet Court that the™ietivities for wiheh a recovery. Es souedif @eustibuted HW ¢ nieeral reared af the prinetpal ae ties of U1 coOPettiion ers; (. ) even Lf thre were a finding that sueh ae fiy yties con Mute dian intewrs! part of the Peti- . “ } - : Hiogier® pringipal activities - they world nevertheless be: . y . ae . etrred under the provisiotis of Section 2 of the Portal-te- ortid Aet, ~inee they Was re cpiert nine CONE! pe It: able Sy COT: trac - scnston oP Practice for These C@gses are reverned Neotion mot the: Portalto-Portal Net and not by Section whieh wasn volve di n Stearn we Miteha i, SH PE, o the. principal aCUVETY of the claimants rhe Was the ‘refore “is no finding fm the present eases by the Mater or the - cal ae Sie eae Tt. oh as : Fa ?he burdes Wibse JT Petitioners to prove: the esscitial nlewations of ther amended > Comptaing. Thev: have not: sts! juined such’ burden nor fiave they shown that. the hietthy CHrenit’s decision is clearly érfoneous cunider the provisions of Rule 52 gf the Federal Rules of Civil Pre- celgre. 62S Ge Gel’. Se Rules 2.) - ; . ? | ae : ; THE DECISYA. BECOW IS CLEARLY CoEeCT. ALL oe Ob TEER ACTIVITIES © FOR WHICH A RECOVER Y 18 ™ SOUGHT ARE BARRED BY SECTION 2 OF THE PORTAL-TO-PORTAL AUT : ‘Me pose ; Petitioners naively argue that there is no substantial diffe ‘rence di the ineafiing or effect of Sections ~ and 4 of the: Portal-to-Portal Net, We quote from their Petition: “The tWO sections are obviously substantially identical in “meaning and Janguage and identical problems arising uuder them demand identieas treatment. - : “Netthon the. provisions of the Act’ nor’ .the reasons for the “Act Justify a. different treatment. Warder thatwo sections ‘for the, sume activitue Sec ton? relaTgg to activities performed prior to Mav 14, P47, and Section 4 applies to ae tivities on or aft Mav. 14, Ihe. Et seers: ineoneeivable that the Cone réss would have ieaaa that the same eet iva edyipensable after May 14, 1947, but not compensable beware May 14, 1947.7" ( Petition.) is pirstied iy thie SHie cM plovee woenld bee Obviousiv, Petitionors rest their eases upon the above confention.® To amounts to saying that Congress did a Po Poegs A : ae * 4) : soe hitile thing om the passive of the Portal-toPorteal Act. The Po Ciremt Court of Appeals for the Fiehth Cirenit. in its recent decision in Dunning v. The 0. Or, nance Or po afion, 203 Fed. (2) 902, Gh: anded down.ot rehenrine erated , —~ = hha ‘ nifer. its, decision mi BUS fe odo (2) 929 following the de - 9 7 = | oe [oe ’ A 7 ~ ~ © cts kopy Of thas: 4 ‘ourt ine Sleiner v. Vitehell, 30 US: 241, eid Mir bellow. Ning Pacheun sah acu rd) US, 260), cleanly rary omni zed the distine tron be ‘tw ‘on the twe scetions, nnd thei iv li Trerent purrpeses and ctteats. Anil i Hits Opi joa in the se Consolichited cases, the Kiehith Cire uit. lites dis- cussed the provisions od The two sectIONS In some detatl and Hes corres tly held that it was the intent and purpose of thie (Toneress to bau under Section 2 all claims for all activities not cofipensable hy contrfet, custom: or practice and arising: ae to the enagtment of the Portalto-Portal. Act; and 3 Tithe: site thine the (‘ourt, in “Its opinion in the insti int cases, quade the comment that if these cases rere gqurerhed hu Section 4 gestead of Section 2 of the Aet it would have felt commelled te held that’ the single activity of clothes-schangine and hathine Involved in a small proportion of these consolidated cases “would ate heen recoverable on the theory. that such activety would have constituted an integral part of the’ principal activity .