Appendix — Intravaia v. Wirtz

which determination of coverage can be made. The

“Act”, covers petitioners’ activities if and only if peti-

tioners’ ‘employees were engaged i in the following activi-_ .

ties:

(1) petitioners’ employees must be. in an industry

' “engaged in commerce”; or —

(2) petitioners’ employees must be engaged in 7"

production of goods for commerce.

29 United States Code, Section 201.

Since respondent ‘has never contended that, petition-

~ ers’ employees are “engaged in commerce” coverage

- must be found, if at all, upon the proposition that

petitioners’ employees are “engaged in the production of

goods for commerce”. The “Act” contains definitions

by: which courts may ascertain the legislative intent of

- the statute and thus determine; under precise factual

situations, whether coverage does or. does not lie. As

can be seen, respondent relies heavily: on the statutory

definition of “produced”... The word: “produced” is de-

_ fined in the “Act” as follows: |

“(j) ‘Produced’ means produced, ssiaiidiieaiaeih

mined, handled, or in any other manner worked

on.in any State; and for the purposes of this

chapter, an employee shall be deemed to have been

- engaged in the’ production of goods if, such em- —

ployee was employed in producing, manufacturing,

mining, handling, transporting, or in any other

‘manner ‘working on such goods, or in any closely

related process or occupation directly essential to

’ the ptoduction thereof, in any State.” 29 U.S.C. -

Section 203(j):

It seems to this Court that if the Fair Labor Stand-

- ards Act is to be extended to cover any and each in-

dividual who delivers materials to a street or highway-

which connects with an interstate route, the decision to

ap, extend the. Act should be made by Congress and not

by the courts. If Congress wishes local-haulers of ma-

terials, performing hauling wholly within a local area,

to come within the Act’s coverage, Congress can very

readily so legislate.

Judgment i is ordered for defendants. Counsel. doe de-

fendants shall prepare Findings of Fact, Coneltisions’

of Law, and Judgment in accordance with the rule, for

- presentation to the Court for signature on’ or before

December 10, 1965.

- Dated November 2: 23rd, 1965. |

Harry C. Westover |

__ United States District Judge

20,856.

te

- APPENDIX B. -° a

_ Opinion of the United States Court of Appeals for

_ the Ninth Circuit.’ :

_ United States Court of Appeals for the Ninth Cir-

W. Willard Wirtz, Sec. of Labor, US Dept. of Labor,

Appellant v. Ignazio Intravaia, et al., A ppellee. No.

' [March 15, 1967]

* Appeal from the United States District Court for the

Southern Districd of California, Central Division. .

Before: Barnes, Duniway and Ely, Circuits ‘Judges

Duniway, Circuit Judge: .—* ps ae ie

The appellant, Secretary of Labor, brought this ac-

tion to enjoin further violations of the overtime and

record-keeping requiremerits of the Fair Labor Stand-

ards Act, 29 U.S.C. §§207 & 211(c). After a tial, the

trial court concluded that appellees’ employees were not

within the coverage of the Act, and judgment was en-

tered for appellees. We reserve. Sk

The Act covers employees who are “engaged in com-

merce or in the production of goods for.commerce,” a.

phrase which recurs’ in many sections (29 U.S.C. -:

§§202(a), 203(s), 206(a) (b), 207(a), 208(a), 212-

(c)). The sole quéstion presented is whether appellees’

employees were “engaged... in the production of goods

. for commerce.” This brings into play section 203 (j):

“*Produced’ . means . produced, manufactured,

‘mined, handled, or in any other manner worked

on in any State; and for the purposes of this chap-

ter an employee shall be deemed to have been en-

3

LPP LRCR RELIEF ESIC AIL AEE LIE IM —

frre

~ on

gaged in ie production of goods if such sniteoms

| was. employed in producing, manufacturing, min-

ing, handling, transporting, or in any other manner.

_| working on such goods, or in any closely related

- ‘process or occupation directly essential to the pro-’

duction thereof, in any: State.

We consider the facts in the Hem of these statutory

provisions.

‘Most of the facts are stipulated: there is no substan- -

_ tial conflict in the evidence. Appellee Intravaia, with his

wife, is owner of appellee I & I Trucking, Inc., a cor-_

poration. Both appellees have the same place of business,

.

FAS SE EE ag ng. hha:

‘in El Monte, California. The business |is hauling, Ap-

pellees employed about 26, people, abot it 20 of whom

were drivers. These drivers used appellees’ equipment

to thaul sand, gravel, bulk cement, asphalt. and other

materials from points of origin to varius contractors

at construction sites. These contractors were engaged in

building and repairing freeways, streets, roads, and high- |

ways. Some materials were also delivered to the Los

‘Angeles International Airport and to the March: ‘Air

Force Base to be used: in the construction and improve-

ment of runways. The bulk cement was picked up at

cement plants and hauled to the sites and placed in bulk

containers for later use by the contractors in making

concrete. The sand, gravel and other materials were

picked up at their origin and dumped at the construc-

tion sites, often directly on the roads at the direction

of the contractors. All hauling-was done within Cali-

fornia. The materials were ‘produced: by others; they

were processed by the contractors, not by appellees.

The freeways to which materials were hatiled are used

; _ regularly for the visas Pasees of goods : and persons

ADE EAL PRR OLE at OEE, TRON GG NNER TREY

~

a

in interstate commerce; the streets, roads:and high- :

ways are traversed regularly by vehicles of the United

States Post Office in the transportation of mail, and

are used for the transportation of persons and goods

in interstate commerce; the -Los Angeles. International

Airport and March Air Force Base are used regularly

for the transportation of persons and goods in inter-

state commerce.

_ The district court concluded that the’employees were

not covered by the Act. Its findings are in general .

terms, and are in part self-contradicting. Thus, para-

graph III of the amended complaint alleges that appel-

lees’ employees * ‘are engaged i in wee production of sand,

_ gravel and cement for: commerce.’ _ The court found’

that these allegations are true. It then’found that the

facts are substantially as recited above, that appellees

are not engaged in the production of goods for, com-

‘merce, and that neither appellees nor any of their em-

ployees are engaged in commerce. As a conclusion ‘of

law the court states that the employees are: not engaged

_in the production of goods for commerce. It also found -

that appellees did not pay the drivers on an hourly or ~

daily basis, but. paid them “a very substantial part of

the amount received for trucking each’ load, ” and that

appellees did not keep records showing the number of

hours necessary for each trip and did not compensate the

_ drivers for work performed in excess of 40 hours per

week. ~ ,

It would appear, then, that if there is coverage, the

Secretary is entitled to the injunction he seeks. He does

not claim that the employees or appellees are engaged

in commerce; his position is that they are engaged. in

the production ‘of goods for commerce. » He relies

Wine

heavily on section 203(; i), quoted above. We think that

he is right. .

First, it ‘bears entpheala that “the provisions of the

Act expressly make its application, dependent upon thé

character of the employees’ activities. And, in any event,

_ to the extent that his employees’ are “engaged in com-

merce or in the production of goods for commerce,’ the °

employer is himself so engaged.” (Frankfurter, J, in

_ A.B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517 at

524) Or, as the court put it in Mitchell v., Sam, ie

McGaughy & Associates, 1959, 358 U.S. 207, 211:

‘focus on the activities of the employees and not on ne

business of the employer.” See also Walling v. Jackson-

ville Paper Co., 1943, 317 U.S. 564; Mitchell v: E.W.

Vollmer & Co., 1955, 349 U.S. 427; Wirte v.. Idaho

Street Metal. Works, Inc., 9 Cir. 1964, 335 F.2d 952.

It follows that it is immaterial that appellees do not

in fact produce the commodities that they haul or do any

processing of them in the course of hauling or after

they are delivered. They may still be producing goods

for commerce within the meaning of the Act: “Mere

separation of the economic processes of production for

commerce between different industrial units, even with-.

out any degree of common. ownership, does not destroy

the continuity of production for commerce.” _D.A.

Schulte Inc. v. Gangi, 1946, 328 U.S, 108, 121. See

also Mitchell.v. Hooper Equip. Co., 5 Cir., 1960, 279

F.2d:893, 896..

_ Second, the statute itself makes it clear that “pro-

duction of goods. for commerce” includes “transport-

ing” goods for commerce. And decisions of the Su-

preme Court construing the statute, we think, require

us to hold that appellees’ employees are covered by the

per ‘ EAE SOI Le EI CLE AD BELLE PLES SEE GISELE LOOLET ALES VEE SOG ANISH NEP

| -~-10-—

- Act. Most pertinent are the companion cases of AL

state Const. Co. v. Durkin, 1953, 345 U.S...13; and

Thomas v. Hempt. Bros., 1953, 345 U.S. 19.. Alstate .

held that offsite employeees of a contractor who con-

structed and repaired interstate roads are covered.

Thomas held that the quarry employees of a producer

of cement who supplied those building interstate high-

ways were also covered. tte

The reasoning of Alstate was that the employees ac-

tually on the site were “in commerce” under the deci-

sions in Overstreet v. North. Shore Corp., 1943, 318

U.S. 125, and Pedersen v. J. F. Fitzgerald Const. Co.,

1943, 318 U.S. 740, and that therefore those produc-

ing goods for those working on interstate facilities were

engaged in the production of goods for commerce: “In

Overstreet we pointed out that interstate roads and rail-

roads are indispensable ‘instrumentalities’ in the car-

riage of persons and goods that move in interstate com-

merce.. We then held that because roads and railroads

are in. law and in fact integrated and indispensable

- parts of our system of commerce among the ones, em-

ployees repairing them are ‘in commerce.’ Conse-

quently he who serves interstate highways and rail-

‘roads serves commerce. By the same token he who pro-

duces goods for these indispensable and inseparable

parts of commerce produces goods for commerce. si (345 .

