# Appendix — Intravaia v. Wirtz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0696%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 389 U.S. 844 ## Text 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0696%3A2. Public record. Not legal advice.