Workers in a plant manufacturing wet storage batteries, in which
extensive use is made of dangerously caustic and toxic materials,
are compelled by vital considerations of health and hygiene and by
other considerations to change clothes before and after work and to
shower after work in facilities which state law requires their
employer to provide.
Held: changing clothes and showering are parts of their
"principal," rather than their "preliminary" or "postliminary,"
activities, within the meaning of § 4(a)(2) of the Portal-to-Portal
Act, and the time spent in these activities must be counted in
measuring the worktime for which compensation is required by the
Fair Labor Standards Act. Pp.
350 U. S.
248-256.
(a) Activities performed either before or after the regular work
shift, on or off the production line, are compensable under the
portal-to-portal provisions of the Fair Labor Standards Act if
those activities are an integral and indispensable part of the
principal activities for which covered workmen are employed, and
are not specifically excluded by § 4(a)(1). P.
350 U. S.
256.
(b) The conclusion here reached is supported by the legislative
history of the Portal-to-Portal Act and by other provisions of the
Act and amendments thereto. Pp.
350 U. S.
253-256.
(c) On the facts of this case, changing clothes and showering by
these employees clearly are integral and indispensable parts of the
principal activity of their employment. Pp.
350 U. S.
249-252,
350 U. S.
256.
215 F.2d 171 affirmed.
Page 350 U. S. 248
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case raises an issue of coverage under the Fair Labor
Standards Act, as amended by the Portal-to-Portal Act of 1947 with
respect to work performed before or after the direct or productive
labor for which the worker is primarily paid.
The precise question is whether workers in a battery plant must
be paid as a part of their "principal" activities for the time
incident to changing clothes at the beginning of the shift and
showering at the end, where they must make extensive use of
dangerously caustic and toxic materials, and are compelled by
circumstances, including vital considerations of health had
hygiene, to change clothes and to shower in facilities which state
law requires their employer to provide, or whether these activities
are "preliminary" or "postliminary" within the meaning of the
Portal-to-Portal Act, and therefore not to be included in measuring
the work time for which compensation is required under the Fair
Labor Standards Act.
The Secretary of Labor, contending that these activities are so
covered, brought this action in the United States District Court
for the Middle District of Tennessee to enjoin petitioners from
violating the overtime and recordkeeping requirements of Sections 7
and 11(c) of the Fair Labor Standards Act of 1938, as amended, in
the employment of production workers, and from violating Section
15(a)(1) of the Act by making interstate shipments of the goods
produced by such workers.
The District Court gave judgment for the plaintiff, and the
Court of Appeals for the Sixth Circuit affirmed. 215 F.2d 171, 172.
Because of the importance of the interpretation of the
portal-to-portal provisions in the administration of the Fair Labor
Standards Act, and because of a conflict between the circuits on
the subject,
Mitchell v.
Page 350 U. S. 249
King Packing Co., 216 F.2d 618, we granted certiorari
in both cases, 349 U.S. 914.
There is no question of backpay involved here, because the Court
limited its judgment to prospective relief. Nor is the question of
changing clothes and showering under normal conditions involved,
because the Government concedes that these activities ordinarily
constitute "preliminary" or "postliminary" activities excluded from
compensable work time as contemplated in the Act. It contends,
however, that such activities in the circumstances of this case are
an integral and indispensable part of the production of batteries,
the "principal activity" in which these employees were engaged, and
are therefore compensable under the relevant provisions of the
Act.
The petitioners own and operate a plant where they are engaged
in manufacturing automotive-type wet storage batteries which they
sell in interstate commerce. All of the production employees, such
as those with whom we are here concerned, customarily work with or
near the various chemicals used in the plant. These include lead
metal, lead oxide, lead sulphate, lead peroxide, and sulphuric
acid. Some of these are in liquid form. some are in powder form,
and some are solid. In the manufacturing process, some of the
materials go through various changes and give off dangerous fumes.
Some are spilled or dropped, and thus become a part of the dust in
the air. In general, the chemicals permeate the entire plant and
everything and everyone in it. Lead and its compounds are toxic to
human beings. Regular exposure to atmosphere containing 1.5
milligrams or more of lead per 10 cubic meters is regarded by the
medical profession as hazardous and involving the possibility of
lead intoxication or lead poisoning. In battery plants, such as
this one, it is "almost impossible," it was testified, to keep lead
concentration in the air "within absolutely safe limits," and, in
petitioners' plant, "lead oxide was on the floor
Page 350 U. S. 250
and in the air and on the plates which employees handled."