U.S. at 16) |

It should be intel that the company in Alstate manu-

_ factured the topping material to use in highway con- — |

struction and repair; it quarried; the materials and

worked them up,. then delivered the mix and put it ~

down. There was no question that the workers on the

site were covered by the Act; only the workers at the

—

| —li— uss

quarry and those delivering the mix were in question.

The drivers transporting the material to the scene of

the highway construction were included in the opin-

ion. This is clear from the fact that they were involved

in the lower court’s decision (see 95 F. Supp. at 587)

and from the generality of the opinion in Alstate—all

& ° offsite employees of the company were involved in the -

coverage of the decision. That the drivers were in-

-- -. +e Cluded is emphasized by the restatement of the holding

| in Justice Douglas’ dissent: “The Court reasons that

if the man who is building or repairing an interstate

highway is ‘engaged in commerce,’ the one who carries

the cement and gravel to him from a nearby pit is ‘en-

gaged in the production of goods for commerce.’ ” (345

.U.S. at 17) Thus Alstate tells us that the drivers who

deliver' road material from the manufacturing plant to

the site are. covered, at least if the one who is doing the —

manufacturing and the application employs the drivers.

We mention these two conditions only because they are

facts that were present and‘that are different from the

facts. at bar. They were not stressed by. the Court as

determinative of anything in the opinion, nor can we see

their relevance in light of the opinions directing our at-

tention to the activities of the employees.

In Thomas the Court held that employees er pro-

duce and handle the raw materials in its preparation

for use on interstate transportation facilities are cov-

; _. ered by the Act. This was on the- authority of Al-

| state, decided the same. day. The quarry owner in

Thomas not only worked up the material for road

work, but also hailed it to the sites. There is no dis-_ .

tinction between employees in either Alstate or Thomas, .

and the two cases taken together cover employees who

—12—

haul road materials for employers who produce the ma-

terial and put it on the road, and employees who haul |

the materials for producers who deliver to another :

company which puts it on the road.

The appellees, asking us to say that these cases do not

cover the present case, insist that because the employer

here did not actually make the material for application,

the truck drivers, doing exactly the same job as the

drivers in Alstate and Thomas are not covered. This,

we think, flies in the face of the decisions that. we have

previously cited, that it-is the activities of the employees

-_ that are controlling. In substance, appellees are asking

us to hold that if the. contractor working on the inter-

state facility in Alstate and the quarry owner supplying

material to such a facility in Thomas. had subcon-_

tracted their hauling, the employees of the subcontrac-

tor would not be covered by the Act. This is squarely

contrary to the ruling in D. A. Schulte Inc. v. Gangi,

which we have quoted above.

Finally, the Secretary asks us to rule upon a al

tion of law that i is stated in a pre-trial order: :

eatin employee is paid on a straight percentage

’ or trip basis, with no ‘payment of additional

‘amounts fér hours worked in excess of forty per

week, but ‘he earns a sum-on such straight per-

centage or-trip rate basis, which-is in excess of the

‘ amount .he would have earned had he worked an

~ equal number of hours at the.applicable union rate,

_ have defendants violated 29 U:S.C. § 207. ” ;

- The record, however, does not tell us whethes the facts

assumed in the. question are true. We must decline

| what is really a request that we render an advisory

—ls—.

opinion. It will be for the trial court to determine, on

rémand, whether appellees have violated the overtime

provisions of the Act. The findings do make it clear,-

and appellees admit, that they did not binsrtad the records

required.

The judgment i is reversed a the matter is remanded

for further proceedings consistent with this opinion.

Barnes, Circuit Judge, concurring :

I concur in the result reached by the majority.

Appellees’ employees have been engaged i in the: haul-

ing of sand, gravel and cement which ultimately go intd

the construction of roads and airport runways which

| _ are instrumentalities of interstate commerce. Alstate

pects “Const. Co. v. Durkin, 345 U.S. 13 (1953), makes it

: clear that essential elements which become ‘a part of

' such instrumentalities are goods for commerce within

the meaning of the Fair Labor Standards Act. Since

a appellees’ employees are engaged in the “transportation”

pit, - of such goods, under section 203(j) they are deemed to

Pi 4 be engaged in the “production”. of such goods.’ The -

i conclusion must be that appellees’ employees are: en-

gaged in the production of goods for commerce, and are -

- therefore subject to the provisions of the Act.

I concur in the result because I feel that such a deci-

sion is required by Alstate. 1° cannot accéde, how-

_ ever, to.the majority’s suggestion (last two’ ‘sentences

of second paragraph of the majority opinion) that we

are only applying the statutory language’ to the facts en

of this case. ‘ |

The exercise of reason does not ‘setouaila the 1 result wie, wey ee

reach here with the power of Congress to regulate com- \ \

+ merce “among the several States,” U.S. Const. Ast..I,.\

4

Pee

§ 8. There is a connection between appellees’ activities

oe |

and interstate commerce just as every human activity

affects commerce in some slight way. But does that

mean that Congress has the power to regulate every

_ phase of human activity? I think not. Here’ there can,

be ttle doubt that appellees were not engaged in com-

merce “among the several States.” Few would assert

that Congress can be fiat “deem” a person to be with-

in its commerce power. unless, that person is in fact en-

gaged. in interstate commerce, since Congress cannot

grant itself powers and be consistent with the Tenth

Amendment.

I do not suggest that this statute is uriconstitutional

as beyond the powers of Congress. Congress has

limited the reach of this act to persons engaged i in com- .

merce or the production of goods for commerce, defin-

ing “commerce” in section 203 ( b) as “trade, commerce,

transportation, transmission, or communication among

the several States or between any State and any place

olitside thereof.” By its very terms the. statute is

within the commerce power. But I think we distort

this language in reaching our conclusion.

‘Here it is reasonable to expect that the materials

transported by appellees’ employees, will never leave the

state of California. Congress by section 203(j) deems

appellees’ employees to be producers of these “goods”,

but the operative parts of the statute apply only if the

oe goods are produced “for commerce” withjgethe meaning

of section 203(b). The sand, gravel and cement will

“never be traded, transported, transmitted or communi-

cated: among the several States or between any State

_.and any place outside thereof. They will be mixed and

spread-upon the ground, and their function will be. to

ma

--15—-

remain where ae are placed for ‘decades, pes cen-

turies. Commerce within the meaning of the Fair

‘Labor Standards Act may move over the road which

they will become, but I can see no logical justification

for saying that these goods are, themselves “for com-

merce” among the several States within the meaning

of either section 203(b) or Art. I, § 8.

Nevertheless, I concur in the court’s result. In

Alstate the Supreme Court decided that road building —

materials are goods produced for .commerce within the

meaning of the Fair Labor Standards Act. We are

bound to accept and must follow that decision. The

- sole purpose in offering this separate diseussion is to

. point out that the result is reached by following’ bind-

ing authority, rather than by interpreting a statute.

El

width

- APPENDIX C.

29 U.S.C. Sections 20] through 211 (c). -

_ $201. Short title

This chapter may be cited as the “Fair Labor

Standards Act of 1938.” June 25, 1938, c. 676, § 1,

52 Stat. 1060. cnn

§ 202. C “ongressional fining and declaration of policy

(a) The Congress ‘finds that the existence, in indus-

tries.engaged in commerce or in the production of goods

for commerce, of labor conditions detrimental to the

> maintenance of the minimum standard of living neces-

sary~fer health, efficiency, -and general well-being of

workers (1). causes commerce and: the channels and

instrumentalities of. commerce to be ised to- ‘spread and

perpetuate such labor conditions among the workers of

the several States; (2) burdens commerce and the free

flow of goods in commerce; (3) constitutes an unfair

method of competition in commerce; (4) leads to labor

disputes burdening and obstructing commerce and the

free flow of goods. in commerce; and (5) interferes

'- with the orderly and fair marketing of goods in com-

merce. ., . “ | :

(b) It. is declared to be the policy of this chapter,

through the exercise by Congress of its power to regu-

late commerce among the several States and with for-

. eign nations, to correct and as rapidly as practicable

- to eliminate the conditions above referred to in, such

industries without, substantially curtailing. employment.

or earning power. June’ 25; 1938, c. 676, § 2, 52

Stat. 1060; Oct. 26, 1949, c. 736, § 2, 63 Stat. 910.

—_ -

§ 203. Definitions:

As used in this chapter—

(a) “Person” means an individual, partnership, as-

sociation, corporation, business trust, legal representa-

tive, or any organized group of persons.

(b) “Commerce” means trade, commerce, transpor-

tation, transmission, Or communication among the several

States or between any State and any place ‘outside

thereof.

(c) “State” means any State of the United States

or the District. of Columbia or any Territory. or pos-

- session of the United States.

(d) “Employer” includes any “per'son acting directly

or indirectly in the interest.of an employer in relation

to an employee but ‘shall not_inclide the United . States

or any State or political subdivision of a State (except

with respect to employees of a State, or a political

subdivision thereof, employed (1) in a hospital, institu-

tion, or schoo! referred to in the last sentence of sub-

section (r) of. this section, or (2) in the operation of a

railway or carrier referred to in such sentence), or’ any’

labor organization ( other than when acting as an em=

ployer), or anyone acting in the capacity of officet or

agent of such labor organization.

