Amicus Curiae Briefc — McLoed v. Threlkeld

GLANK PAGE

GLANK PAGE

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2

4

A cook employed to prepare and serve meals to railroad

maintenance-of-way employees who are engaged in inter-

state cor.merce, is engaged in such commerce within the

meaning of the Act, and is not exempt under Section

Se Oe etn kiako- nce sidicdin anaes aceadesnn 4

A. Petitioner is “engaged in commerce’ within the

meaning of Sections 4 and 7 of the Act__.__-_- a

B. Respondents’ commissary car is not a ‘“‘service

establishment” withia the meaning of the ¢aemp-

tion provided in Section 13 (a) (2) of the Act__- 7

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CITATIONS

Cases:

Consciidated Timber Co. v. Womack, 132 F. (2d) 101_.--- 6, 9, 10

Fleming v. Arsenal Bldg. Corp., 125 F. (2d) 278 (C. C. A. 2),

affirmed, 316 U. 8. 517__.-..-.--- PSE epee on oe Nano Re ee I 10

Fleming v. A. B. Kirschbaum Co., 124 F. (2d) 567, affirmed,

ee i Se idgdalei stadt cedaieeneaabe maak wich dlen a 8

Hanson v. Lagerstrom, 133 F. (2d) 120_......----.---.--- 6, 10

Kirschbaum Co. v. Walling, 316 U. 8. 517__.._.--------- 6, 10

Overstreet v. North Shore Corp., No. 284, this Term, de-

Ok Fa Pe iedickbnknetedanccnscetnsbekedasenes 4, 6,7

Pedersen v. J. F. Fitzgerald Construction Co., No. 396, this

Term, decided Feb. 8, 1943, petition for rehearing denied

and judgment amended, Mar. 8, 1943_......._.-.----- 5

Philadelphia, B. & W. R. R. Co., v. Smith, 250 U. 8.101... 4,5

Walling v. Jacksonville Paper Co., No. 335, this Term, de-

ee i le is hn ona wh iionceecabesemenseocene 6

Walling v. Sondock, 132 F. (2d) 77, certiorari denied, Mar.

Oe ie el eu kembes ahaa eames ik

Warren-Bradshaw Drilling Co. v. Hall, No. 21, this Term,

a aaa ae 6

Wood v. Central Sand & Gravel Co., 33 F. Supp. 40------ 9

(I)

522635—43

perce

IT

Statute: Page

Fair Labor Standards Act, c. 676, 52 Stat. 1060 (29 U. 8. C.,

sec. 201 ef seq.):

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AID ells cicin aie. chtesichc edad eeedehiaipiaia db aabeenonan en 12

TE Glia iad acne abek kin edna Bemadeked 12

ee aire eihen ease 13

Pr AO ek mbacebanakenet’ 7, 10, 13

Miscellaneous:

Ge Sy BS PU A icccdendcnsntcacccnctce 8

83 Cong. Rec. 9178. 9266-9267. _.__........-.--------- 9

H. Rept. 2738, 75th Cong., 8d sess____.....__.--_------- 8

Interpretative Bulletin No. 6, Wage and Hour Division,

U.8. Dept. Labor, rev. June 1941, par. 40_.__..___-__-- 7

Joint Hearings before the Senate Committee on Education

and J. abor and the House Committee on Labor on 8.

2475 and H. R. 7200, June 2, 1937, p. 32_-....-------- 8

8. 2475, as passed by the Senate July 31, 1937, and by the

De eT amb enewinkmamae 8

Wage Hour Manual (1942), p. 327__.-.-..-----.------- 8

GIuthe Supreme Covrt of the Bnited States

OcToBER TERM, 1942

No. 787

L. McL&Eop, PETITIONER

v.

M. ©. THRELKELD, J. H. THRELKELD, AND M. C.

THRELKELD, JR., DOING BUSINESS 48 THRELKELD

CoMMISSARY COMPANY, A PARTNERSHIP

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF ON BEHALF OF THE ADMINISTRATOR OF THE

WAGE AND HOUR DIVISION, UNITED STATES DEPART-

MENT OF LABOR, AS AMICUS CURIAE

The Solicitor General submits this brief on be-

half of the Administrator of the Wage and Hour

Division, United States Department of Labor, as

amicus curiae.