Abnormal concentrations of lead were discovered in the bodies of
some of petitioners' employees, and petitioners' insurance doctor
recommended that such employees be segregated from their customary
duties. The primary ways in which lead poisoning is contracted are
by inhalation and ingestion,
e.g., by taking in particles
through the nose or mouth, an open cut or sore, or any other body
cavity. The risk is "very great," and even exists outside the
plant, because the lead dust and lead fumes which are prevalent in
the plant attach themselves to the skin, clothing, and hair of the
employees. Even the families of battery workers may be placed in
some danger if lead particles are brought home in the workers'
clothing or shoes. Sulphuric acid in the plant is also a hazard. It
is irritating to the skin, and can cause severe burns. When the
acid contacts clothing, it causes disintegration or rapid
deterioration. Moreover, the effects of sulphuric acid make the
employee more susceptible than he would otherwise be to
contamination by particles of lead and lead compounds.
Petitioners, like other manufacturers, try to minimize these
hazards by plant ventilation, but industrial and medical experts
are in agreement that ventilation alone is not sufficient to avoid
the dangers of lead poisoning. Safe operation also requires the
removal of clothing and showering at the end of the work period.
This has become a recognized part of industrial hygiene programs in
the industry, and the state law of Tennessee requires facilities
for this purpose. Tenn.Code Ann. (Williams 1934), 1952 Supp.,
Section 5788.15. In addition, the Tennessee Workmen's Compensation
Act, Tenn.Code Ann. (Williams 1934), 1952 Supp., Sections
6851-6901, which covers petitioners, makes lead poisoning a
compensable occupational disease, Section 6852(d). In order to
comply with this statute, petitioners carry insurance, under
Section 6895, to protect against liability, and
Page 350 U. S. 251
the insurance carrier would not accept the insurance risk if
defendants refused to have showering and clothes-changing
facilities for their employees.
Accordingly, in order to make their plant as safe a place as is
possible under the circumstances and thereby increase the
efficiency of its operation, petitioners have equipped it with
shower facilities and a locker room with separate lockers for work
and street clothing. Also, they furnish without charge old but
clean work clothes which the employees wear. The cost of providing
their own work clothing would be prohibitive for the employees,
since the acid causes such rapid deterioration that the clothes
sometimes last only a few days. Employees regularly change into
work clothes before the beginning of the productive work period,
and shower and change back at the end of that period. [
Footnote 1]
Petitioners issued no written instructions to employees on this
subject, but the employees testified and the foreman declared in a
signed statement that,
"In the afternoon, the men are required by the company to take a
bath because lead oxide might be absorbed into the blood stream. It
protects the company and the employee both."
Petitioners do not record or pay for the time which their
employees spend in these activities, which was found to amount to
thirty minutes a day, ten minutes in the morning and twenty minutes
in the afternoon, for each employees. They do not challenge the
concurrent findings of the courts below that the clothes-changing
and showering activities of the employees are indispensable to the
performance of their productive work, and integrally related
thereto. They do contend that these activities fall without the
concept of "principal activity," and that,
Page 350 U. S. 252
being performed off the production line and before or after
regular shift hours, they are beyond the protection of the Fair
Labor Standards Act.
The trial court held that these activities "are made necessary
by the nature of the work performed"; that they fulfill "mutual
obligations" between petitioners and their employees; that they
"directly benefit" petitioners in the operation of their business,
and that they
"are so closely related to other duties performed by
[petitioners'] employees as to be an integral part thereof, and are
therefore included among the principal activities of said
employees."
It concluded that the time thereby consumed is not excluded from
coverage by Section 4 of the Portal-to-Portal Act, but constitutes
time worked within the meaning of the Fair Labor Standards Act. The
Court of Appeals affirmed, likewise holding that the term
"principal activity of activities" in Section 4 [
Footnote 2] embraces all
Page 350 U. S. 253
activities which are "an integral and indispensable part of the
principal activities," and that the activities in question fall
within this category.
With this conclusion, we agree.