— > of ‘the emplovecs Whe CNEL ul the Fe in although there Was no contract, Custom or pratetice to pay therefor, (Ap- pendix B, Petition 33.) . Anil ith Steiner \ : J Mit ka ff. Supra, this tc: aunt recog tal zed that the yrimary¢purpose of the Congress in pasting the a Portal-to-Portal Act was ‘to meet an “eNEsting emergency? _esulting Prom clans which? it allowed ih aceoribainee with . Anderson Mt. Clemons Potts ry Cam pany, O28 U.S. 680, would have created ‘wholls unexpected Tabilities, immense. in amount medoretroactive in operation’. Eleis ULpose Was fulfilled T@Mhe enachuent of Section "RRR | - : “ . Then this Court potite e ont thi ‘ Rakice 4 of the Act, Wliich eoverned the activities involved in the e@laimis in Stedare r v. VMitehell, pe rmnitted a recove ry “where the LY are iy inte@ral part ot and Indispensable o the principal activittes eyed thoueh not tiie econimpensable hy eorl ract,’. eustonrt or practice, she tt 7 9 . oy Pe ae ey : 7 ee Petitioner Cus . > rs Tr th Hr Petition here - Petition.) } Sav: This ( ‘ourt lisis breedel ies the aetivitpes in Tues g. iol EOL un ager Section 4 of the % ortal- te-Portal Act. There is no substantial difference be- . tween the provistons of Seetion 2oand: Secon 4, and thiere Is ne justifieationr for eiving a ditptont tregt- ment to these activities under Section 2 than they pe- Ce ive under Section 4.7" a , We cha Hengwe this statement on two Grounds: First, Leemtust: this: Court has never ‘he dd th: ‘tall off the attivities -mThvelved in these Cases soul | he recoygrible if Section 4 voverned ne Issues Herein, Nearly 90° of the total suri volved in the judgments hereta represents recoveries fir walkine, riding. waitlue for buses, whloadine fron. busesceied Walling to clock out, ete. (See text and feotnote, Appendix Boon page SQ of the Petition.) > These aretypical -prefitiunary ane postiminary activities which are barresl even under Sectloh 4, unless Smade compensahl e hv contract, eustom or practice, . Aid Second, Jecause Petitioners are saving, in oeffect, that the Court was not. y istified In Ws Optom ta Stetver ve Mitehell, in makine a stindtion he tween thet prrpeases and effects of Sections 2 jd 4s ; Ses . ° ih The Chie! Pusties, in thie O1UNON ink Steiter Wes Maiti hell, se «ited the colloguy between Senator Cecptr and other Sen- e . i . ! a : q ators in the Senate when Senator Cooper Was speaking on vehalf of the Cominittee “Bill to stew ‘that it was thre intent of the Coneress to preserve causes af action under, future chains arisine nider Section 4 based Wen an ae tivitys whieh Wits rt intewral partoof the principal Retivity * of CNC AEOSECY (Sco Appendix to opinion ln Steiner vy, Matehe ye 5 H s ‘ie hope Poh. ) Therem. args of Senator Cooper and the questions pro- . 4 ; : sortnde a to yj 1hy¥ hey Mr: Ve ir: nth nied ALY: Bsitkles Were . b . ‘ ( y Z © 14 os - - 7 : ; : : % rll ilirected te t4yi cal yt ancl Pils pros: N of Si chiow t sic its a ‘Thee Noah activitS Which colistituted an Integral part of ‘the prelfininary statement of Air. C voper fonnd af page 2296s / af Volume 92, Part. aay OL the € OUSTESSION, il Ree ord which ringipal activity. This is clearly Show? by “the preceded the aforesaid colloquy, namely: Mr Pre sident, should Snow lie to pass fo the provisioies of the Gill as-. else elaine.” eRe we Ef it be kewtpin mind- that the expression * principal ee “is nowhere found in any provision of Section 2° tf the Portalto-Portal Aet bit that its use is confined tte ' Che provisions of Section 4 of the Net, it apparent that the expression ‘‘igtegral’ part of the principal activity’* should not be used in connection with any claim arising niider Section 2, but cis properly apphed only te: elaiins avising under See tion, + for it was the intent of the Con- *% gress, to bar under Section 2 all claims for *any activity (all aetivitios) net compensable he contract, custom: or , practice witliout regard fo whether or not such slams hk & or we ie pat based nparie ob dre Ly pe: wf achinity which ° hey intended te, preserve mniler Section 4 wands , the de fing- . tion of “T‘utegral part of tire primecipal activity’ a If this ix ey in rimad, the infention of © OHLress witlt respect 40 the ait ‘ferent ‘effect