(e) “Employee” includes any individual employed

by an. employer, except that such term shall not, for

the purposes of subsection (u) of this section include—

(1) any individual employed by an employer

engaged in agriculture if such individual is the

parent, spouse, child, or other member of the

employer’ s immediate family, or

| —18— : | ~~

(2) any individual who is employed by an em-

ployer engaged in agriculture of such individual -

’ (A) is. employed as a hand harvest laborer and is so

paid“ on a piece rate basis in an operation which

-has been, and is customarily and generally recog- ses |

nized as having been, paid on a piece rate basis

in the region of employment, (B) commutes daily

from his permanent residence to the farm on which

he is’ employed, and (C) has been employed in~

agriculture less than thirteen weeks during the pre- ©

ceding calendar year.

(f) “Agriculture” includes farming in all its branches

and among other things includes the cultivation and

tillage of the soil, dairying, the production, cultivation,

growing, and harvesting of any agricultural or horti-

cultural commodities (including commodities defined as

‘ agricultural commodities in section 1141j(g) of Title

12), the raising of livestock, bees, fur-bearing ani-

mals, or poultry, and any ‘practices: (including any

forestry or lumbering operations) performed by a.

farmer or on a farm as an incident to or in conjunc-

tion with such farming’ operations, including prepara-

tion for market, delivery to storage or to market or to

carriers for transportation to market.’ -

(g) “Employ” includes to suffer or permit to work.

(h) “Industry” means a trade, business, ‘industry,

or branch thereof, or group of industries, in which

+’ individuals are gainfully employed..

(i) .“Goods” means goods ‘(including ships usd ma-.

+ rine equipment), wares, products, commodities, mer-

‘chandise, or articles or subjects of commerce of any

character, or any part or ingredient thereof, but does

, 1.

not include goods after their delivery into the actual

physical possession of the ultimate consumer thereof

other than a producer, ‘manufacturer, or processor . e

thereof. | ie:

(j) “Produced” means produced, manufactured,

mined, handled, or in any‘ other manner worked on in

any State; and for the purposes of this chapter an —

employee shall be deemed to have been engaged in the —

_ production of goods if such emiployee was employed

in producing, manufacturing, mining, handling, trans-

porting, or in any other manner working on such ‘goods,

or in any closely related process or occupation directly

essential to the production thereof, in any State.

(k) “Sale” or “sell” includes. any sale, exchange,.

contract to sell, consignment for sale, shipment for sale,

or other disposition. ;

(1) “Oppresive child labor” means a condition of «“

employment under which (1) any employee under the

age of sixteen years is employed by an employer (other

- than-a ‘parent or a person standing in place of a parent

employing his own child-or a child in his custody under

the age of sixteen years in an occupation other ‘than

manufacturing or mining or an occupation found by

the Secretary of Labor to be particularly hazardous

for the employment of children between the ages of

sixteen and eighteen years or detrimental to their

health or well-being) in ‘any occupation, or (2) any. °

employee between the ages of sixteen and eighteen

years is employed by an employer in any occupation

which the Secretary of Labor shall find-and by order

declare: to be particularly hazardous for the employ-

ment of children between such ages of detrimental to -

their health or well-being; but oppressive child labor —

| lem

-shall not be deemed to exist by. virtue of . the: employ-

ment in any occupation of any person with respect to

‘whom the employer. shall have on file an unexpired

certificate issued and held pursuant to regulations of _

the Secretary of Labor certifying that such person is .

above the oppressive child-labor age. The. Secretary of |

Labor shall provide by regulation or by order that the

employment of employees between the ages of fourteen

and sixteen years in occupations other than manufactur-

_ ing and mining shall not be deemed to constitute op-

pressive child labor if and to the extent that.the Secre-

tary of Labor determines that such employment is cori-

fined to periods which will not interfere with their

schooling and to conditions which will ‘not interfere

with their health and well-being. | |

(m) “Wage” paid to any employee includes the -

reasonable cost, as. determined by the Administrator,

to the employer of furnishing such -employee with.

board, lodging, or other facilities, if such board, lodg-

ing, or other facilities are customarily furnished by

such employer to his employees: Provided, That the ~

cost of board, lodging, or other facilities shall not ‘be

included as a part of the wage paid to any employee

to the extent it is excluded therefrom under the terms

of a bona fide collective-bargaining agreement appli- .

cable to the particular: employee: Provided further,

That the Secretary is authorized to determine the fair

value of such board, lodging, or ‘other facilities for

defined classes of . employees and in defined areas,

based on average cost to the employer or to groups —

_ of employers similarly situated, or average value to

- groups of employees, or other appropriate measures of

fair value. Such evaluations, where applicable and

i

pertinent, shall be used in lieu ‘of. actual measure of

cost in determining the wage paid to any employee.

In determining the wage of a tipped employee, the

amount paid such employee by his employer shall be

deemed to be increased on account of tips by an amount

determined by the employer, but- not’ by an amount

in excess of 50 per centum of the applicable minimum

wage rate, except that in the case of an employee

who (either himself or acting through his representa-

tive) shows to the satisfaction’ of the Secretary that the

actual amount of tips received, by him was less than the

amount determined by the employer ‘as the amount by

which the wage paid him was deemed to bé increased

under this sentence, the amount paid ‘such: employee

_ by his employer shall be deemed to have been increased

by such lesser amount.

.(n) “Resale” shall not include the sale of goods to be

used in residential or farm building construction, re-

pair, or maintenance: Provided, That. the sale is:

recognized as a bona fide retail sale in the industry.

(0) Hours Worked.—In determining for the pur-

poses of sections 206 and 207 of: this title the hours

for which an employee is employed, there shall be ex-

cluded any time spent ‘in changing clothes or washing

at the beginning or end of each workday which was

excluded from measured working time during the week

involved by the express terms of or by custom’ or

practice under a bona fide collective-bargaining ee.

ment applicable to the particular employee. -

(p) “American vessel” includes any vessel which is.

_ documented or numbered under the laws of the United

_ States.

3 _(q) “Secretary” means the Secretary ef Labor.

(r) “Enterprise” means the related activities per-

formed (either through unified operation or common

control) by any person or persons for a common busi-

ness purpose, and includes all such activities whether

performed i in one or more establishments or by one or

more corporate or other organizational units including

departments of an establishment operated through leas--

ing arrangements, but shall not include the related

activities performed for such enterprise by an inde-

‘pendent contractor: Provided, That, within the mean- —

~ ing of this subsection, a retail or service establishment

‘which is under independent ownership shall not be.

deemed to be so operated or controlled as to be other than

a separate and distinct enterprise by reason of any ar-—

rangement, which includes, but is not necessarily lim-

ited to, an agreement (1.) that it will sell, or sell only,

certain goods specified. by a particular manufacturer,

distributor, or advertiser, or (2) that it will join with |

other ‘such establishments in the-same industry for the —

purpose of collective purchasing, or (3) that it will

have the exclusive right to sell the goods or use the

brand name of a manufacturer, distributor, or adver-

tiser within a specified area, or by reason of the fact

that it occupies premises leased to it by a person who

also leases premises to other retail or service estab-

lishments. For purposes of this subsection, the activ-

ities performed by any person 6r persons—

‘(1) in connection with the operation of a hospi-

tak an institution primarily engaged.in the.care of

the sick, the aged, the mentally ill or defective

who reside on the premises of such institution, a

school for mentally or physically handicapped or

}

gifted children, an elementary or secondary school,

or an institution of higher education (regardless of

whether or not such hospital, institution, or school —

_ is public or private or qperated for profit or not

for profit), or - ; |

(2) in connection with the operation of .a street,

suburban or interurban electric railway, or local

trolley or motorbus carrier,.if the rates and serv-

ices of such railway or carrier are subject to regu-

lation by a State or local agency (regardless ‘of

whether or not such railway or carrier is public

. or private or operated for profit or not for profit),

shall be deemed to be activities performed for a busi- _

ness purpose. | o

: . fj

(s) “Enterprise: engaged i in commend or in the pro-

duction of goods for commerce” means an enterprise

which has employees engaged in commerce or in the

production of goods’ for commerce, including employees

handling, selling, or otherwise working on’ goods that

have been moved in or produced for commerce by any

person, and which—

(1) during the period February 1, 1967, through

January 31, 1969, is an enterprise whose annual

gross volume of sales made or business done is not

less than $500,000 (exclusive of excise taxes at

the retail level which are separately stated) or is a

gasoline service establishment whose annual gross

volume of sales is not less than $250,000 (exclu-

sive of excise taxes at the retail ‘level. which are

separately stated), and beginning’ February 1, 1969,

is an enterprise whose annual gross volume of

sales made or business done is not less than: $250,-

—24—

000 (exclusive excise taxes at the retail level

_ . which are separate stated) ;

* (2) is engaged in sede cleaning, or re-

pairing clothing or fabrics;

(3) is. engaged in the business of construction

or reconstruction, or both; or

.(4) is engaged in the operation of a hospital,

‘\_ an institution primarily engaged in the care of the

sick, the aged, the mentally ill or defective who

reside on the premises of such institution, a school

for mentally or physically handicapped or gifted”

- children, an elementary or secondary school, or an

‘institution of higher education (regardless of

whether or not such hospital, institution, or school

is public or private or operated for profit ¢ or not

for profit). :

Any establishment which has ‘as its only regular em-

ployees the. owner thereof or the parent, spouse, child,

or other member, of the. immediate family of such

owner shall not be considered to be an enterprise en-

gaged in commerce ‘or in the production of goods for °

commerce or a part of such an enterprise, and the ©

sales of such establishment shall not be included for

the purpose of determining the annual gross volume

of sales of any enterprise for the purpose of this sub-

-section. :

(t) “Tipped efor” means any employee én-

gaged in an occupation in which he customarily and

ecard: receiv more than $20 a month i in tips.