OPINION BELOW

The opinion of the District Court (R. 5-10) is

reported in 46 F. Supp. 208. The opinion of the

Circuit Court of Appeals (R. 11-13) is reported

in 131 F. (2d) 880.

(1)

2

JURISDICTION

The judgmeat of the Circuit Court of Appeals

was entered on December 9, 1942. A petition for

a writ of certiorari, and a motion for leave to

proceed in forma pauperis, were filed on March

4, 1943, and were granted on April 5, 1943. The

jurisdiction of this Court is invoked under Sec-

tion 240 (a) of the Judicial Code, as amended.

QUESTION PRESENTED

Whether a cook who prepares and serves meals

to maintenance-of-way employees of an interstate

srailroad, in a cook-and-dining car which travels

along the railroad’s rails, is engaged in commerce

within the meaning of the Fair Labor Standards

Act.

STATUTE INVOLVED

The pertinent provisions of the Fair Labor

Standards Act are set forth in the Appendix.

STATEMENT

The case was presented to the District Court on

a stipulation of facts which may be summarized

as follows: (

Respondents, partners in the Threlkeld Com- |

missary Company, have a contract with tle Texas

and New Orleans Railroad Company and with

other railroad companies in several states (R. 1, 3, |

7) to furnish meals and bedding to each railroad

company’s maintenance-of-way employees. The

Texas and New Orleans Railroad Company is a

common carrier engaged in interstate transporta-

=

“=~ POP ERO TIT re me mt women rs ae =

3

tion. The Railroad Company’s employees boarded

by respondents are engaged in maintaining the

railroad lines in proper condition for interstate

transportation. Most, but not all, of such em-

ployees board with the respondents at prices which

vary in accordance with the type of gang to which

they belong. The Railroad Company is author-

ized in writing by the employees to make deduc-

tions from their wages and pay the respondents for

the board and bedding furnished. (R. 1-2, 5-6.)

Meals served by respondents to the railroad

maintenance-of-way employees are prepared and

served in a cook-and-dining car. The car runs on

the railroad’s tracks and travels with a particular

gang or outfit. Each car is in charge of a cook

whose duty it is to cook and serve meals and to

keep the car clean. Petitioner, during the period

involved in this suit, worked exclusively at points

along the railroad lines within Texas and did not

go to other states (R. 2). If the maintenance-of-

way employees are required to perform emergency

work, the cook must follow the crew to the point *

at which the work is done. Petitioner was em-

ployed by respondents as a cook from July 1939

to May 1941, and performed the duties above

described. (R. 2, 6.) *

1Some question was raised concerning whether petitioner

served meals to persons other than railroad employees. The

court found (R. 3-4) that although occasionally he did, this

occurred so infrequently that for purposes of the cases pe-

titioner would be deemed to have served only railroad

employees.

4

The District Court held that although the Rail-

road Company, and its employees to whom peti-

tioner furnished meals, were engaged in commerce

(R. 8), neither petitioner nor respondents were

so engaged within the meaning of the Act (R. 10).

It therefore entered judgment for respondents

(R. 10-11). The court below affirmed (R. 13).

ARGUMENT

A cook, employed to prepare and serve meals to railroad

maintenance-of-way employees who are engaged in

interstate commerce, is engaged in such commerce

within the meaning of the Act, and his work is not

exempt under Section 13 (a) (2)

A. Petitioner is “engaged in commerce” within the meaning of

Sections 6 and 7 of the Act

This Court, in Overstreet v. North Shore Corp.,

No. 284, this Térm, decided February 1, 1943, held

that in the decisions under the Federal Employers’

Liability Act ‘‘A practical test of what ‘engaged in

interstate commerce’ means has been evolved,’’

and stated that there was ‘‘no persuasive reason

why the scope of employed or engaged ‘in com-

merce’ laid down’’ in the Federal Employers’

Liability Act cases ‘‘should not be applied to the

similar language in the Fair Labor Standards

Act.”

Accordingly, Philadelphia, B. d W. R. R. Co. v.

