Class Struggle at the Door: The Origins of the Portal-to-Portal Act of 1947

Abstract

This Article presents a comprehensive political, economic, and legislative history of the Portal-to-Portal Act, analyzing the unusual way in which litigation shaped the contours of the statute which the Portal Act amended, the Fair Labor Standards Act (FLSA). As part of a larger wartime and postwar labor conflict, the portal suits were both a calculated effort to maximize bargaining pressure on big business and a hapless venture by the Congress of Industrial Organizations to secure large recoveries from employers without due consideration of the possible reactions by capital and the state or of the repercussions for unorganized workers. Ultimately the Portal-to-Portal Act’s restrictive impact has fallen on low-paid workers and extends far beyond the issue of walking time.

This analysis of the Portal-to-Portal Act begins with an economic and historical discussion of the significance of the definition of compensable worktime under protective statutory regimes (§ I). The relevance for the portal controversy of the trends in overtime during and immediately after World War II is reviewed in § II. Following this discussion is a study of two mining cases that crucially shaped the political and jurisprudential contours of the portal pay dispute (§ III). Attention then shifts to the major industrial portal suit, Anderson v. Mt. Clemens Pottery Company, in which the Supreme Court set the stage for mass litigation and congressional intervention (§ IV). § V offers a detailed legislative history of the Portal-to-Portal Act beginning with efforts at the state level to blunt the impact of FLSA by shortening the applicable statutes of limitations. § VI and § VII look at the contemporary significance of the Portal-to-Portal Act, from the relationship between mandatory norms under FLSA and consensual bargaining, to the most significant achievement of the Portal-to-Portal Act, the elimination of class actions. The lessons to be learned from the portal litigation of the 1940s are summarized in § VIII.

Keywords: Portal-to-Portal Act, Fair Labor Standards Act, overtime, beginning of the workday, miners, John L. Lewis, United Mine Workers, Mt. Clemens Pottery Co., CIO, National Association of Manufacturers, Justice Frank Murphy, statute of limitations, liquidated damages, class actions