The Portal-to-Portal Act was designed primarily to meet an
"existing emergency" resulting from claims which, if allowed in
accordance with
Anderson v. Mt. Clemens Pottery Co.,
328 U. S. 680,
would have created "wholly unexpected liabilities, immense in
amount and retroactive in operation." [
Footnote 3] This purpose was fulfilled by the enactment of
Section 2. [
Footnote 4] The
trial court specifically
Page 350 U. S. 254
limited the effect of this judgment to services rendered after
the judgment becomes final. We are not therefore concerned with the
provisions of Section 2, which is inapplicable to actions relating
to activities of employees performed after May 14, 1947.
The language of Section 4 is not free from ambiguity, and the
legislative history of the Portal-to-Portal Act becomes of
importance. That Act originated in a House bill, which had no
provision comparable to Section 4, but rather gave similar
treatment to retroactive and prospective claims,
i.e.,
excluding coverage except by contract or custom in the industry.
H.R.Rep. No. 326, 80th Cong., 1st Sess. 12. The Conference Report
stated that the language of Section 4 follows the Senate bill.
S.Rep. No. 48, 80th Cong., 1st Sess. 48. In the Senate, the
colloquy between several Senators and Senator Cooper, a sponsor of
the bill and a member of the three-man subcommittee that held
hearings for the Committee on the Judiciary which reported it,
demonstrates that the Senate intended the activities of changing
clothes and showering to be within the protection of the Act if
they are an integral part of and are essential to the principal
activities of the employees. [
Footnote 5]
There is some conflicting history in the House, [
Footnote 6] but the Senate discussion is more
clear-cut and, because the Section originated in that body is more
persuasive.
In 1949, Section 3(o) was added to the Act. [
Footnote 7] Both sides apparently take comfort
from it, but the position
Page 350 U. S. 255
of the Government is strengthened by it, since its clear
implication is that clothes changing and washing, which are
otherwise a part of the principal activity, may be expressly
excluded from coverage by agreement. The congressional
understanding of the scope of Section 4 is further marked by the
fact that the Congress also enacted Section 16(c) [
Footnote 8] at the same time, after hearing
from the Administrator his outstanding interpretation of the
coverage of certain preparatory activities closely related to the
principal activity and indispensable to its performance. [
Footnote 9]
On the whole ,it is clear, we think, that, while Congress
intended to outlaw claims prior to 1947 for wages based on all
employee activities unless provided for by contract or custom of
the industry, including, of course, activities performed before or
after regular hours of work, it did not intend to deprive employees
of the benefits of the Fair Labor Standards Act where they are an
integral part of and indispensable to their principal activities.
Had Congress intended the result urged by petitioner, the
Page 350 U. S. 256
very different provisions of Sections 2 and 4 would have been
unnecessary; Section 2 could have been given prospective, as well
as retroactive, effect.
We therefore conclude that activities performed either before or
after the regular work shift, on or off the production line, are
compensable under the portal-to-portal provisions of the Fair Labor
Standards Act if those activities are an integral and indispensable
part of the principal activities for which covered workmen are
employed and are not specifically excluded by Section 4(a)(1).
We find no difficulty in fitting the facts of this case to that
conclusion, because it would be difficult to conjure up an instance
where changing clothes and showering are more clearly an integral
and indispensable part of the principal activity of the employment
than in the case of these employees.
The judgment is
Affirmed
[
Footnote 1]
The only exception was one injured employee who, because of the
danger of infection to his wounded foot in a common shower, bathed
at his home, which is about five blocks from the plant.
[
Footnote 2]
"SEC. 4. . . ."
"(a) Except as provided in subsection (b), no employer shall be
subject to any liability or punishment under the Fair Labor
Standards Act of 1938, as amended, the Walsh-Healey Act, or the
Bacon-Davis Act, on account of the failure of such employer to pay
an employee minimum wages, or to pay an employee overtime
compensation, for or on account of any of the following activities
of such employee engaged in on or after the date of the enactment
of this Act -- "
"(1) walking, riding, or traveling to and from the actual place
of performance of the principal activity or activities which such
employee is employed to perform, and"
"(2) activities which are preliminary to or postliminary to said
principal activity or activities, which occur either prior to the
time on any particular workday at which such employee commences, or
subsequent to the time on any particular workday at which he
ceases, such principal activity or activities."