Smith, 250 U.S. 101, would seem decisive here. Its

facts are virtually :dentical to those presented in the

case at bar. In the Smith case, a mess cook pre-

paring and serving meals for a railroad main-

5

tenance-of-way gang was held to be employed in

interstate commerce within the meaning of the

Federal Employers’ Liability Act. As in the in-

stant case, the cook in the Smith case worked in

a railroad camp car which travelled to portions of

the railroad company’s lines with a crew of bridge

carpenters engaged in making repairs. This

Court pointed out that the cook’s duties had the

effect of forwarding the work of the railroad

gang “by permitting them to conduct it conven-

iently at points remote from their homes and re-

mote from towns where proper board and lodg-

ing were to be had.” Therefore ‘‘he [the cook]

was employed, as they were, in interstate com-

merce, within the meaning of the Employers’

Liability Act.’’ 250 U. S. at 103-4.

No valid distinction can rest on the circum-

stance that in the Smith case, the employee in-

_ volved was an employee of the railroad company.

Cf. opinion below (R. 12). This Court held

in Pedersen v. J. F. Fitzgerald Construction

Co., No. 396, this Term, decided February 8, 1943,

petition for rehearing denied and judgment

amended, March 8, 1943, that the decision in the

Overstreet case applied to employees of a contrac-

tor engaged in the reconstruction and repair of

railroad bridges. As this Court has repeatedly

ruled, **‘Thenature of the employer’s business is not

determinative, * * * the application of the

Act depends upon the character of the employees’

6

activities.’? Overstreet v. North Shore Corp.,

supra; Kirschbaum Co. v. Walling, 316 U. 8S. 517;

Walling v. Jacksonville Paper Co., No. 336, this

Term, decided January 18, 1943; Warren-Brad-

shaw Drilling Co. v. Hall, No. 21, this ‘Term,

decided November 9, 1942.

The assumption by the Court below that the

term ‘‘engaged in commerce”’ is to be construed

more narrowly than the term ‘“‘production for

commerce”’ is mistaken.” This Court has held

that coverage under the phrase ‘‘engaged in

commerce’’’ extends ‘‘throughout the farthest

reaches of the channels of interstate commerce.”’

Overstreet v. North Shore Corp., supra; Walling

v. Jacksonville Paper Co., supra. The Court has

also indicated that the scope of coverage under

this phrase is commensurate with the scope of

coverage under the phrase ‘‘production for com-

merce.’’ Almost identical language has been used -

by the Court in defining the scope of the two

terms. In Kirschbawm Co. v. Walling, 316 U. S.

517, 525-526, work which ‘“‘had such a close and

immediate tie with the process of production for

commerce’”’ as to be ‘‘an essential part of it’? was

held to be ‘‘necessary to the production of goods

* Both the Eighth and Ninth Circuit Courts of Appeals

have held that cooks employed to prepare and serve meals

for employees of lumber companies producing goods for in-

terstate commerce are within the coverage of the Act. See

Hanson v. Lagerstrom, 133 F. (2d) 120 (C. C. A. 8); Con-

solidated Timber Co. v. Womack, 182 F. (2d) 101 (C. C.

A.9).

7

for ecommer:e.”? Correspondingly, in the Over-

street case, the Court held that the term “‘engaged

in commerce’’ includes work which “‘is so closely

related to such commerce as to be in practice and

- in legal contemplation a part of it.”’

B. Respondents’ commissary car is not a “service establishment”

within the meaning of the exemption provided in Section 13 (a) (2)

of the Act

The Court below ruled that its view of the case

made it unnecessary to express an opinion on the

‘‘persuasive contention’”’ that respondent was a

service establishment within the exemption pro-

vided by Section 13 (a) (2) of the Act (R. 13).

We submit that the contention is not sound.

