Closing the Portal
The law is a ass, a idiot.
Mr. Bumble in Oliver Twist
In Detroit last week, Federal Judge Frank A. Picard did his best to make the law look less like "a ass." He threw clear out of court the famed Mt. Clemens Pottery Co. case for portal-to-portal pay. If the Supreme Court--to which the case is quickly headed--should sustain him, there would be lifted from industry the threat of $5 billion in back-pay claims filed by scores of unions. If it should reverse him, the law would look more like "a ass" than ever.
It was a thankless task which the Supreme Court had wished on Judge Picard. He had first heard the Mt. Clemens case in 1943. Then it was a simple suit, brought by the pottery company's employees, to collect overtime pay for time worked before the whistle blew. Judge Picard had ruled in favor of the employees, but was reversed on a technicality. Then the case reached the Supreme C<
On the Spot. If anyone had ignored those realities, it was the Supreme Court. The majority had failed to see the consequences of its decision. Justice Murphy's loose-jointed constructions and sloppy phrasing invited the filing of thousands of portal-pay suits by unions. If these were valid, even in part, "the realities of the industrial world" meant that many businesses would be lamed, some crippled. Through tax rebates and cost-plus contracts, the Government would be nicked for much of the bill.
No man could tell just what Justice Murphy meant. Judge Picard, the man on the spot, had to try. First of all, he had to determine how long it took Mt. Clemens workers to walk from the time clocks to their benches. To find out, he called some witnesses to his courtroom. When a mousy little woman claimed that it took her five minutes to walk 750 feet, outraged company attorneys suggested that the judge clock her on a course in the court corridors. Judge Picard snapped: "I am not going to make an exhibition of this courtroom. Now cut out this horseplay and get along."
Then he had some horseplay anyway. A lawyer argued that the witness did not know how long a minute was, and suggested timing her. The judge pulled a turnip-sized watch from under his black robe. The witness looked glassily out the window. Almost at once she said a minute was up. The judge had timed it at eight seconds. The court took judicial notice that it was less than 15 seconds. It also noticed that workers walked faster leaving work than going to it.
With no help from wrangling lawyers, the judge had to use common sense. A normal walking pace, he ruled, was three miles an hour. At that speed, no worker took more than three minutes to walk from the portal to his bench.
Was this a trifle? Picard got no help from Justice Murphy's language, finally decided that it was a trifle. So was time spent putting on work clothes or protective covering. Then came the question of whether walking time away from the job was to be counted. By this time Picard was querulous: "If the Supreme Court meant to include walking from the job as walking time, wouldn't it have said so?"
Obviously convinced that the highest U.S. tribunal did not know what it meant or how to.say it, Picard threw out the case with the savage crack: "Never before has anyone attempted to bring walking and preliminary-activities time consumed into such a narrow, picayunish, meager sphere." But he knew that the Supreme Court might reverse him. In case it should, he threw in a warning: employers still should not have to pay for any claims going farther back than the Supreme Court's ruling of June 10, 1946. That would wipe out most of the basis for most of the suits now pending.
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