"(b) Notwithstanding the provisions of subsection (a) which
relieve an employer from liability and punishment with respect to
an activity, the employer shall not be so relieved if such activity
is compensable by either -- "
"(1) an express provision of a written or nonwritten contract in
effect at the time of such activity, between such employee, his
agent, or collective bargaining representative and his employer;
or"
"(2) a custom or practice in effect at the time of such activity
at the establishment or other place where such employee is
employed, covering such activity, not inconsistent with a written
or nonwritten contract, in effect at the time of such activity,
between such employee, his agent, or collective-bargaining
representative and his employer."
61 Stat. 86, 29 U.S.C. § 254.
[
Footnote 3]
§ 1(a), 61 Stat. 84, 29 U.S.C. § 251(a).
[
Footnote 4]
"SEC. 2. . . ."
"(a) No employer shall be subject to any liability or punishment
under the Fair Labor Standards Act of 1938, as amended, the
Walsh-Healey Act, or the Bacon-Davis Act (in any action or
proceeding commenced prior to or on or after the date of the
enactment of this Act [May 14, 1947]), on account of the failure of
such employer to pay an employee minimum wages, or to pay an
employee overtime compensation, for or on account of any activity
of an employee engaged in prior to the date of the enactment of
this Act, except an activity which was compensable by either --
"
"(1) an express provision of a written or nonwritten contract in
effect at the time of such activity, between such employee, his
agent, or collective bargaining representative and his employer;
or"
"(2) a custom or practice in effect at the time of such activity
at the establishment or other place where such employee was
employed, covering such activity, not inconsistent with a written
or nonwritten contract, in effect at the time of such activity,
between such employee, his agent, or collective bargaining
representative and his employer. . . ."
61 Stat. 85, 29 U.S.C. § 252.
[
Footnote 5]
See the colloquy quoted in an appendix to this opinion,
post, p
350 U. S.
256.
[
Footnote 6]
See Remarks of Representative Gwynne, 93 Cong.Rec.
4388-4389; Remarks of Representative Walter,
id. at 4389;
Remarks of Representative Michener,
ibid.
[
Footnote 7]
"SEC. 3(o). Hours Worked. -- In determining for the purposes of
sections 6 and 7 the hours for which an employee is employed, there
shall be excluded any time spent in changing clothes or washing at
the beginning or end of each workday which was excluded from
measured working time during the week involved by the express terms
of or by custom or practice under a bona fide collective bargaining
agreement applicable to the particular employee."
63 Stat. 911, 29 U.S.C. § 203(o).
[
Footnote 8]
"SEC. 16(c). Any order, regulation, or interpretation of the
Administrator of the Wage and Hour Division or of the Secretary of
Labor, and any agreement entered into by the Administrator or the
Secretary, in effect under the provisions of the Fair Labor
Standards Act of 1938, as amended, on the effective date of this
Act shall remain in effect as an order, regulation, interpretation,
or agreement of the Administrator or the Secretary, as the case may
be, pursuant to this Act, except to the extent that any such order,
regulation, interpretation, or agreement may be inconsistent with
the provisions of this Act, or may from time to time be amended,
modified, or rescinded by the Administrator or the Secretary, as
the case may be, in accordance with the provisions of this
Act."
63 Stat. 920.
[
Footnote 9]
29 CFR 790.8.
|
350
U.S. 247app|
APPENDIX TO OPINION OF THE COURT
"
Coloquy Between Senator Cooper and Other
Senators"
"Mr. COOPER. . . . Before the enactment of the Fair Labor
Standards Act, an employee might have worked upon a lathe under a
contract, and his contract may have provided that his pay should
commence at a scheduled hour, say at 7 o'clock when the lathe began
to run, and he began to apply his energy to a casting or to a block
upon the lathe. After the enactment of the Fair Labor Standards
Act, by interpretations of the Wage and Hour Administrator, it was
held that certain preparatory activities such as sharpening the
tools, oiling the machinery, preparing his machinery for work, were
so closely related to his productive activity that the employer
must compensate the employee for it. We believe that, in the use of
the words 'principal activity,' we have preserved to the employee
the rights and the benefits and the privileges which have been
given to him under the Fair Labor Standards Act, because it is our
opinion
Page 350 U. S. 257
that those activities which are so closely related and are an
integral part of the principal activity, indispensable to its
performance, must be included in the concept of principal activity.
And, to make our position clear, we have given examples in the
report. . . ."
