Measurement of Trifles

Like the fisherman in The Arabian Nights, Detroit's Federal Judge Frank A. Picard had unwittingly let the terrifying genie of portal-to-portal pay out of the bottle. By last week, as union claims swelled up to a terrifying $5 billion, Judge Picard set valiantly to work to lure the genie back in--or at least cut him down to a manageable size.

The genie, at that time safely encased in the bottle, first rolled up on the industrial shore in 1943. Then, workers at Mt. Clemens Pottery Co. sued, under the Wages & Hours Act, for time spent in the plant before the whistle blew. (They were required to punch the time clock 14 minutes before the actual start of work, to give them time to walk to their benches, put on gloves, work clothes, etc.) A special master threw out the claims, on the grounds that the workers had not proved how much of the time was actually spent in "makeready" tasks, i.e., putting on work clothes and walking to benches.

Judge Picard overruled the master. He held that time spent on actual production before the starting whistle should be paid for. This the judge arbitrarily set at seven minutes a man, awarded the workers a total of $2,415.74. This seemed a trifle, no more inportant than the puff of smoke that issued when the bottle was first opened.

But when the case reached the Supreme Court, the genie suddenly grew to enormous size. The Court held that Judge Picard was wrong, that all makeready and walking time on company property had to be paid for. Suddenly, the genie of portal-to-portal pay hovered, mountain high, not only over small Mt. Clemens Pottery, but over all industry. The oracular Court gave a hint, however, on how the monster might be lured back into the bottle. Under the legal doctrine of de minimis ("the law does not concern itself with trifles"), all small amounts of makeready time were to be disregarded. With that, the Court handed the case back to Judge Picard.

So last week, Judge Picard opened re-hearings on the Mt. Clemens case, to measure the trifles. It should have been easy. He had gone to the Mt. Clemens plant himself, to check on makeready practices from time clocks to work benches. He wanted everyone to agree that it took twelve seconds to put on an apron, 20 seconds to clean hands, that a man walked 275 ft. a minute, etc. But the company and union lawyers would not agree. Furthermore, they would not agree on which of these functions were trifles or on whether trifles should be added up to working time which had to be paid for.

Into Fairyland. For two harried days Judge Picard, an able, conscientious jurist, tried to get somebody to help him define a trifle. Nobody would. Judge Picard recalled that, before the Supreme Court decision, the company had claimed that it took 14 minutes to walk from the time clock to a workbench. The union had said it was only a minute and a half. Now the company claimed that walking time was only two minutes; now the union said it was 15.

The Department of Justice's able John F. Sonnett tried hard to get the genie back into the bottle. In support of the Department's plea that all makeready time should be ruled trifles, he said: ". . . An employer is not entitled to deduct trifling personal-pursuit periods. . . . And an employe should not be entitled to . . . trifling periods of preliminary activity. . . . If portal-to-portal compensation is granted, then the employer will be entitled to keep track of and deduct short periods spent in personal pursuits." Asked Judge Picard: "You think we might do an ultimate injustice to the worker by granting portal-to-portal compensation?" Answered Sonnett: "Yes. . . . On the facts of this case the play is not worth the candle."

Out of Fairyland? Edward Lamb, the smart Toledo lawyer who filed the original case for the pottery workers, did not agree. Neither did C.I.O.'s assistant general counsel, Frank Donner.

But Company Lawyer Frank E. Cooper did agree. Said he: any reasonable walking time should be called a "trifle." The management did not bother to deduct for time the men wasted on the job, even though the time amounted to half an hour a day. Asked the Judge : "Were these facts drawn to the attention of the Supreme Court?" Answered Cooper: "They were in our brief but they weren't mentioned in the opinion."

The Judge, who plainly implied that he had no use for the Supreme Court's pay doctrine, asked: "Can I say that the Supreme Court overlooked questions before it?" The Judge could not. But he plainly implied that he thought the Supreme Court, in its foggy decision, had overlooked these important points.

But he gave no clue* to his ultimate decision, probably some weeks hence. Businessmen hoped he would get the genie back into the bottle by finding that all the makeready time was a "trifle." But all the Judge wryly said was: "I'm the only one who has been consistent in this case -- consistently wrong."

* In another, and uncontested, opinion concerning the Wages & Hours Act, Picard had ruled that an employer is not liable for claims retroactive from the date on which he was notified that such claims were compensable under a new interpretation of the law. Such a ruling on portal pay would cut the claims to very little.

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