With White House Counsel Harriet Miers about to be nominated in a few minutes, according to news wire reports, to replace Sandra Day O’Connor, here is a story from today’s Wall Street Journal that is worth reading. The news media’s focus on abortion and other social issues usually leaves out the critical labor issues the court decides.
High Court to Hear
Dispute on Worker Pay
First Arguments Before New Chief Justice
Will Be About Wages;
Social Issues Will Follow
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
October 3, 2005;
WASHINGTON —
The first test of Chief Justice John Roberts’s legal philosophy won’t come on social issues — such as abortion, school prayer or gay marriage — that dominate today’s judicial politics. Instead, the case argued when the Supreme Court term begins today will test the new chief justice’s leanings on a high-priority issue for business.
The case is something of a throwback to the early 20th century, when disputes over wages, working conditions and hours dominated the docket. At a Pasco, Wash., meatpacking plant owned by Tyson Foods Inc., workers are required to don protective gear before shifts in which they slaughter, dismember and process beef. They say they should be paid for the time required to walk, once suited up, to the production line, and not just for the time spent donning the gear and working.
Industry Warns of Costs
Although only a few minutes per employee a day are at stake, the industry says a contrary ruling could impose vast new costs. A “wide variety of employers…have faced such claims,” says a friend-of-the-court brief filed by the National Association of Manufacturers, which, for the first time, injected itself into the Supreme Court nomination process by lobbying for a candidate it perceived as pro-business — and endorsing the Roberts nomination.
The new court term also includes plenty of cases on social issues. On Wednesday, the justices will hear arguments over the Bush administration’s claim that the federal Controlled Substances Act trumps an Oregon voter initiative allowing physicians in the state to prescribe life-ending drugs to terminally ill patients. The docket also includes cases on abortion, capital punishment, campaign finance and other issues.
Overshadowing the lineup is the uncertain membership of the Supreme Court. As early as today, President Bush could name a successor to retiring Justice Sandra Day O’Connor. With Chief Justice Roberts expected to follow the conservative mold of his mentor, the late Chief Justice William Rehnquist, the seat of the moderate Justice O’Connor seems likely to hold the balance in a host of cases — including, perhaps, the wage cases to be argued today.
Justice O’Connor continues to serve, and her vote will count in cases decided before she steps down. But if opinions in the Tyson Foods case and others are released after she leaves, her vote won’t count. And the new justice, who hasn’t heard oral arguments on cases like the wage-and-hour matter won’t be able to vote on it. If her departure leaves the justices split 4-4, the court can order the case reargued with the new justice present, or leave the lower court rulings intact.
Disputes like the Tyson Foods matter “are the kind of cases that the court spends the vast majority of its time on,” says lawyer Carter Phillips of Sidley Brown Austin & Wood, who is slated to argue on behalf of the Springdale, Ark., meat processor. And justices may be less inclined to vote based on political ideology than other factors — such as the weight they attach to legislative history, or the degree of deference to an administrative agency like the Labor Department, which in this case has sided with the workers.
“People think about abortion, but this is really what the Supreme Court is in the business of deciding,” says the opposing counsel, Thomas Goldstein of Goldstein & Howe, who will argue on behalf of Maine chicken workers in a companion case also before the court today.
Citing ‘The Jungle’
In the Tyson Foods case, the Ninth U.S. Circuit Court of Appeals in San Francisco agreed with workers. Writing for a unanimous three-member panel, Judge Sidney Thomas cited Upton Sinclair’s book, “The Jungle,” and the 1906 Meat Inspection Act it inspired to explain that safety precautions were essential to work in a slaughterhouse. “Employment at a packing plant is still one of the most dangerous jobs in America,” he wrote, and the elaborate safety gear workers must wear is more like specialized equipment than ordinary business clothes.
But across the country in Boston, in a case from a Barber Foods chicken-processing plant in Portland, Maine, the First Circuit Court of Appeals reached a different conclusion. “It is hard to begrudge this to workers doing difficult and disagreeable work,” Chief Judge Michael Boudin wrote in concurrence, “but the situation does bear an uncanny resemblance to that which prompted the Portal-to-Portal Act,” which regulates working periods. While time spent “donning and doffing” must be paid, the unanimous three-member panel held, federal law didn’t require wages for the period between suiting up and walking to the production floor, which is where workers punch the time clock.
The National Association of Manufacturers’ brief, joined by the American Meat Institute and the National Chicken Council, cited cases involving medical-supply manufacturers, police departments, trucking firms, railroads, glassmakers and automotive plants. “Any employer that employs individuals who wear a smock, a hairnet, work gloves, or other similar types of protective garments would be subject to claims for walking and travel time associated with obtaining, donning, doffing, or disposing of such garments,” it warned.
‘Pretty Ghastly Work’
Employee advocates say such fears are overblown and that the meatpacking workers, often immigrants who receive between $9 and $13 an hour, more than earn their wage. “It’s pretty ghastly work,” says James Coppess, an attorney with the AFL-CIO, which filed a friend-of-the court brief. Employers are “just nickel-and-diming the workers.”
The conflict stems from pro-labor legislation enacted during the New Deal — and the industry-driven pushback after World War II. The Fair Labor Standards Act of 1938 established minimum wages and set other working conditions. But after the Supreme Court ruled in 1946 that walking to and from time clocks near a factory entrance was compensable, the Republican-controlled Congress adopted the Portal-to-Portal Act, excluding from mandatory compensation actions “which are preliminary or postliminary” to a job’s “principal activity.”
In 1956, Chief Justice Earl Warren wrote for a unanimous court that the statute meant activities performed “before or after the regular work shift, on or off the production line, are compensable” if they are “integral and indispensable” to the job’s “principal activities.”
In its brief, Barber Foods argues that the shift begins when employees arrive at the “meatroom” where they turn boneless chicken breasts into “stuffed entrees, chicken fingers and nuggets.” “The principal activity that the employees are ’employed to perform’ is processing chicken, not donning and doffing clothing and equipment,” the company argues, and the “place of performance” is “the production floor, not the coat racks or equipment cage.”
Dispute Over Cumbersome Gear
The company argues that if employees didn’t have to suit up, they wouldn’t need to be paid for “walking from the plant entrance to the production area,” and there is no reason “why that noncompensable walk should become compensable merely because the employee has donned some required clothing.”
Employees argue in their court papers that the cumbersome gear they don is more than “required clothing.” For instance, the Pasco plant’s nearly 600 “processing knife users” work “covered from shoulder to knee or ankle with a metal mesh apron…metal mesh sleeves, or Kevlar sleeves, a Kevlar glove on the knife hand, a metal mesh or Kevlar glove on the nonknife hand, a plexiglass armguard and a scabbard and chain.” The getup resembles “that worn by medieval knights.” Robing and disrobing amounted to 12 to 14 minutes a day, while walking time was as much as 4.4 minutes a day, the employees’ brief says.
It may well have been cases like this that Chief Justice Roberts had in mind last month when answering questions at his confirmation hearings before the Senate Judiciary Committee. “Somebody asked me, you know, are you going to be on the side of the little guy?” he said. “And you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution.”