"Mr. McGRATH. I think that, at this point, we might very
definitely make contribution to the legislative history of what we
are doing here. Am I correct in understanding the Senator to say
that what the majority of the committee proposes is that any
activity of a worker shall be considered a part of his principal
activity if the doing of that act is indispensable to the
performance of the rest of his day's work?"
"Mr. COOPER. I can read the language used in the report, and I
think that language should be used in this connection, because the
words and phrases it employs were adopted by the committee. On page
48 of the report, in the definition of 'principal activity,' we
find these words:"
" It will be observed that the particular time at which the
employee commences his principal activity or activities and ceases
his principal activity or activities marked the beginning and the
end of his workday. The term 'principal activity or activities'
includes all activities which are an integral part thereof, as
illustrated by the following examples:"
" 1. In connection with the operation of a lathe, an employee
will frequently, at the commencement of his workday, oil, grease,
or clean his machine, or install a new cutting tool. Such
activities are an integral part of the principal activity, and are
included within such term."
" 2. In the case of a garment worker in a textile mill, who is
required to report 30 minutes before other employees report to
commence their principal activities, and who, during such 30
minutes, distributes clothing or parts of clothing at the
workbenches of other employees and gets machines in readiness for
operation by other employees, such activities are among the
principal activities of such employee."
"We believe that our bill provides that the employee must
receive compensation for such activities."
"
* * * *"
"Mr. McGRATH. . . . Then we can clear that point up by
reiterating that what the committee means is that any amount of
time spent in the performance of the type of activity expressed in
examples 1 and 2 is to be hereafter regarded as compensable time.
"
Page 350 U. S. 258
"Mr. COOPER. I should certainly say so, as a part of the
principal activity."
"Mr. McGRATH. There are innumerable instances of operations
which have to be performed that are not covered in these two
particular examples. I think of one at the moment. In certain of
our chemical plants, workers are required to put on special
clothing and to take off their clothing at the end of the workday,
and, in some of the plants, they are required to take shower baths
before they leave. Does the Senator regard such activity as that as
coming within the compensable workday?"
"Mr. COOPER. I am very happy that the Senator has asked the
question, because I believe it gives the opportunity of drawing a
fine distinction between the type of activity which we consider
compensable and the type which should not be compensable. In
accordance with our intention as to the definition of 'principal
activity,' if the employee could not perform his activity without
putting on certain clothes, then the time used in changing into
those clothes would be compensable as part of his principal
activity. On the other hand, if changing clothes were merely a
convenience to the employee, and not directly related to the
specific work, it would not be considered a part of his principal
activity, and it follows that such time would not be
compensable."
93 Cong.Rec. 2297-2298.
"
* * * *"
"Mr. BARKLEY. . . . Suppose that a man is a machinist or a
mechanic of some kind. He is required to go to work at 8 o'clock.
Let us assume for a moment that he is not a member of an
organization. He is required to enter upon the actual labor, which
might be termed his principal employment at 8 o'clock in the
morning, and to spend 8 hours at such principal employment. But let
us suppose that his employer requires him to be on the grounds and
within the shop at 7:30 in the morning in order that he may spend
half an hour sharpening and preparing the tools with which he
himself or his colleagues in the factory are to work. Can anybody
say that, under those circumstances, the 40-hour work-week has been
complied with, as intended by the Fair Labor Standards Act? If he
is required to do that every day, instead of working 8 hours a day,
he will be working 8 1/2 hours a day. If he works 6 days a week,
instead of 40 hours a week, he will be working more than 50 hours,
every moment of which he is under the control of his employer,
working with tools which belong to his employer, and he must abide
by his orders or run the risk of discharge from his employment.
"
Page 350 U. S. 259
"Is that a part of his principal employment, or is that
preliminary; or, if he is required to do it after the close of the
shop in the afternoon, is that a part of the 'postliminary' work
for which there is to be no compensation unless there is a contract
or unless it has been the practice and custom for the employer to
pay for the extra work done at his command?"
"
* * * *"
"Mr. COOPER. The distinguished Senator has perhaps not had the
opportunity to read the report of the committee. Let me say that,
on page 48 of the report of the committee, that exact situation, or
one as nearly comparable to it as probably could be cited, is
discussed. In the report, it is clearly stated that, under such
circumstances, it is the intention of the framers of the bill that
such activities shall be compensable as a part of the principal
activity."
93 Cong.Rec. 2350.