of the two sections is iiimnee ersstal ® - a : clear, : ; : ° ‘Tn the course of the opiuon it Shi iner Vv. Mitchell, this Court sail: | — , is ‘On the whole it is clear, we think, that while (fongress intended to outlaw chilms prior tp 1947, for waves based on «@/f ein oie activities wntess provided. for by eontract or ewston: of the industry, racdi TE ot ¢ COUTTS. ae fhraitios performed hefore-o7 sitte r regular hours oft work, it “did not interid ty deprive enplovees of the benefits of the Farr Labor Standards Act (as to clatmyp arising after the en- actrent of the Portal-to-Portu! Act) whe re they are . » = % pee 4 cid infernal part of and IndiSpensable Lo their prin : chp netivities.”* (Ltalies ours.) : \\ ‘ Gave pgatian cthe Lbe vty ond ise rting in the.nhove ctuetatio iT 11 eC oparentie iieaal- at: ate Pipe ae ‘as to ¢ lattas aris he after’ the ‘ Lae ee of the ke ortul-to-P ortal Act’? biee- Soe At tee rats SA . 2 “ cause ave think yas did’ the Cirenit.! ort of Appeals for the. ciehitir Cirewit pe its OPInLon in the iuetaut eases, that this “Court, ino the hetfer part of the above quotation, Was re- ferrving ee to claims arising under Section 4.° (See Ap- pe Hain $3, pave S34 oof the Petition. ) é = Vet ‘ despite ihre decision in Sti hie Biv Miteleell, COUNSEL bar Petitioners arenes that TH seems imeonceivable that the Congtess Would have ttended this if the Serre netivitles pursteel Ly de sce egiployer would be compensable after May 1. 1947, dnt net compe Misable before May 14, 29477". a | a 7 ‘ Since thi Ke ‘out, in the Steiner Case, was primarily concerned with the proper construction to be plaged upon the provisions, ot Section toof the Portal-to-Poéstal Act rather than Seetion 2, the Court, i citing amexcenpt from ihe Seunte debate on tie Conpuittee Bail, referred anly AO a- ORT §; of the debate dealing with the intent and Peli pase rv ° ; of Seetion 4, d Lee Appendix to Op bOn. of the Court I] In Shear We VWitglr supra.) We-trust that we will not belabors the potat Gf owe « some additional excerpts tte Patican bast hy the Llonee é sh Pega 4 a aes =f SN) Fs AERA pe Sy ERE a, F : nnd the Seinte to show conpelusively What Was Hi the rripnied. from: the debate on the Corl of the Congress In passing ®eetion 2 ef the Portal-to-Portal eae Nae | e . . . ‘- i x 47 1 ban | . nd “7 Wie Gwenn fad been the anthor of the orteial bill : A ry 2 ° » ‘ ’ | -—-_ | d 4 ‘ Fi P in the Elotise GEER 2I5ST) and Pad been Gne of the House Conuuittes whielr bad conferred ‘at leneth with a Senate. « pranegt ten OTe af. WIG i rietuibed = Was Senator (Cooper, in. order ‘t@try sta harmnefize the views of the Plouse and - ee - . 4 2 > . . . se Sonate. with Tyets dite | 1 thie PELOVISIOUS Of they Proteases be . . e Portal- to-Pr et: al Act.- -As 2 result of the conferences bee tween these twe, conimittecs, a final bill, later referred to ‘as the Coinmittee Bin, was drafted which enibodied es- court in thise kaye. > os aa . dy an * President, is that morally, 1 ! hy icaliy, righ ap hie colin bbber ‘bee these TWO Cilses meray Ty Way of- illustration. © There. are others —cheek. ine riaehiners Iny He ig rebefore he begins to perfornf what are called lus prin%fal aetivities for pay; adjusting and uu ng ssifety equipment, After all, Mr. Pre Siders, djs tine and read presting sateiy equipment ryeyd only saves the reall, it SELVES the worker fer thy company. He does that, on the premises of the emntover. Dts red: ation to his work nan essential way vet he, like the man who cHecks. rachiiery, Mir. Preside he world bays denied Joy for . re pe © “ . ~U , work fe se done, Under the Committee bill. So lous the tesehil whe adjusts aid rend justs safety equipment receive from this committee a prohibi- tion of the collection of bis claim: in the courts of the land. “Atiother sis one engaged in re- pairing, oiling, or washing machines. That would di 6 wyer the committee ball, wait fit nsable int