(a) “Man ” means any day during-which an em-

ployee cota any en labor . for not less

than one hour.

—25—

(v) “Elementary school” means a day or residential

school which provides elementary education, as Geter

mined under State law. :

( w) “Secondary school” means a day or residential.

_school’ which prévides secondary education, as deter-

mined under State law. As amended Sept. 23, 1966,

.Pub.L 89-601, Title I, §§ 101-103, Title I, § 25S),

80 Stat. 830-832, 837.

| § 204. A dministrator |

(a), There is created - in the | Ai toaibt of Labor-a

| Wage pie Hour Division which shall be under the direes®”

tion of an Administrator, to be known as the- Adminis-’~

trator of the Wage and Hour Division (in this chapter

referred to as the “Administrator”). The Administra-

tor shall be appointed by the President, by and with

the advice and consent of the Senate.

(b) The Administrator may, subject to the civil-

_ Service laws, appoint such employees as he deems neces-

sary to carry out his functions and duties under this

chapter and shall fix their compensation in accordance

with the Classification Act of 1949. ‘The Administra-

tor may establish and utilize such regional, local, or

other agencies, and utilize such voluntary and unconi- F

pensated services, as may from time to time be needed. ;

. Attorneys appointed under this section: may appear for

and represent the Administrator in any litigation, but

all such litigation shall. be. subject to tHe direction’ and

control of the Attorney General. In the appointment,

selection, classification, .and promotion df of ficers, and

: employees ‘of the Administrator, no political test or

qualification shall be permitted: or given consideration,

but all such appointments and ‘promotions shall be

given and made ori the basis of merit and efficiency.

VOR Te ORRIN Fn cho i

: sells"

(c) The principal office of the Administrator shall :

be in the District of Columbia, but he or his duly

authorized representative. may exercise any or all of

his vi ati in any place.” .

(d)\The Secretary shall submit annually in January

a report to the Congress covering his activities for

the preteding year and including such information,

data, and recommendations for’ further legislation in

connection with the matters covered by this chapter

as he may find advisable. Such report shall contain

an evaluation and appraisal by the Secretary of the

minimum wages established by this chapter, together

with his recommendations to the Congress. In making .

such evaluation and appraisal, the Secretary shall take

into consideration any changes which may have oc-

curred in the cost of living and in prodtictivity and the

level of wages in. manufacturing, the ability of em-

ployers to absorb wage increases, and such other fac-

tors as he may deem pertinent. ond

-(e) Whenever the Secretary has reason to believe

that in any industry under this chapter the competi-

tion of foreign ‘producers in United States markets or

’ in markets abroad, or both, has resulted, or is likely

. to result, in increased unemployment in the United

. States,-he shall undertake an investigation to gain full |

information with respect to the matter. If he deter~

mines “such increased unemployment has in. fact re-

sulted, or is in fact likely to result, from such scompeti-

tion, he shall make a full and complete report of his

findings and determinations to the President and to the

Congress: ‘Provided, That he may also include in such

’ -yeport information on the increased employment result-

ing from ‘additional exports in any industry under this

—_27—

chapter as he may determine. to be pertinent to such

report. June 25, 1938, c. 676, § 4, 52 Stat. 1061;

ae Oct. 26, 1949, c. 736, § 4, 63 Stat. 911 [repealed]:

Oct. 28, 1949, c. 782, Title XI, § 1106(a), 63 Stat.

972; Aug. 12, 1955, c. 867, § 2, 69 Stat. 711; July 31,

1956, ©. 804, Title I, § 106 (a), 70 Stat. 737; May 5S,

1961, Pub.L 87-30, § 3, 75 Stat. 66.

§ 205. Special industry committees for Puerto Rico

and the Virgin Islands

_. (a) The Administrator shall as soon as practicable

appoint a’ special industry committee to recommend the

minimum rate or rates of ' wages to be paid under -sec-

tion 206 of this title to employees in Puerto Rico or the

Virgin Islands, or in Puerto Rico.and the’ Virgin Is-

lands, engaged in. commerce or in the production of

- goods for commerce or employed i In any enterprise en-

yi gaged in commerce or in the production of goods for

commerce, or the Administrator May appoint separate

industry committees to recommend the minimum rate

or rates of wages to be paid under said section to

employees therein engaged in commerce or in the pro-

~ duction of goods for commerce or employed in any

enterprise engaged in commerce or in the production of

goods for commerce in particular industries. An indus-

try committee appointed under this subsection shall be

composed of residents of such island or islands where

the employees with respect to whom such committee

was appointed are employed and residents of the United |

States outside of Puerto Rico and fhe Virgin Islands.

In determining the minimum rate or rates of wages to

be paid, and in determining classifications, such’ indus-

_ try committees shall be stant to the provisions of

section 208 of this title.

es,

v,(b) rm siaeicies committee shall be appointed by

ithe Administrator without regard to any other provi-

. sions of law regarding the appointment and compensa-

tion of: employees of. the United States. It shall include

a number of disinterested persons representing the

public, one of whom the Administrator shall designate

as chairman, a like number of persons ‘representing

emiployees i in the industry, and a like number represent-

ing employers in the industry.’ In the appointment

. of the. persons representing each group, the Adminis-

_ trator shall give due regard to the geographical re-

gions in which the industry is carried on.

(c) Two-thirds of the members of an industry com-

“mittee shall constitute a quorum, and the decision of ‘—

the committee «shall require a vote of not less than a~

“majority of all its members. Members of an industry

- committee shall receive as-compensation for their serv- °

fees. a reasonable per diem, which the Administrator

shall by rules and regulations prescribe, for each day

_actually sperit in the work of the comimittee, and. shall.

in addition be reimbursed for their necessary traveling

and other expenses. The Administrator shall furnish

the committee with adequate legal, stenographic, cleri-

cal, and other -assistance, and shall by rules and regula-.

‘tions prescribe the’ procedure to be. followed by the

committee. |

( d) The ‘Administrator: shall etoile to an industry

. committee from time to time such data as‘ he may have

. available on. the matters referred to. it, and shall cause

-to be brought before it in connection with such’ mat-

. ters any witnesses whom he deems material. An ‘in-

_ dustry committee. may summon other witnesses or call.

upon the Administrator to furnish additional informa-

AE htt 3 Set SN CIE eT ete LGN he DD nay A Ae ePaper he satel Os wlth tego 4 we " eee ee re

7 m= .

tion to aid it in its deliberations. June 25, .1938, c.

676, § 5, 52 Stat: 1062; June 26, 1940, c. 482, § 3(c),

54 Stat. 615; Oct. 26, 1949, c. 736, § 5, 63 Stat. 911;

Aug. 12, 1955, c. 867, § 5(a), 69 Stat. 711; May a

1961, Pub.L. 87-30, § 4, 75 Stat. 67.

g 206. Minimum wage

(a) Every employer shall, pay to each of his employ-

ees who in any workweek is engaged in. commerce or

in the production of goods for commerce, or is em-

. ployed in an enterprise engaged in commerce or in the

production of goods for commerce, wages at the fol-

- lowing rates:

(1) not less than $1.40 an hour ‘scing the first

year from the effective date of the Fair Labor

Standards Amendments of 1966 and not less

than $1.60. an hour thereafter, meng as otherwise

provided in this section;

(2) if such employee is a home.worker in Puerto

Rico or the Virgin Islands, not less than the

minimum piece rate prescribed by regulation or

order; or, if:no such minimum piece rate is’ in

effect, any piece rate adopted by’ such employer

which shall yield, to the proportion or class of ©

employees prescribed by regulation or order, not

less than the applicable minimum hourly wage

' rate. Such minimum piece rates or employer

piece rates shall be commensurate with,. and shall

be paid in lieu of, the minimum hourly wage rate —

applicable under the provisions of this section. .

~The Administrator, or his authorized representative,

shall have power to make such regulations or

>

—30—

orders as.are necessary or appropriate to carry

out any of ,the provisions of this paragraph, in-

cluding the power without limiting the generality _

of the foregoing, to define any operation or. oc- —

- ‘cupation which is performed by such home work

employees in Puerto Rico or the Virgin Islands;

to establish minimum piece rates for any operation

or occupation so defined; to prescribe the method

and procedure for ascertaining. and promulgating

minimum piece rates; to prescirbe standards for

-eniployer piece rates, including the proportion or

' class of employees who shall receive not less than

the minimum hourly wage rate; to define the term

“home worker”; and to prescribe the conditions

under which’ employers, agents, contractors, and

_ subcontractors shall cause goods to be — by

home workers ; i

(3) if such employee ‘is employed in American

Samoa, in lieu of the rate or rates provided by

this subsection or subsection (b) of this section,

not less than the applicable rate established by the

Secretary of Labor in accordance with recom- |

‘mendations of a special industry committee or |

committees which he shall appoint in the same

manner and pursuant to the same provisions as

_ are applicable to the special industry committees

provided for Puerto Rico and the Virgin Islands

by this chapter as amended from time to time.

