De Minimis Non Curat Lex

At a time when the "inarticulate major premise" behind every judicial decision was an unswerving belief in the inviolable sanctity of unchecked private initiative, the Federal courts and the courts of the various states assumed the right, indeed the obligation, of reviewing and often rejecting the rulings of any agency which attempted to regulate the rates of railroads or public utilities.

This extension of judicial activity led to such a mass of litigation and such elaborate fact finding that the courts have in recent years largely abandoned this function with the result that rate making has become a much more scientific and a much less time consuming process in the hands of regulatory commissions. Viewed in the light of the courts' past experience with complicated industrial matters, the currently pressing portal-to-portal pay suits appear to be grist for arbitrating bodies or labor-management conferences rather than material or judicial decision.

The complex minuteness of even the smallest portal-to-portal suit is indicated by Judge Picard's opinion in the progenitor of all such suits--the Mount Clemens Pottery Company case. He quotes as an indispensable part of his decision such fascinating statistics as these: mean distance from time clock to the bisque sagger filling department 528 feet; time required to reach Bisque sagger filling department at the determined walking rate of 250 or 275 feet per minute, depending on whether the worker enters from the South or North gate 1.92 minutes; time to grease arms 30 seconds; time to take clay off jigger machine one minute.

The matter of portal-to-portal pay falls in the same classification as other wage and hour disputes, and as such can be settled most effectively by collective bargaining rather than by prolonged litigation with the courts. Workers in some industries are rather obviously entitled to pay for time which they spend readying themselves for work or going from the plant or mine entrance to the place of work. In other industries time thus consumed is negligible and no imposition on the worker.

If the employer is trying to avoid the intent of the Fair Labor Standards Act by "encouraging" workers to put in time for which there is no remuneration, he is a fair target for civil or criminal legal action. But this is not the case in most of the $5,000,000,000 worth of suits now pending. Portal-to portal pay was something which had not occurred to either employer or employee. When the Mount Clemens Case opened a legal loophole for extracting wages above the amount agreed upon in good faith, labor, en masse, leaped to widen the gap and cash in on an unexpected windfall.

The rapid switch of "facts" attested to by each side after the Supreme Court decision of June 10, 1916, indicates that the contest is not one between Right and Wrong, but merely a struggle between two greedy factions to exploit the law to the limit of their respective advantages. In order to exploit the Supreme Court's decision and at the same time avoid the pitfall. "The law cares not for small things," labor lawyers upped their sworn estimate of walking time from two to fifteen minutes.

Judge Picard found the actual time required to be much nearer the lesser figure and on the basis of his findings dismissed the complaint as being too small to require judicial attention.

Now that the courts have determined that certain types of workers should be paid from the time they enter the company gates, they have fulfilled the only function which they are physically equipped to perform efficiently. The amount of portal-to-portal pay in individual industries should be left to the parties concerned--labor and management--to be threshed out around the conference table and made a part of future contracts.