the future but not compe sable tu the past. Others are checking and sharpenmey thols; rest periods after arduous toll; biventory taking; periodical pliysica! examination when performed upon the piremises of the euiployer and required by the emplover; travél time in plants or mines for somie cor siderable time: cleaning and washing off dirt, andthe like, “ Phoke are just oa few cases, Mr. President, whigh hare been all d tomy atteution as claims as noe “te exvisting rights that will be denied under, the COM- mittee bill if it shonld be adopted, but would be ‘recognized under the committer bill as to, future rights, Se Ll say. Hat I’sce no reason whi the committee should: have made a distinction between the past and the futire in the recognition of what MLS compensable works”? (Italics ours, ) Congres- sYonai Reedrd, Vol. 95, Part 2, pages 2301-2502, - Thus, Senator Pepper, like Petitioners’ counsel, argued that he ‘vould ‘see tio reason whit the sommittee should have made a distinction between the past and future in -the recognition of what was compensable work’. Pain: lv, hie was protesting the fact that the Committee Bill, un- - der Section .2 thereof, was barring a recovery for the identical activities which the same bill was preserving under Section 4 thereof as ‘tan integral part of the prin- cipal gible! Ka Nevertheless, Congeess enacted the Com- mittee Bily inta, law as the P Orn rl- to- Portal Act of 1947, over the protests of Senator Pepper and its other opponents in the House and Senate. | . ? . . . * . * c It is, therefore, clear that it was. the Intent of: Con- s to bar, under the provisions of Sectiog 2 of the Act, Ws a a’ a » coo , 91 w ‘ aa | | ° all claiuis for or on atvcount of auy activity (all wotivitir s) of an euiplover engaged in prior to the date” of the en- cactment of the Portal to-Portal Act cept aun activity Which was’ compensable. by either ‘contract, custom: or ba . & Priehice re a . bcp ee IV 2 %s THERE IS NO CONFLICT OF DECISIONS BETWEEN THE CIRCE IT COURTS OF “APPEAL °° On page S of thie Petition itis asserted that tte de- ‘cision of the Kighth Circuit. in the instant cases is inf direct coutlict with the decision of the Fourth Ctreait-in United States Steel C by . ~ Burkett. 192 Fed. (2) 489; the decision cof the Sixth ( oo nn Ps FL Stock & Sous, Ine. Thomp-: osoit, TIA Red. (2) 493; the dec Hshout of the. ‘Seventh Circuit: in Frank v. Wilson & Co, 172 Fed. ( )), 72; and the decision of 4hie Ninth Cireuit in Biggs v.xtoshua Hendy Corp, 183 Med. (2) 515. All fonr of these decisions cary be dis- tinenished fron the dee ‘stow, ti fhe Biehth Circuit in the. \ inst int cases, a ' ~ In United ‘States Steck Coa, Vv. Burket, the District Cour found, ‘5. There Wi iSoath express oral contract between the defendant ane the plaintiffs to pay: the plain- | tiffs for any overtime which they) worke di as “a patt of their duties in the capacity In Which’ they were en ployed and the thirty ininutes before the rewwlar shift and the fen minnates period after thé regular shift were made com- ** : pensable by an express contract, In FLV. Stock & Sons, Lieve Thompson, the District Cont found as a faet that the original contract of eme- plovinent muibrac eda forfyarinate lunch period which the- Company later r, purely as a bookkeeping. transaction, de- ducted from the 48-hour work week “in an effort to meet the imimimuans requirements of the Fair Labor Standatds e* en ployed. oT ek D oe) £ = ma oe . a . « 7 . Act, for® a: 44-hour work week, oh Ra ne change Was . *: i Atrally mide Mm the avorking habits At the © smnploy e es, nd Vai they jeoutinned — to-do the same work during the “forty iT UTES pe riod for Which Mey had oxiginally been ‘Frank +. Wilson & Cou paruy, the, District-t out. ai oi it the « ove rime javolved in that seit” was COVE RE eu by the. UXPTESS “provision ‘of oa wTitten contract and. the Seventh Cirenit; im commenting upon ‘the: testiniony, stated: .