Section 13 (a) (2) exempts from the wage and

hour provisions of the Act ‘“‘any employee engaged

in any retail or service establishment the greater

part of whose selling or servicing is in intrastate

commerce.’? The commissary car upon which

petitioner worked is used exclusively for the

benefit of the railroad maintenance-of-way em-

ployees and to further the railroad’s interstate

transportation operations; it falls outside both

the letter and purpose of these exemptive provi-

sions. The ‘“‘service establishment’’ intended to

’ The Administrator has expressed the view in Interpreta-

tive Bulletin No. 6, Wage Hour Division, United States De-

partment of Labor, paragraph 40, revised June 1941, that

employees working on a traveling commissary or camp car,

which goes along with the working construction crew on a

railroad right-of-way, are not within the exemption. Wage

Hour Man. (1942), p. 337.<

8

be exempted is one ‘‘which has the ordinary

characteristics of a retail establishment except

that it sells services instead of goods,’’ and whose

‘principal activity * * * is to furnish serv-

ic2 to the consuming public.’”’ Fleming v. A. B.

Kirschbaum Co., 124 F. (2d) 567, 572 (C. C. A.

3), affirmed 316 U.S. 517.‘ As the Circuit Court

‘The legislative history of the Act establishes that the

exemption stemmed from a desire to protect small retailers

selling directly to the general consuming public. The origi-

nal bills contained no exemption for retail or service estab-

lishments. Section 2 (a) (7) of the Senate Committee Bill

(S. 2475), passed by the Senate July 31, 1937, and by the

House May 24, 1938, as Section 11 (a) (1), provided an ex-

emption for employees working in a “local retailing capac-

ity.” But the apparent source of Section 13 (a) (2) was an

amendment offered by Representative Celler excepting “any

retail industry, the greater part of whose sales is in intra-

state commerce” which he proposed in order to dispel all

doubt as to the exemption of “retail dry goods, retail butch-

ering, grocers, retail clothing stores, department stores” (83

Cong. Rec. 7437, 7438). The amendment passed the House

but was not enacted.

The exemption, in substantially its present form, appeared

for the first time in the confidential Conference Committee

prints dated June 10, 11, and 12, 1938, respectively. These

drafts excepted “any employee engaged in any retail estab-

lishment the greater part of whose selling is in intrastate

commerce.” In the Conference Committee report dated

June 11, 1988, the words “or service” and “or servicing”

were added (H. Rept. 2738, 75th Cong., 3d sess.). The

explanation of the exemption in the report merely repeated

the language of Section 13 (a) (2) (Joint Hearings before

the Senate Committee on Education and Labor and the House

Committee on Labor on S. 2475 and H. R. 7200, June 2, 1937,

p. 32). The Conference Committees version of the bill was

adopted by both Houses of Congress on June 14, 1938 (83

ein a er

9

of Appeals for the Third Circuit pointed out

‘typical retail estal*ishments are grocery stores,

drug stores, hardware stores and clothing shops”’

(tbid.). Correspondingly, typical ‘‘service estab-

lishments’’ are ‘‘barber shops, beauty parlors,

shoe-shining parlors, clothes pressing clubs, laun-

dries, automobile repair shops, or the like.”

Wood v. Central Sand & Gravel Co., 33 F. Supp.

40, 47 (W. D. Tenn.) ; Consolidated Timber Co.

v. Womack, 132 F. (2d) 101, 107 (C. C. A. 9).

While an ordinary public restaurant would come

within this classification, respondents’ commissary

car is wholly different. The commissary car is

not located at readily accessible sites to attract the

patronage of the consuming public and does not

serve the general public. It is operated exclu-

sively to provide food for the railroad’s mobile

work crews and constitutes an integral part of the

main business of interstate transportation. It

does not function nor is it operated as an ordinary

restaurant. It does not cater to the public and it

is not in competition with ordinary restaurants.

The principal activity of the commissary car

Cong. Rec. 9178, 9266-9267), three days after the language

in question first appeared. The new language provoked no ~

discussion on the floor of either the House or Senate. The

absence of expression or comment upon the modification in-

dicates that no far-reaching extension of the original exemp-

tion for retail establishments was contemplated by the last-

minute addition of the words “or service.”

10

‘definitely was not to furnish service to the con-

suming public, as such, but was to serve the em-

vloyees’”’ engaged in maintaining the lines of the

railroad company. Cf. Consolidated Timber Co.

v. Womack, supra, at p. 107; Hanson v. Lager-

strom, 133 F. (2d) 120 (C. C. A. 8); see also

Walling v. Sondock, 132 F. (2d) 77 (C. C. A. 5),

certiorari denied, No. 683, March 8, 1943.

