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May 26, 1947

COCHRAN et al.

The opinion of the court was delivered by: LEAVY

We have here four cases that are consolidated for the purpose of considering the motions which are similar in all of them, and the consolidation of course was made with the thought that it would expedite disposition of the issues that have been raised by these motions. All of these cases are at issue. They have been on file in this court for almost a year. Their origin followed shortly after the Supreme Court pronouncement in the Anderson v. Mount Clemens Pottery, 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515, interpreting the language of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., in reference to time immediately before and immediately after the regular eight hour period now known as 'Portal to Portal' time.

The issue presented in a novel one. I say 'novel' because, in the first instance, in all of our experience, legislative and judicial, we never have had legislation to deal with, similar to the Fair Labor Standards Act of 1938, and in dealing with it we have had, of necessity, many of its features construed by the courts. As a result of judicial construction in this Mount Clemens Pottery case there are a large number of suits similar to the four that we have here today which have been instituted throughout the United States -- I cannot even hazard a guess as to the number, but I imagine they run into the thousands.

 It is not for this court to determine the wisdom or lack of wisdom in the acts of Congress in attempting to remedy the wrong that they felt existed, but they did attempt by the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq., to remedy a situation that they recite in the preamble of the act is the result of a misconstruction of their intention when it enacted the original Fair Labor Standards Act of 1938. In order to remedy a situation that they in their wisdom thought required remedial legislation, they went much further -- I think all parties will concede this -- than they had ever gone in the enactment of legislation which dealt with a situation similar to the one we have here.

 These four cases are cases involving a very large amount of money. If the compensation claimed were allowed, and then that doubled and costs and attorneys' fees, the sum would be substantially in excess of a million dollars.

 There are involved here approximately three hundred employees. They are appearing in a number of these cases in a representative capacity. No precedent can be cited that tends to construe the act that Congress had just recently passed and is now identified as Public Law 49, because the effective date is of May 14, 1947. The decision of this Court might well be the first of its kind in the United States involving hundreds or thousands of other cases. By the very nature of the matter involved, its importance and its significance to labor and to industry, and to the general economy of the nation, I have no reason to believe that a determination made by this court today of the issue is going to be one that will be universally accepted throughout the United States. The question ought to be disposed of at the earliest possible date. Feeling that way, still I do not mean to imply that I would feel warranted in holding that the motions of the various defendants were well taken unless I could be persuaded that there is sufficient merit in the position they take to justify such a holding.

 To deny the motions would, if not directly at least by implication, require findings that the act -- this Portal-to-Portal Act -- is unconstitutional. I say that because its language is so plain, direct, simple and unequivocal that it leaves no room for construction or doubt as to what was intended or what was meant. We are placed in a position where we need not endeavor to determine what the Congress meant when it spoke, because, as I say, it leaves no room whatever for construction.

 Part I of the Act consists of an exceptionally lengthy preamble setting forth the objectives sought to be attained and the purposes for the enactment of the legislation.

 Part II, section 2, subsection (a), provides that no employer shall be subject to any liability under the Fair Labor Standards Act of 1938, as amended, 'in any action or proceeding commenced prior to or on or after the date of the enactment of this act.'

 The instant cases were all commenced prior to the date of the enactment of this act. There is no room whatever for doubt as to what was meant by that language -- no room to draw different inferences from it, and Congress apparently being fearful that the courts might do just that, saw fit to amplify it by some further language. I refer particularly to subsections (1) and (2) of subsection (a), of section 2, Part II of the Act. Then, in order to further make clear their intention, in subsection (d) of section 2 and Part II of the Act, they provide:

 'No cause of action based on unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, * * * which accrued prior to the date of the enactment of this act, or any interest in such cause of action, shall hereafter be assignable.'

 While that language does not directly go to the immediate issue we have before us, yet it does involve a construction placed upon the act by the courts in a number of decisions.

 I must grant that this Congressional enactment is drastic. It is exceptional, it is extraordinary, and it is unusual. I have examined the briefs that were submitted by counsel -- very able briefs on both sides, and have done considerable independent research work in addition. I have carefully tried to analyze the three outstanding cases cited by counsel for the plaintiffs, which are: Ettor v. City of Tacoma, 228 U.S. 148, 33 S. Ct. 428, 57 L. Ed. 773, dealing with the subject of vested rights, wherein the Supreme Court of the United States reversed the supreme court of the State of Washington, concerning liability of the city for certain public improvements, and they had this to say, and I am only quoting a small part of that opinion:

 'At the time the grading was done there was in force an act of the Washington legislature which required the city to make compensation for consequential damages due to an original street grading. Pending these suits, and while they were actually being heard, the provision of the act referred to which expressly required the city to provide for or make compensation for all such damage ...

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