Each such committee shall have the same powers

and duties and s shall apply the same-standards with |

respect to the. -application of the provisions. of this.

chapter to employees employed in American Samoa

__ as pertain to special industry committees established -

. | | onlin

under section 205 of this title with respect to

employees employed in Puerto Rico or ‘the Virgin

Islands. The minimum wage rate thus estab-

lished shall not exceed the rate prescribed in para- |

graph (1) of this subsection;

(4) if such employee is employed as a seaman

on an American vessel,. not less than the rate

. which will provide to the employee, for the period

covered by. the wage payment, -wages equal. to

compensation at the hourly rate prescribed: by

' paragraph (1) of .this subsection for all. hours

. during ‘such :period when he was actually on duty

{including periods aboard ship when the employee

was on watch or was, at the direction of a superior

officer, performing work or standing by, but not

including off-duty periods which are provided pur-

suant to the employment agreement) ; or :

(5) if such employee is employed in agricul-

ture, not less than $1 an hour during the first

year from the effective date of the Fair Labor:

_ Standards Amendments of 1966, not less than

$1.15 an hour. during the second year from such

date, and not- less than $1.30. an hour thereafter.

(b) Every employer shall pay to each of his em-

ployees (other than an employee to whom subsection

(a) (5) of. this section applies) who in any. workweek

is engaged in commerce or in the production of goods

_ for commerce, or is employed in an enterprise en- .

gaged in commerce or in the production of goods for

commerce, and who in such workweek is ‘brought within

the purview of this section by, the amendments made

| —32-

to. this chapter by t the Fair Labor suniaree of 1966,

wages at the following rates :.

(1) not less than $1 an hhoinr during the first

year from the effective date of such amendments,

- (2) not less than $1.15 an hour during the sec-.

ond year from such date,

(3) not less than $1.30 an hour during the

third year from such date, —

(4) not less than’ $1.45 an ‘hour ‘darting ‘the

fourth year from such date, and:

(5) not less than $1.60 an hour ‘discus

(c) (1) The rate or rates ‘provided by subsections

(a). and (b) of this section shall be superseded in the

case of any employee in Puetto Rico or the Virgin

Islands only for so long as and insofar as such em-

. ployee is covered by a wage order heretofore or here- ~

after issued by the Secretary pursuant tothe recom-

meridations of a special industry committee appointed

pursuant to section 205 of this title.

(2) In the case of any such employee who is “cov-

ered by such a wage order and to whom the rate, or

rates prescribed by subsection (a) of this section would

otherwise apply, the following rates shall apply: _

(A) The rate or rates applicable under the most

recent wage order issued by the Secretary prior to

‘ the effective date of the Fair Labor Standards

Amendments of 1966, increased by 12 per centum,

unless such rate or rates. are superseded by the

. rate or rates prescribed in a wage order issued by

the Secretary pursuant to the recommendations

of a review committee appointed under paragraph -

ce C)., Such rate or rates shall become effective

sixty days after the effective date of the Fair

Labor Standards Amendments of 1966 or one

year from the effective date of the most recent

wage order applicable to such employee thereto- ~

fore issued by'the Secretary pursuant to the

_ recommendations of a special industry committee

' appointed under section 205 of this title, which-

ever is later.

pare (B) Beginning one year after the applicable

: effective date under paragraph (A), not less than

the rate or rates prescribed by paragraph (A), in-

creased by an amount equal to 16 per centum of

_ the rate or rates applicable under the: most recent.

wage order ‘issued by the Secretary prior to the

_\ — .effective date of the Fair Labor Standards Amend-

oe ments of 1966, unless such rate or rates are.super-

~ _ * seded by the rate or rates prescribed in a wage

order issued. by the Secretary pursuant to the rec-

. ommendations of a. review committee appointed

- under paragraph (C)..

wi

(C) Any employer, or group of italia.“ em-

ploying a majority of the employees in an industry

in Puerto Rico or the Virgin Islands, may apply -

to the Secretary in writing for. the appointment of

a review committee to recommend the minimum

rate or rates to be paid such employees in lieu of

_ the rate or rates provided by paragraph (A) or

(B). Any such application with respect to any

rate or rates provided for under paragraph ( A).

shall be filed within sixty days following the .

enactment of the Fair. Labor Standards Amend-

‘ments of 1966 and any such application with |

4 vespect to any rate or rates provided for under

Yr

a” oo

paragraph (B) shall be filed not more than one

hundred and twenty days and not less than sixty

days prior to the effective date of the applicable

rate or rates under paragraph (B). The Secre-

tary shall promptly consider such application

and may appoint a review committee if he has

reasonable cause to believe, on the basis-of finan-

cial and other information contained in the ap-

_ plication, that compliance with any applicable rate

or rates prescribed: by paragraph (A) or (B)

will substantially curtail employment in such

industry. The Secretary’s decision upon any such

application shall be final. Any wage order issued.

pursuant to the recommendations of a review.com-

mittee appointed under this paragrapli shall take

effect on the applicable effective date provinied fs in

_ paragraph (A) and (B).

(D) In the event a wage order has not been

‘issued pursuant to the recommendation of a re-

view. committee prior to the applicable effective

date under Paragraph (A) and (B), the applicable

percentage increase provided by any such para-

_ graph, shall take ef fect on the effective date pre-

scribed therein, except with respect to the em--

ployees of an employer who filed an application

under paragraph (C) and who files with the Sec-

retary an undertaking with a surety or sureties

satisfactory to the Secretary for payment to. his

employees of an amount sufficient to compensate

such employees for the difference between the

wages they actually receive and the wages to

‘which they are entitled under this subsection. /Ahe

Secretary shall be empowered to ines such un-

ee

ad °

® .

MS ‘

2 .

: . .

> - ‘

a in > Pat Paaco) tng a6 a> 6 298 pty atone > TAD Fh np C0 RE OR OEE NRL OOS

. e- , §

dertaking and any sums recovered by him shall

be held in a special deposit account and shall be

paid, on order of the Secretary, directly to the

employee or employees affected. Any such sum

not. paid to an employee because of inability to do

so within a period of three years shall be covered

into the Treasury of the United States as miscel-

laneous receipts.

(3) In the case of any such employee to whom sub-' :

section (a) (5) or subsection (b) of this section would

otherwise apply, the Secretary shall within sixty days

after the effective date of the Fair Labor Standards

; Amendments of 1966 appoint ‘a special industry com-

mittee in accordance with’ section 205 of this title to

recommend the highest minimum wage rate or rates

in accordance with the standards prescribed by section

208 of this title but not in excess of the applicable

rate provided’ by subsection ( a) (5) or subsection (b)- .

of this section, to be applicable to such employee in

lieu of the rate or rates prescribed by subsection (a)

(5) or. subsection (b) of ‘this. section, as the case:

may be. The rate or rates recommended by the special

industry committee shall be effective with respect to

such: employee upon the effective, date of the-. wage

order issued pursuant to such recommendation but not

‘before sixty days after the effective date of the Fair

Labor Standards Amendments of 1966.

(4) The provisions of sections 205 ah 208 of this

title, relating to spécial, industry committees, shall be °

subsection.. The appointment of a review committee

shall be in addition to and not in lieu of any special

applicable to review committees appointed under this

industry committee required to be appointed ‘pursuarit

nie

to the provisions of subsection (a) of section 208 of

this titley except that no special industry ‘committee

shall hold any hearing within. one year after a mini-

mum wage rate or rates for such industry shall have

been recommended to the Secretary by a review com-

mittee to be paid in lieu of the rate or rates provided

for. under paragraph. (A) ‘or (B). The. minimum

wage rate or rates prescribed by this subsection shall

be in effect only for so long as and insofar as " such

minimum wage rate ‘or rates have not been superseded’

‘by a wage order fixing a higher minimum wage rate

or rates (but not in.excess of the applicable rate

prescribed in subsection (a) or subsection (b) of this

section) hereafter issued by the Secretary pursuant to

the recommendation of a special industry committee. —

=

‘ (d) (1) No employer having employees subject to

any provisions of this section shall discriminate, within

any establishment in which such employees are em-

ployed, between employees on the basis of sex by pay-

ing wages to employees in such establishment at a rate

less than the rate at. which he pays wages to em-

_ployees of the opposite sex in such establishment for

equal work on jobs the performance of which requires

equal skill, effort, and responsibility, and which are

performed’ under similar working conditions, except

where such payment is made pursuant to (i) a senior-

ity system; (ii) a merit system;.(iii) a system which . .

measures earnings by quantity or quality of produc- .