Even if it be assumed that respondents’ commis-

sary car were a ‘‘service establishment,’”’ the ex-

emption would be unavailable, because the require-

ment of Section 13 (a) (2) that ‘‘the greater part

of * * * [the] servicing [be] in intrastate

commerce”’ is not satisfied, despite the fact that

services rendered by the commissary car are all

performed within Texas. Since the railroad com-

pany is engaged in interstate commerce (R. 8)

and the work of the maintenance-of-way em-

ployees and the cook in the commissary car are

part of that interstate commerce, the greater part,

if not all, of the car’s services is in interstate com-

merce. See Kirschbaum Co. v. Walling, 316 U. S.

517, 526; Fleming v. Arsenal Bldg. Corp., 125 F.

(2d) 278, 280 (C. C. A. 2), affirmed, 316 U.S. 517.

CONCLUSION

Under the principles of the foregoing decisions,

petitioner is engaged in commerce within the

meaning of the Act, and is not exempted under

Section 13 (a) (2). Therefore, the judgment of

11

the Circuit Court of Appeals should be reversed.

Respectfully submitted.

CHARLES Fany,

Solicitor General.

RicHARD 8. SALANT,

Attorney.

TrvinG J. LEVY

Acting Solicitor,

BESSIE MARGOLIN,

Assistant Solicitor,

United States Department of Labor.

APRIL 1943.

APPENDIX

Fair Labor Standards Act, c. 676, 52 Stat.

1060 (29 U.S. C., see. 201 et seq.):

Sec. 2. (a) The Congress hereby finds

that the existence, in industries engaged in

commerce or in the production of goods for

commerce, of labor conditions detrimental

to the maintenance of the minimum stand-

ard of living necessary for health, efficiency,

and general well-being of workers (1)

causes commerce and the channels and in-

strumentalities of commerce to be used to

spread and perpetuate such labor con-

ditions 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 com-

merce; (4) leads to labor disputes burden-

ing and obstructing commerce and the free

flow of goods in commerce; and (5) inter-

feres with the orderly and fair marketing

of goods in commerce.

+ * * * *

Sec. 3. (b) ‘Commerce’? means trade,

commerce, transportation, transmission, or

communication among the several States or

from any State to any place outside thereof.

*

* # * *

Sec. 6. (a) Every employer shall pay to

each of his employees who is engaged in

commerce or in the production of goods for

commerce wages at the following rates—

* * * * *

(12)

13

Sec. 7. (a) No employer shall, except as

otherwise provided in this section, —7

in

‘any of his employees who is engag

commerce or in the production of goods

for commerce—

% -& * * #

Sec. 13 (a) * * * (2) any employee

engaged in any retail or service establish-

ment the greater part of whose selling or

servicing isinintrastatecommerce; * * *

6. 6. COVERNEERT PRINTING OFFICE: 1943

bt

GLANK PAGE

. bho Ah ARS CM ge te

SUPREME COURT OF THE UNITED STATES.

-No. 787.—OcroBer TERM, 1942.

L. McLeod, Petitioner, )

vs.

M. C. Threlkeld, et al., doing busi-

ness as Threlkeld Commissary

Company, a Partnership.

On Writ of Certiorari to the

United States Circuit Court

of Appeals for the Fifth

Circuit.

ie

4

[June 7, 1943.]

Mr. Justice Rreep delivered the opinion of the Court.

This certiorari brings here for examination a judgment of the

Circuit Court of Appeals for the Fifth Circuit, 131 F. 2d 880,

which held that a cook, employed by respondents to prepare and

serve meals to maintenance-of-way employees of the Texas and

New Orleans Railroad Company, is not engaged in commerce

under sections 6 and 7 of the Fair Labor Standards Act and

therefore not entitled to recover for an alleged violation of that

act.}

The respondents are a partnership with a contract to furnish

meals to maintenance-of-way employees of the railroad, an inter-

state carrier. The meals are served in a cook and dining car

attached to a particular gang of workmen and running on the

railroad’s tracks. The car is set conveniently to the place of

work of the boarders and in emergencies follows the gang to

the scene of its activities. Employees pay the contractor for

their meals by orders authorizing the railroad company to de-

duct the amount of their board from wages due and pay it over

to the contractor. The petitioner worked as cook at various points

in Texas along the line of the road during the period in question.

