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December 11, 1958

Edward LAUDENSLAGER et al.

The opinion of the court was delivered by: KIRKPATRICK

This action for damages and unpaid overtime, brought by some 88 employees of a corporation manufacturing automotive type storage batteries, is based upon alleged violations by the defendant corporation of (1) the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. and (2) the Pennsylvania Lead Manufacturers Act, 43 P.S. § 471 et seq.

In order to save the time of the Court and litigants, it was agreed that three of the plaintiffs should be selected and that their cases should be tried first, the thought being that, after the issue of the defendant's liability had been resolved in those cases, the claims of the remaining plaintiffs might be settled by agreement or, at any rate, could be disposed of more expeditiously. At the trial, it was further agreed that the Court should decide the issue of the exposure of employees to lead hazard throughout the entire plant and that the Court's findings should apply not only to the claims of the three plaintiffs in question but to those of all the rest. The trial was to the Court without a jury.

 The Cause of Action Under the Fair Labor Standards Act

 The decision in Steiner v. Mitchell, 350 U.S. 247, 76 S. Ct. 330, 100 L. Ed. 267, established that, in a storage battery plant in which the employees are exposed to lead dust and lead fumes to a degree which makes it necessary for them to change their clothes, wash and shower in order to protect their health, time so spent by them is a principal activity and must be counted in measuring work-time under the provisions of the Fair Labor Standards Act. However, the Court did not, as the plaintiffs contend, lay it down as a matter of law that all workers in production in any storage battery plant are entitled to pay for the activities in question. The defendant in that case did not challenge the findings of the trial court that the clothes changing and showering of the employees in its plant were indispensable to the performance of their productive work, and did not make any issue of the amount of time found to be required. These matters were not in issue before the Supreme Court. The defendant contended that, even so, these activities could not be counted as worktime, being excluded by the Portal to Portal Act, 29 U.S.C.A. § 251 et seq. as preliminary or postliminary. The facts of each case and the conditions existing in each plant, as found by the trial court, will still determine whether in any given plant the exposure is such as to make these activities so necessary to productive work and so integrally related to it as to take them out of the preliminary and postliminary categories.

 The plaintiffs contend that all the men engaged in production in this defendant's plant are so exposed. The defendant admits that a group of some 18 or 20 in each shift (whom it designates as 'lead workers') are exposed to lead dust in the air, but maintains that, as to them, the plaintiffs have failed to meet the burden of proving that the degree of exposure was sufficient to necessitate changing, washing and showering and that, as to the rest, the evidence shows no hazardous exposure at all.

 I made a personal inspection of this defendant's plant, and, based on what I saw in connection with the testimony, plans and photographs, have reached the conclusion that the men employed in the plant, except the office personnel, are exposed to lead and acid hazard in varying degrees but all of them to an extent which necessitates their changing into work clothes, washing their hands before lunch and bathing at the end of the day.

 Almost all of the production activities of the plant are carried on in one large room without partitions. In this room both lead dust and lead fumes are generated at various locations. The defendant uses hoods over these points of generation in an effort to minimize the hazard but this does not entirely eliminate it. The lead dust and fumes must, in the nature of things, be present to some extent throughout the entire room, and the workers in going about the plant will frequently pass close to some of the points of generation and will carry the dust on their clothes and shoes from one part of the room to another. Furthermore, as stock is moved about the plant, lead dust is in many cases carried with it, and, of course, when the floors are swept, as they are rather frequently around the dustier operations, this creates more dust. It would seem that in a plant of this kind, lacking partitions to seal off areas where lead dust and fumes are generated, it is a practical impossibility to confine the hazard to such areas, particularly with all the men using the same locker rooms and lunch rooms.

 A few of the operations of the plant are conducted in rooms partitioned from the large main room. The men engaged in these operations either handle sulphuric acid, which is occasionally spilled on the floor or their clothing or skin and the fumes of which are unmistakably in the atmosphere, or they handle cartons in which the batteries are packed. Those exposed to acid must, of course, shower for the protection of their health, and those doing the packing must also shower because lead dust is present on the cartons they use or collects on the batteries they put into them, and here again occasionally some spilled acid will be upon some of the materials they work with. I think, therefore, that they too should change their clothes and shower.

 There was expert testimony on both sides based upon samples of air taken at different places in the plant, showing varying degrees of concentration of lead dust. These tests, of course, are relevant but they are not conclusive and the entire picture presented by the evidence, with the plant itself as a principal exhibit, must be taken into consideration.

 Lead poisoning, in general, comes about in two ways -- inhalation of lead dust and fumes and ingestion of lead particles through the mouth or entry into the body through abrasions of the skin. By far the most common and most dangerous of these is the first. Changing clothes is necessary to keep the men from carrying the dust into their homes and breathing it there, but, beyond this, there is very little that can be done to prevent inhalation of toxic particles except partitioning the plant, perfecting the system of air cleansing and furnishing the men with respirators.

 The claims of the plaintiffs under the Fair Labor Standards Act are for unpaid overtime work and are based upon their contention that the compensated time which the defendant allows for precautionary activities in combatting the lead hazard is insufficient. The Fair Labor Standards Act is concerned only with pay for overtime work. Unless, therefore, the time spent by them in productive work plus the time which is reasonably necessary to allow them to perform these activities adds up to more than 40 hours per week, it is immaterial, so far as their cause of action under that Act is concerned, at what rate they are compensated for the 24 minutes a day so spent, as long as the minimum wage provisions of the Act are met.

 The three plaintiffs whose cases were tried had worked for the most part not more than 40 hours per week counting two hours for changing clothes and washing as work-time. However, there remains the question of what rate of overtime should be paid to a man who has worked more than 38 hours in production so that his total work-time is more than 40. The system employed by the defendant is to guarantee to each man for each weekly pay period an amount of money equivalent to 40 hours at the basic wage. Of course, the men are paid more than this basic wage under the incentive plan by which one hour's work is taken to be 100 points and, if over the entire week a man earns more than the week's quota of points, he is paid additional sums in accordance with the amount of excess points he has earned. When overtime is paid, it is at a minimum rate of one and one-half times the basic wage, but here again the employee may earn additional sums under the incentive plan which, while he is working overtime, allows him one and one-half times his regular point rate. This procedure does not conflict with the definition of regular rate set forth by the Supreme Court in Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 464, 68 S. Ct. 1186, 92 L. Ed. 1502, and corresponds with the answer given by the Wage and Hour Administrator to an inquiry directed to him as to whether or not it was a proper practice.

 The propriety of making an allowance of compensated time for activities needed as a protection against lead hazard seems to have been recognized by both the defendant and its employees for a number of years. The union contracts covering the years from 1950 to February 7, 1957, all provided for allowances which averaged 24 minutes a day for this purpose for all employees. There is no suggestion that the union contracts are not bona fide collective bargaining agreements or that there was ever any departure in practice from their terms. Consequently, inasmuch as time in excess of that fixed by the contracts was necessarily excluded by these provisions, there ...

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