° We Cone elude-that the activities of the plaintiffs _ were ‘covered by an express ‘provisionZoh j y written cone traet, and that) the Portal: to- Portal Act of 1947,-is not nobar’ to: pypseias tering dno’ this action.” Th Bigas \. Jochea Houdliy? C OF DP, it apears that ‘fap-. pellants were employed by Ay: pellee pursuant to the pre- Visions of a collegtive bargaining agreement amd the € ourt found that ‘tthe work for which: ‘OA POH SATLON is being claimed is the’ sane Rana of work eis Waals performed throughout the remainder of ee work ook” | This #! of the aetivities dav alved in the abeve cases. were covered by. COWT: act. In the instant Cands there was iO Contract, custom on pre eTICe to pay for any of the ac tivities here involved. Vv . = i - oo. re : : : a. of the o¥ertime for whieh, reCovery We think we havecamiply shown-that there is no merit 17}, : in the above contention. The action of the Kighth ireuit - “Court of Appeals in holding that all of the activities: in volvedcin the instant ¢ases are barred under Section 2 ean have no possible effeet ‘upon the allowance or diss. allowance of future cases ‘arising under Section 4. We dhaive ‘Shown that it was. tlhe intent of: Section 2 of the Portal-to-Portal Act to bar any ane all activities not couppensable by .vontract, custom or practice and which were based pen claims. arising prior to the enactment of that. aet; and that it was dikes Wise the intent of Congress fo preserve, to. fhe Workers under: the provisions of See- tion + any activity which is so closely related to a worker’s principal activity as tos be-an integral part thereof even though not made compensable by contract, custom or prac- tices ft. is True that, approximately 90. of the prese nt claims: involve walking and riding .and other ‘‘activities Whieli are pre ‘Liniinary on » postliminary?’ to the activity for which these men wet ‘eo @miploved, and that Section 4. ex. pressly | WATS walking ania riding time and so-called. pre- Jinastapary and ‘postliminary, activitte s unlegs such activity ‘is made compensable by contract, custom or practice, but it saves to the worker the right te bargain for payvinent of such netivities, and, as we have shown Congress It tended, and this Court has already held, an activity which ix an integral part ofsthe principal activity is preserved ander The Provistons of Section 4 on claims “@risine after the enactment. of the Portalto-Portal Act, even though snot made compensable by comtract, custom or practice. So far as we hate heen able to ascertain, these eon- solidated CUS ‘are the lest eases pending it any? etreuit: involving Claims. governed: by Settion 2. We think the Steiner and King Packing Company cases have already served as enides for-aftornevs and the courts in determin. ine’ the law applicable. to Section 4, and further, that if ; oo) ie : . J owe are niistaken in our belief that these consolidated cases are not the very last pending in any of the courts invely- ing Settion 2, then the SteHier decision nevertheless polity thie Way to oa disposition af those ‘cases, We believe that thie decision if the Mighth Cireuit (enurt of Appeals Wi the itistattit Cases heus properly interpreted ‘the decision of this Court in.the Steiner case, dagul tliat thre opinion of the Kighth Circuit: in these cases lias stated with efarits "the daw applieahle to Section 2 of the Portalto Portal Act. CONCLUSION ..Por the reasons herein stated, it. i« respeetfPuily “sah mitted that the petition for writ of certiorari heredy’ shout be cdemted, - : 1 / ae ; i Respocttully subritited, + Henry (.) Wanner, dn, _. Fivst National Bank: Puildine Slirevenort,: Lonistiona : Moone, Beinow, ¢ HOWNING & \Moerecuria ’ Meannk HK. Chowsine F201 Bovle Building ; yey Little Rock, Arkansas tre pened Pas) lig eaTEnT a | if --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1377%3A3. Public record. Not legal advice.