As the extent of the coverage by reason of the phrase ‘‘en-

gaged in commerce’’ is important in the administration of the

Fair Labor Standards Act, we granted certiorari, — U. S. —.

152 Stat. 1062-63. ‘‘Sec. 6. (a) Every empioyer shall pay to each of his

employees who is engaged in commerce or in the production of guods for

commerce wages at the following rates—

‘*Sec. 7. (a) No employer shall, except as otherwise provided in this sec-

tion, employ any of his employees who is engaged in commerce or in the

production of goods for commerce... .

r4

2 McLeod vs/Threlkeld et al.

In drafting legislation under the power granted by the Con-

stitution to regulate interstate commerce and to make all laws

necessary and proper to carry those regulations into effect, Con-

gress is faced continually with the difficulty of defining accurately

the precise scope of the proposed bill. In the Fair Labor Stand-

ards Act, Congress did not intend that the regulation of hours

and wages should extend to the furthest reaches of federal au-

thority. The proposal to have the bill apply to employees ‘‘en-

gaged in commerce in any industry affecting commerce’’ was

- rejected in favor of the language, now in the act, ‘‘each of his

employees who is engaged in commerce or in the production of

goods for commerce.’ Sections 6 and 7. See the discussion

and reference to legislative history in Kirschbaum v. Walling,

316 U. S. 517, and Walling v. Jacksonville Paper Co., No. 336,

October Term, 1942. The selection of the smaller group was de-

liberate and purposeful.

McLeod was not engaged in the production of goods for com-

merce. His duties as cook and caretaker for maintenance-of-

way men on a railroad lie completely outside that clause.* Our

question is whether he was ‘‘engaged in commerce.’’* We have

held that this clause covered every employee in the ‘‘channels of

interstate commerce,’’ Walling v. Jacksonville Paper Co., No.

336, October Term 1942, as distinguished from those who merely

affected that commerce. So handlers of goods for a wholesaler

who moves them interstate on order or to meet the needs of spe-

cified customers are in commerce, while those employees who

handle goods after acquisition by a merchant for general local

disposition are not.5 Employees engaged in operating and main-

taining privately owned toll roads and bridges over navigable

2 The distinction in the coverage arising from this choice of language was

well known to Congress. Cf. National Labor Relations Act, 49 Stat. 448,

450. Labor Board v. Jones & Laughlin, 301 U. 8S. 1, 31 et seg.; Bituminous

Coal Act of 1937, Sec. 4-A, 50 Stat. 72, 83; Agricultural Adjustment Act, 50

Stat. 246; Public Utility Holding Company Act of 1935, 49 Stat. 803 § 1(c).

8 52 Stat. 1061. ‘‘(i) ‘Goods’ means goods (including ships and marine

equipment), wares, products, commodities, merchandise, or articles or sub-

jects of commerce of any character, or any part or ingredient thereof, but

does not include goods after their delivery into the actual physical possession

ef the ultimate consumer thereof other than a producer, manufacturer, or

processor thereof.’’

4 Cooks employed to feed workers engaged in the production of goods for

commerce have been* held to be similarly engaged. Hanson v. Lagerstrom,

133 F. 2d 120; Consolidated Timber Co. v. Womack, 132 F. 2d 101.

5 Walling v. Jacksonville Paper Co., supra; Higgins v. Carr Bros. Co., No.

97, October Term 1942.

McLeod vs. Threlkeld et al. 3

waterways are ‘‘engaged in commerce.’’ Overstreet v. North

Shore Corporation, No. 284, October Term 1942. So are em-

ployees of contractors when the employees are engaged in re-

pairing bridges of interstate railroads. Pedersen v. J. F. Fitz-

gercld Construction Co., No. 396, October Term 1942. Journal,

Supreme Court of the United States, October Term 1942, p. 177.