- tion;.or (iv) a differential based on. any other factor:

- other than sex: Provided, That an employer who is

paying a wage rate differential in violation of this sub-

section-shall-not, in order'to comply with the pr s

of this subsection, reduce the waar rate of any a:

—F “ nr pe Tue WS. yore AEDS AE FO SCOR EG OO GLE OE

Sate! Bol or - eee eee arf

Ds

—37—. >

(2) No labor organization, or its agents, represent-

ing employees of an employer having employees sub- |

jéct to any provisions of this section shall cause or

attempt ‘to cause such an employer to discriminate

against an employee in violation of saith (1) of

ro, this subsection:

(3) For purposes of administration and enforce-

ment, any amounts owing to any employee which have

been withheld in violation of this subsection shall be

deemed to be unpaid minimum wages or unpaid over-

time compensation under this chapter. . ay

(4) As used in this subsection, the term “labor or-

ganization” means any organization of any kind, or

any agency or employee representation committee ‘or

. plan, in which employees partigipate and which exists

for the purpose, in whole or ™@ part, of dealing with

employers concerning grievances, labor disputes, wages,

rates of pay, hours of employment, or conditions. of °

work. June 25, 1938, c. 676, § 6, 52 Stat. 1062;

June 26, 1940, c. 432, § 3(e), (f), 54 Stat. 616;

Oct. 26, 1949, c. 736, § 6, 63 Stat. 912; Aug. 12, 1955, |

c. 867, § 3, 69 Stat. 711; Aug. 8 1956, c. 1035, § 2,

70 Stat. 1118; May 5, 1961, Pub. L. 87-30, § 5, 75

~ Stat. 67; June 10, 1963, Pub.L. 88-38, § 3, 77 Stat. 56.

(e).(1) Notwithstanding the provisions of section

213 ofthis title. (except subsections (a) (1) and (f)

thereof), every employer providing any contract serv-

ices (other than linen supply services) under a contract

with the United States or any subcontract thereunder

shall pay to each of hi§ employees whose rate of pay

is not governed by the Service Contract Act.of 1965 or

to whom subsection (a) (1) of this section. is not ap-

plicable, wages at rates not less than the rates provided *:

for in subsection (b) of this section.

(2) Notwithstanding the provisions of section 213 of

this title (except subsections (a) (1) and (f) thereof) .

. and the provisions of the Service Contract Act of 1965, -

every employer in an establishment providing linen sup-

ply services to the United States under a contract with

the United States or any subcontract thereunder shall

pay to each of -his employees in such establishment

wages at rates not less than those prescribed in sub-

_ section (b) of ‘this section, except that if more than

50 per centum of the gross annual dollar volume ‘of

sales made or business done by. such establishment is

derived from providing such linen supply services under

‘any such contracts or subcontracts, such employer’ shall

pay to each of his employees in such, establishment ©

wages at rates not less than those prescribed in sub-

section (a) (1) of this section. As amendéd Sept. 23,

1966, Pub.L. 89-601, Title III, §§ 301-305, 80 Stat.

838-840.

S 207. » Maximum hours

— * (a) (1) Except as otherwise provided in this section,

no employer shall employ any of his employees who in

any workweek is’ engaged in commerce or in the pro-

duction of goods for commerce, or is employed in an

enterprise engaged in commerce or in-the production.of —

goods for commerce, for a ‘workweek longer than forty |

hours unless such employee receives compensation for’

his employment in excess of the hours above specified

' at a rate not less than one and, one-half times s the regu-

- lar rate at which he is employed. - :

(2) No employer shall employ any of his employees

wie’ in any workweek is engaged i in commerce or in the

production of goods for commerce, or- is employed in

EEE EEEOOEAEAESEE oer

an eriterprise engaged in commerce or in the produc-

tion of goods for comimerce, and who in such work-_

week is brought within the purview of this subsection

by the amendments made to this Act, by the Fair |

Labor Standards Amendments of 1966— ; ,

(A) for a workweek longer than forty-four

hours during the first year from: the ef fective z

date of the Fair Labor Standards Amendments :

of 1966, -

(B) for a workweek longer than forty-two

hours during the second year from such date, or

(C) for a workweek longer than forty hours af-

ter the expiratign of the.second year f rom such date,

unless such employee receives comipensation for his -

_. employment in excess of the hours above specified at

a rate not less than one and one-half times: ” regular

rate at which he is employed.

(b) No employer shall be deemed to -have violated '

subsection ‘ (a) of section by employing any em-

ployee for a workweek in excess of that specified in

such subsection without paying the. compensation for

overtime employment anes therein if ‘such employee

is so employed—

«~ (1) in pursuance of an agreement, made’ as a.

paar of collective bargaining by representatives of

: employees certified as bona fide by the National .

~Labor Relations Board, which provides that no

employee shall be employed more than one thou-

sand and forty hours during any Period of twenty-

. six consecutive weeks ; or

(2) in pursuance of an agreement, made as a

result of collective bargaining by representatives _

&

a

of employees certified as bona fide by the National

- Labor Relations Board, which provides that dur-

ing a specified period. of fifty-two consecutive

‘| weeks! the employee shall be employed not more

"than two. thousand two hundred and forty hours

and shall be guaranteed not less than one thou- *

sand eight’ hundred and forty hours (or not less

| than forty-six weeks at the normal number of

a _- hours worked per week, but not less than thirty

_... hours per week). and not more than two thousand

_and_ eighty hours. of employment for which he

_ shall receive comperisation for all hours guaran-

teed or worked at rates not less:than those appli-

cable under the agreement: to the work performed

_and for all hours in excess of the guaranty whichare —

also in excess of the maximum workweek applicable

‘to such employee under “subsection (a) of this

section or two thousand and eighty. in such period

at rates not less than one and one-half . times

Pi or the regular rate at which he i is employed ; or

(3) by an independently owned, and controlled local.

_ enterprise (including an enterprise with more than one

-bulk storage establishment) engaged in ‘the wholesale

_or bulk distribution of petroleum products if—

(A) the annual gross volume of sales of such _ -

\enterphise is less than $1, 000, 000 exclusive of € ex-_

cise taxes, bette

(B) more than 75 per centum of such enter-

prise’s annual dollar volume of sales is made with- |

_:in the State in which such enterprise is located,

ue

Oe

*

| —4i— : ne 2 och

(C) not more than 25 per centum of the annual ~

dollar volume of sales of such enterprise is ta

_ customers .who are ‘engaged in the bulk distribu-.

tion of such products for resale,

. and such employee receives compensation for employ- ©

ment in excess of forty hours in any workweek at a

rate not less than one and one-half times the minimum

' wage rate igs to him under section 206 of this.

- title; -- ets :

(c) For a ttn or periods Of nidt‘tnoke? aii ten

workweeks in the aggregate in any calendar year, or a

fourteen workweeks in. the aggregate in the case of an

employer who does not qualify for the exemption in

"subsection (d) of this section, any employer may em-

ploy any employee for a workweek in excess of that:

specified in subsection (a) of this section without pay-

ing the compensation for overtime employment pre- .

scribed in such. subsection’if such employee (1) is

employed by sitch employer in an industry found by

the Secretary to be of a seasonal nature, and (2) re-

_ ceives. compensation for émployment by such employer

in exeess of- ten hours in any: workday, or .for em- .

ployment: by ‘such employer i in-excess of fifty hours i in

any workweek, as ’ the case. may be, at arate not

less than one and one-half times the regular rate at.

which he i is employed. 3

(d) For. a period or pro of not. more than -

tem workweeks in the aggregate in any calendar

.year, or fourteen workweeks in the aggregate in the

case of an employer who. does not qualify for the

exemption in. subsection (c) of this section, any em-

ployer may. -employ any employee. for a workweek in

qe excess of that, epeciiied in subsection. (a) of. this: sec-

-

42 |

‘tion without paying the compensation for overtime

employment prescribed in such subsection, if such em-

ploye—

(1) is employed by lial employer in an enter-

‘prise which is in ‘an imeaty found by sa Sec-

retary—

(A) to be characterized by sins ins annually |

recurring seasonal peaks of operation at . the

places of first marketing or first processing of

agricultural or horticultural commodities from

farms-if—such. industry is engaged in the han-

dling, packing, preparing, storing, first process-:

ing, or canning of any. perishable agricultural

or horticultural commodities - in their. raw or

; natural state, or °

(B) to be of a seasonal ‘nature. and engaged

in the handling, packing, storing, preparing, first

_. processing, or canning of any perishable agri-

_ gultural or horticultural. <Sptoencntites in’ their

raw natural state,: sand

(2) receives compensation for employment by

‘ such’ employer in excess of ten hours in any

workday, or for employment in’ éxcess of :forty-

_ eight hours ini any workweek, as the’ case may be,

“at a Tate not less than one and one half times the

regular rate at which he is employed.

(e)’ ‘As used in this section the “regular rate” at -

which’ an employee is employed shall be deemed to in- —

“dude all’ remyneration for employment paid to, or on

- behalf of, the employee, but shall not be deemed to

include— |

“() sums paid as gifts: payments in the nature

of gifts made at — time or on other spe-

cial éfations, asa reward hein service, ‘the ainouiits

of which are not measured by or dependent on.

hours worked, production, or efficiency;

(2) payments made for occasional periods when =.

no work is. performed due to vacation, holiday,

: 1 illness, “failure of the. employer to provide suffi- 4

_. cient work, or other - ‘similar cause; . reasonable

payments : for traveling expenses, or other. expenses,

incurred -by an employee in the furtherance of Sane

his employer’s interests and properly reimbursable

by the employer; arid other similar payments ‘ to

an employee which are not made as compensation

for his hours of employment ; - a coe Mg 2

(3) sums paid in recognition of services per-

_ formed during a given period if either, (a) ‘both

. the fact that payment is to be made and the amount

of the payment are determined at. the sole discre-

tion of the employer at or near the end of the

period and. not pursuant to any. prior contract,

agreement, or promise causing the employee to

expect such payments regularly; or (b) the pay-

ments are made pursuant to a bona fide profit-

Sharing plan or trust or bona fide thrift or sav-

_ ings plan, meeting the requirements. of ‘the Ad- —

ministrator set° forth. in appropriate regulations

which he shall : issue, having due. regard among

other ‘relevant factors, to the, extent to which the

amounts paid to the employee are determined with-

out regard to hours of work, productign, or ef-

ficiency; or (c) the payments are talent fees (as

_ such: talent fees are defined and delimited by

' regulations of the Administrator) paid to per-'~

- » formers, including announcers, on os and t:le-

_ vision. Programs;

~~ we" LORETO TAREE

if : 44 | . ' pe .