In the present instance, it is urged that the conception of ‘‘in

commerce’’ be extended beyond the employees engaged in actual

work upon the transportation facilities. It is said that this Court

decided an employee, engaged in similar work was ‘‘in com-

merce,’’ under the Federal Employers’ Liability Act’ and that

it is immaterial whether the employee is hired by the one engaged

in the interstate business since it is the activities of the employee

and not of the employer which are decisive.®

Judicial determination of the reach of the coverage of the Fair

Labor Standards Act ‘‘in commerce’’ must deal with doubtful

instances. There is no single concept of interstate commerce

which can be applied to every federal statute regulating com-

merce. See Kirschbawm v. Walling, supra, 520. However, the

test of the Federal Employers’ Liability Act that activities so

closely related to interstate transportation as to be in practice

and legal relation a part thereof are to be considered in that

commerce, is applicable to employments ‘‘in commerce’’ und °

the Fair Labor Standards Act.®

The effect of the over-refinement of factual situations which

hampered the application of the Federal Employers’ Liability

Act, prior to the recent amendment,!® we hope, is not to be re-

peated in the administration and operation of the Fair Labor

6 The contention that the work of the employee is covered by the exemption

of Sec. 13(a) (2)—‘‘ any employee engaged in any retail or service establishment

the greater part of whose selling or servicing is in intrastate commerce’’—

seems without significance. If the work is in interstate commerce, the exemp-

tion does not apply. Compare Consolidated Timber Co. v. Womack, 132 F.

2d 101, 106, et seq.; Hanson v. Lagerstrom, 133 F. 2d 120.

7 Phila., B. & W. R. R. Co. v. Smith, 250 U. 8. 101. This case construed

the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. 65, $1;

‘*Every common carrier by railroad while engaging in commerce . . . shall

be liable in damages... .’’

8 Walling v. Jacksonville Paper Co., No. 336 October Term 1942; Kirsch-

baum v. Walling, 316 U. 8. 517, 524.

9 Shanks v. Del., Lack, & West. R. R., 239 U. 8. 556, 558; Chicago & N. W.

Ry. Co. v. Bolie, 284 U. 8. 74, 78; Chicago & E. I. R. Co. v. Commission, 284

U. 8. 296; N. Y¥!, N. H. & H. R. Co. v. Bezue, 284 U. 8. 415, 419.

10 Act of August 11, 1939, 53 Stat. 1404; Hearings, Senate Committee on

the Judiciary, Amending the Federal Employers Liability Act, March 28 and

29, 1939, pp. 3-9, 26-30; S. Rep. No. 661, 76th Cong., 1st Sess.

4 McLeod vs. Threlkeld et al.

Standards Act. Where the accident occurs on or in direct con-

nection with the instrumentalities of transportation, such as

tracks and engines, interstate commerce has been used inter-

changeably with interstate transportation.1! But where the dis-

tinction between what a common carrier by railroad does while

engaging in commerce between the states, i. e., transportation,

and interstate commerce in general is important, the Federal

Employers’ Liability Act was construed prior to the 1939 amend-

ment as applying to transportation only.?*

The Smith?* case construed the Employers’ Liabitity Act to

apply to a eook and caretaker employed by the railroad to care

for a camp car used for feeding and housing a group of the rail-

road’s bridge carpenters. At the time of the accident the cook

was engaged in these duties. In holding the cook was ‘‘in com-

merce’’ this Court said: :

*‘The circumstance that the risks of personal injury to which

plaintiff was subjected were similar to those that attended the

work of train employees generally and of the bridge workers

themselves when off duty, while not without significance, is of

little moment. The significant thing, in our opinion, is that he

was employed by defendant to assist, and actually was assisting,

the work of the bridge carpenters by kecping their bed and board

close to their place of work, thus rendering it easier for de-

fendant to maintain a proper organization of the bridge gang

and forwarding their work by reducing the time lost in going to

-and from their meals and their lodging place. If, instead, he had

brought their meals to them daily at the bridge upon which they

happened to be working, it hardly would be questioned that his

work in so doing was a part of theirs. What he was in fact doing

was the same in kind, and did not differ materially in degree.