4) contributions siveveenbiy made by an eth-

; +. a trustee or third person pursuant to "

“bona tide plan for providing old-age, retirement,

lifezaccident, or health insurance. or pa, pbene-

fits for employees; : : pag

(5) extra compensation provided. ae a premium

rate paid for certain hours worked by the em-

ployee | in any day or workweek because such |

hours are hours worked in excess of eight in a

day or in excess of the maximum workweek ap-

plicable to such emplo oyee_under subsection—(a)~~

of this section or in excess of the employee’s nor-

mal working hours or regular charts hours, as

-. the case may be;

(6). extra compensation provided by. a premium

rate paid for work by the employee on ‘Saturdays, —

Sundays, holidays, or regular days of rest, or on

: the sixth or-seventh-day-of the workweek, “where *

such premium rate is not less than one and one- —

half times the rate established-in good faith for

neg . * like wor performed in nonovertime. ‘hours on other” .

: (7) extra ecelipiteutitits provided by a premium

“Hate paid to the employee, in pursuance of an ap-

"plicable employment contract or collective-bargain-

ing agreement, for work outside of the hours es-

tablished in good faith by the contract or agree-

ment as the basic, normal, or regular workday

- (not exceeding eight hours) or workweek (not

exceeding the maximum workweek applicable to

such employee under subsection, (a) of this sec-

tion," where such premiurn rate is not less than

one and one-half times the.. rate established in

good faith by the contract or agreement for like

work a nai during such. workelay: or work- ;

Week, =, :

“(£) No employer shall be deeined to have violated

‘gubsection (a) of ‘this section. by employing any em-

ployee for a workweek in excess of the maximum

workweek applicable. to such employee urider. subsection.

(a) of this section if such employee is employed pur-

suant to a bona fide individual-contract, or pursuant

_ to an-agreement made. as a result of collective bargain- ..

ing by representatives of- employees, if the duties of .

_ such employee necessitate irregular hours of work, and

the contract or agreement (1) specifies a regular rate

of pay of not less than the minimum hourly rate pro-

_ vided in subsection (a) or (b) of section 206 of this |

title (whichever may be applicable) and compensation .

Mae ———~at not less than one and one-half times such rate for all _

_ hours worked in excess of such maximum workweek,

-and (2) provides ‘a weekly guaranty of pay for not -

more than sixty. hours «based on the Yates so specified. _

(). ‘No employer shall be deemed to have violated :

subsection: (a) of this section by employing any em-

* ployee for a workweek in excess of the maximum

‘workweek applicable to such employee under such sub-.

_. section if, pursuant to an agreement or understanding _

arrived at between the employer and the employee be-. ~-

'. fore performance of the work, the amount paid to the

employee for the number’ of hours worked by him in

"such workweek in excess of the maximum workweek .

applicable to such employee .under. such subsection\\

(1) in -the’ ‘case of an employee employed at

Piece rates, is computed at piece rates not less than ©

v

.

pe

-”. ——

—_

one and one-half times the bona fide “piece rates

applicable to the same work when performed dur-

_ ing nonovertime hours; or

(2). in the case of an employee performing two

or more kinds of work for which different hourly

- or piece rates have been: established, is computed

- at rates not less than one and one-half times: such.

bona fide rates applicable to.the same work when

performed during nonovertime hours; or. ts

(3) is.computed at a rate not less ‘than one and |

one-half times the rate established by such agree-

_/ megt or understanding as the basic rate to be~ se

‘./ used in computing overtime compensation there-

? under: Provided, That the rate so established igs

shall be authorized by regulation by the Adminis-

trator as being ‘substantially equivalent. to “the

average hourly earnings of the employee, exclu-

- give of overtime premiums, in the particular work

over a representative period of time; | :

. and if (i) the employee's average hourly earnings for

the workweek exclusive of payments described in para-

graphs (1)-(7) of subsection (e) of this section are

not less than the minimum hourly rate required by.

‘applicable law, and (ii) extra overtime compensation

is properly computed and paid on other forms of addi-

tional pay required to “be included in computing. the

.

.. (h) Extra compensation paid as described in para-

graphs (5)-(7) of subsection (¢) of this section shall

be creditable- toward ‘overtime compensation’ payable

purstiant to this section, = : ion

: @

~ : . é i —

, , ‘ F 7 ~ ae.

—46— { e —_——

5 9

- ,

: .

.

e

ployee of a retail or service establishment for a work- .

_ week in excess; of. the applicable workweek specified |

therein, if (1) the regular ‘rate of pay ' of such em |

_ & ae eas er

AI |

- (i) No employer shall be.deemed-to have violated

subsection (a) of this section by employing any .em-

Es ployee is in excess of one and one-half times the mini-

mum hourly rate applicable to him under section 206.

"of this title, and (2) more than half his compensation

_ for a representative period (not less than one month)

. represents commissions on goods or services. In.deter-

or guarantee. - me

mining the proportion -of compensation representing

commissions, all earnings resulting ‘from, the applica-.

tion 6f a- bona. fide commission ‘rate shall be deemed. ° }

commissions on goods or ‘services without regard to

whether the computed. commissions exceed the draw

a

~(j) No employer engaged: in the operation of a hos-

pital shall be deemed to have violated subsection (a)

- of this section if, pursuant to an agreement or under-

ployee before performance of the ‘work, a work period —

of fourteen consecutive days is, accepted in lieu of the

standing arrived at between the employer and the em-

workweek of seven consecutive days for purposes of

— overtime computation and if, for his employment in

excess of eight hours in any workday and in excess -

of eighty hours in such fourteen-day period, the em-

ployee receives compensation at a rate not less than

one and one-half times the regular rate at which he is

employed. As amended Sept. 23, 1966, Pub.L. 89-601,

‘Title IT, §§ 204(c), -(d), 212 (b), Title IV, §§ 401-

403, 80 Stat. 835-837, 841, 842.

o, |

. § 208. Wage orders. in ‘Puerto Rico and the Virgin |

Islands ig os S

(a) The policy of this chapter with respect to in- |

dustries or enterprises in Puerto ‘Rico and the Virgin

Islands. engaged in comimerce. or inthe production of

goods for commerce is to reach as. rapidly ‘as is eco-

nomically feasible without substantially curtailing em- -

_ ployment the objective of the minimum wage prescribed

. in paragraph 1) \of section 206(a) of this title in

each such, industry. The Administrator shall from

time to time convehe an industry committee or com-.

woe : mittees, appointed pursuant to section 205 of this title, -

and any such industry ' ‘committee shall from time to

time recommend the minimum. rate or rates of _wages 7

2 to be paid under. section 206 of this title by’ employers

in. Puerto Rico or the Virgin Islands, or in Puerto

si and the. Virgin Tslands, engaged in commerce

; or in the production of goods for commerce or in any

: enterprise engaged in commerce or in the production

of goods for commerce in any such industry or classifi- : ;

cations | therein. . ‘Minimum’ rates of wages ‘established

in accordance with. this section which ‘dre -riot equal

oes the minimum wage rate prescribed i in paragraph (1) ;

of. section 206(a) of this title shall be reviewed by

sucka ‘Committee once during such biennial period,

beginning with the’ biennial period commencing July 1,

1958, except that the Secretary, in, his discretion, may

- order an additional review during” any such biennial

*

‘period.

Fe ? ~ te

(b) Upon the convening of any such industry com

-mitteé, the Administrator: shall refer’ to it the question

of the. minimum wage raté or rates to be fixed for -

such industry. The industry. committee. shall investi-

"? gate ‘conditions in the industry and ‘the commi teé, or

-any authorized subcommittee thereof, shall after due |

notice hear such’ witnesses and receive such evidence ‘

as may ‘be necessary or appropriate to enable the com-

mittee ‘to perform: its duties and functions under this

ie _ chapter. The committee shall recommendto: the Ad- .

as inistrator the highest minimum wage rates for the

ustry.. which it determines, having due regard to

economic and competitive conditions, will not ‘substan-

tially curtail efaployment in the industry, and. will not —

- give any industry in Puerto Rico or in the Virgin’

_, Islands a competitive advantage over any industry in

the United ‘States outside. of Puerto Rico and the

. . Virgin Islands.

(c): The- industry committee shail PoE such

‘aoieaiie classifications within any ‘industry as it |

_ determines to be necessary for the purpose. of fixing

for each classification Within such industry the highest |

_mirimum wage rate. (not. in excess of that prescribed

_in paragraph (1) of section 206(a) of this title) which _

(1) will not substantially curtail employment in such

classification and (2) will not give a competitive ad- a

vantage to any group in the industry, ‘and shall recom-

mend fof” each classification i in the industry the highest.

‘minimum wage Tate which the committee determines _

~~

will not substantially curtail employment in’ such classi- _

fication. In determining whether such classifications

7 om be made in any industry, in making such classifi-.

cations, and in determining the minimum wage rates for

such classifications, no classifications shall be- made,

and no minimum wage rate shall be fixed, solely on a

regional basis, but the industry committee shall consider _

“ among other relevant factors the following:

(1) competitive conditions aX affected by trans-

portation, living, and production costs ; :

(2) the wages. established for work of like or

comparable character by collective labor agreements

negotiated between employers and employees by .

'. representatives ‘of their own choosing; and

(3) the wages paid for work of like or com-

parable character by employers who voluntarily

maintain minimum wage standards i in the industry. |

. No classification’ shall oe. made under this section on

) the basis of age-or sex. *

(d) The industry committee shall file with the he

‘retary a report containing its findings of fact and

recommendations with respect to the matters referred ©

to it. Upon the filing of such report, the Secretary .

shall publish such recommenilations in the Federal

. Register and shall provide by order that the recom-

. mendations contained in jsuch. report shall take effect

"upon the expiration of 15 days after the date of such

‘.. publication. ‘| |

ae ae | 5 —si—

| (e) Sitie issued under this section shall define the:

industries and classifications therein to which they

"are to apply, and shall ‘contain such terms and condi- -

- tions as the Administrator finds’ “necessary to carry

out the purposes of such orders, to prevent the circum-

véntion;or evasion thereof, and to safeguard the mini-

mum wage rates established therein: Se

(f) Due notice of any hearing provided for in this ~

section shall be given by publication in the Federal

‘Register and by such other means as the Administra-

tor deems -reasonable calculated to. give general notice -

to interested persons. June 25, 1938, c. 676, § 8, 52 4

Stat. 1064; Oct. 26, 1949, ¢. 736, § 8.63 Stat. 915;

Aug. 12, 1955, c. 867, §§ 4, 5(b)-(e), 69 Stat. 711,

712; Aug. 25, 1958, Pub.L. 85-750, 72 Stat. 844;

May - & 1961, Pub.L.. 87-30, § 7, 75 Stat. 7:

§ 209. A ttendance of witnesses.

For the. purpose of any hearing or investigation pro

vided for in this chapter, the provisions of sections 49

and 50 of Title 15 ( relating to the attendnce of wit-

‘nesses_and the production of books, papers, and docu-

ments), are made applicable to the jurisdiction, powers,

and duties of the ‘Administrator, ‘the Secretary of

' Labor, and the industry committees. June 25, 1938, c.

676; § 9, 52 Stat. 1065; 1946 Reorg.Plan No. 48.1,

eff. July 16, 1946, 1] F.R. 7873, 60 Stat. 1095.

§ 210. Court review

{a) Any person aggrieved by an order of the Sec-

retary issued under section 208. of this title, may ob-

&

tain a review of such order in the United States Court :

_ Of Appeals for any circuit wherein such person resides - -

_ or has his principal place of business, or in the United

States Court of Appeals for the District of Columbia,

by filing i in such court, within 60 days after the entry

of such order a written peititon praying that the. order

of the Secretary be modified or set aside in whole

or in part. A copy of such petition shall forthwith

be transmitted by the clerk of the court to the Sec-

_retary, and thereupon the Secretary shall file in the

- court the record of the industry committee upon which

the order complained of was entered, as provided in

_ section 2112 of Title 28. Upon the filing of such

petition "such court shall ‘have exclusive jurisdiction

to affirm, modify, or set aside such order in whole

or in part, so far as it is applicable to the petitioner.’

_ The review. by the court shall be limited to questions

of law, and findings of fact by such industry commit-

tee when supported by substantial evidence shall be

‘conclusive. No objection to the order of the Secretary

Shall be considered by the court unless such: objection _

shall- have been urged before such industry committee —

or unless there were reasonable grounds for: failure so

to-do. If application is made to-the court for leave

to adduce additional evidence, and it is shown to the

satisfaction of the court that such additional evidence

may materially affect the result of the proceeding and

that there were reasonable grounds for failure to ad-

duce such evidence in the proceedings before such in-.

=

dustry committee, the court may order such additional

evidence to be taken before an industry committee and —

to be adduced upon the. hearing in such manner and .

upon. ‘such terms and conditions as. to the court may

seem proper. Such ‘industry committee may modify

the initial findings by reasori of the additional evi-

dence so taken, and shall file with. the court such

>

ss modified or new findings which if supported. by sub-

‘stantial evidence shall be conclusive, and shall also file its -

recommendations, if any, for the modification of the orig-

inal order, The judgment and decree of the court shall be

final, subject to review by the Supreme Court of. the

United States upon certiorari or certification as provided

| in section 1254 of Title 28.

(b) The commencement of proceedings under sab:

section (a) of this section shall not, unless specifically

ordered ‘by the court, operate as a stay of the Ad-

ministrator’s order. The court shall not grant any

stay of ‘the order unless the person complaining of

such order shall file in court an undertaking with a

surety or sureties satisfactory to the court for the

“payment to the employees affected by the order, in

the event: ‘such order is affirmed, of’ the. amount by

which the compensation such employees — are entitled

to receive under the order exceeds the compensation

they actually receive while such stay is in effect. June

25, 1938, c. 676, § 10, 52 Stat. 1065: Aug. 12, 1955,

¢: 867, § 5(f),°69 Stat. 712; | Aa. 28, 1958, Pub.L.

95-791, om 72 Stat. 948.

[.

' /

af

ot

/

| 4

oe § 211. Investigations, ances records, and homework

regulations ft

_ (a) The Aiteniaiatistes or his designated : cenieiie-

tives may investigate and gather data regarding the

_ Wages, hours, and other conditions and practices of _~

: employment in any industry subject to this chapter,

and may enter and inspect such places and such rec- .

ords (and make such transcriptions, thereof), question

such employees, and investigate such facts, conditions,

' practices, or matters as he may deem necessary or ap- —

propriate to determine whether any person has violated —

afty provision of this chapter, or which may aid in the

exiforcement of the provisions of this chapter. Except

as provided in section 212 of this title and in subsec-

tion (b) of this section, the Administrator ‘shall utilize

_ the bureaus and divisions of the Department of Labor

for all, the investigations and inspections necessary un-

der this section. Except as provided in section 212 of

this title, the Secretary of Labor shall bring all actions

under section 217 of this title to restrain violations of

_ (b). With the consent and cooperation of State

agencies charged with the administration of State labor

laws, the Administrator and the Secretary of Labor

may, for the purpose of carrying out their respective

functions and duties under this chapter, - utilize the

services of State and local agencies and their employees

and, notwithstanding any other provision of law, may

reimburse such State and local agencies and their em-

ployees for services rendered for such purposes.

—

(c) Every employer subject to any provision of: this

chapter or of any order issued under this chapter

“shall make, keep, and preserve such records of the

persons. employed by him and of the wages, hours, and

other conditions -and practices of employment main-

tained by him, ard shall preserve such records for: =

such periods of ti ine, and shall make such reports there-

from ‘to the Administrator as he ‘shall prescribe 5 oe

regulation: or order _as-necessary” or appropriate. for the

enforcement of the provisions of this chapter or the

regulations or orders thereunder.

(d) The Administrator is authorized. to make such

regulations and orders regulating, ‘restricting, or pro-

hibiting industrial homework as are necessary or ap-

propriate to prevent the circumvention or evasion of |

and to safeguard the minimum wage rate prescribed in.

this chapter, ,and all existing regulations or orders of

the Administrator relating to industrial. homework are

continued in full force and effect. June 25, 1938, c.

676, § 11, 52 Stat. 1006; 1946 Reorg. Plan No. 2, § 1,

eff. July 16, 1946, 11 E.R. 7873, 60 Stat. 1095; Oct.

26, 1949, c. 736, § 9, 63 Stat. 916.

‘

3

, | ¥ | i ° ie a alll ON . . : ; ea 4 pi

| @

ie 3 y = |

° ; oe i . % ‘

a Both Supreme Court of te Hated States :

2 OcToBER TERM, 1967 —

‘No. 858

IGNAZIO INTRAVAIA AND I & I TRUCKING, INC.,

“h _”. PETITIONERS |

Vv. .

_. W. WiLarp Wirz, SECRETARY OF LABOR,

- UNITED STATES DEPARTMENT OF LABOR

‘ON PETI TION FOR A WRIT OF CERTIORARI TO THE

‘UNITED STATES COURT OF APPEALS FOR THE |

NINTH CIRCUIT ;

c

”

MEMORANDUM FOR THE RESPONDENT IN

. OPPOSITION

_ The petition for writ of certiorari should be denied 7

| ‘because it was not timely filed. : \,

The judgment of the court of appeals was ente

on March 15, 1967. No extension of time was sought \

" or obtained. The petition for a writ of certiorari —

was delivered to the Clerk on June 14, 1967, ninety- _

one days after the entry of judgment in the court of ©

|

(1)

2

appeals, but the certified copy of.the record was not

delivered to the Clerk until July 13, 1967, and thus

the petition was not filed until that date. Thus, the.

petition for certiorari was not filed until approxi-

mately 120 days after the judgment of the court of

appeals, and long after the statutory ninety days

limitation for filing a petition. 28 U.S.C. 2101(c);

Rule 22(3) of the Rules of this Court.. The: petition

“was — and the Court has no jurisdiction to

entertain it.

- Respectfully submitted.

&

AuGuUST 1967

&. S. GOVERNMENT PRINTING OFricE; 1967 272843 126