Hence he was employed, as they were, in interstate commerce,

within the meaning of the Employers’ Liability Act.’’ 250 U. 8.

101, 104.

Such a ruling under the Federal Employers’ Liability Act, after

the Bolle, Industrial Commission and Bezue cases, supra, note 9,

should not govern our conclusions under the Fair Labor Stand-

ards Act. These three later cases limited the coverage of the

Federal Employers’ Liability Act to the actual operation of

transportation and acts so closely related to transportation as

11 Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 151; cf. Overstreet

v. North Shore Corp., No. 284, Octobez Term 1942.

12 See the cases cited in note 9, supra.

13 Phila., B. & W. R. R. Co. v. Smith, 250 U. 8, 101.

McLeod vs. Threlkeld et al. 5

to be themselves really a part of it. They recognized the fact

that railroads carricd commerce and were thus a part of it but

that each employment that indirectly assisted the functioning of

that transportation was not a part. The test under this present

act, to determine whether an employee is engaged in commerce, is

not whether the employee’s activities affect or indirectly relate

to interstate commerce but whether they are actually in or so

closely related to the movement of the commerce as to be a part

of it.14 Employee activities outside of this movement, so far as

they are covered by wage-hour regulation, are governed by the

other phrase, ‘‘production of goods for commerce,’’!5

It is not important whether the employer, in this case the con-

tractor, is engaged in interstate commerce. It is the work of the

employee which is decisive. Here the employee supplies the per-

sonal needs of the maintenance-of-way men. Food is consumed

apart from their work. The furnishing of board seems to us as

remote from commerce, in this instance, as in the cases where

employees supply themselves. In one instance the food would

be as necessary for the continuance of their labor as in the other.

We agree with the conclusion of the District Court and the

Circuit Court of Appeals that this employee is not engaged in

commerce under the Fair Labor Standards Act.

Affirmed.

14 Thus we said as to a rate clerk employed by a motor transportation

company:

‘*Tt is plain that the respondent as a transportation worker was engaged

in commerce within the meaning of the Act, . . .’’ Overnight Motor Co. v.

Missel, 316 U. S. 572, 575.

15 52 Stat. 1060-61.

See. 3. ‘‘(b) ‘Commerce’ means trade, commerce, transportation, trans-

mission, or communication among the several States or from any State to

any place outside thereof.

‘¢(j) ‘Produced’ means produced, manufactured, mined, handled, or in

any other manner worked on in any State; and for the purposes of this Act

an employee shall be deemed to have been engaged in the production of goods

if such employee was employed in producing, manufacturing, mining, handling,

transporting, or in any other manner working on such goods, or in any process

or occupation necessary to the production thereof, in any State.’’

6 McLeod vs. Threlkeld et al.

Mr. Justice MurpuHy, dissenting.

I think that petitioner is covered by the Fair Labor Stand-

ards Act.

In using the phrase ‘‘engaged in commerce’’ Congress meant

to extend the benefits of the Act to employees ‘‘throughout the

farthest reaches of the channels of interstate commerce’’. Waliing

v. Jacksonville Paper Co., 317 U. S. 564, 567. We recently con-

strued the phrase tc include employees whose activities are so

closely related to interstate commerce ‘‘as to be in practice

and in legal contemplation a part of it.’’ Overstreet v. North

Shore Corp., 318 U. S. 125, 129, 130, 182. This practical test

was derived from cases such as Pedersen v. Del., Lack. & West.

R. R., 229 U. S. 146, 151, and Phila., B. & W. R. R. Co. v. Smith,

250 U. S. 101, construing similar language in the Federa] Em-

ployers’ Liability Act.1. The activities of petitioner in cooking

for a traveling maintenance crew of an interstate railroad are

sufficient to satisfy this test. It was so held in the Smith case,

250 U. S. 101, the facts of which are virtually identical with

the instant case except for the immaterial difference that peti-

tioner here was employed by an independent contractor rather

than by the railroad itself. The reasoning of the Smith case

is persuasive and should control this one.

The opinion of the Court, however, rejects the concept of

coverage used in the Smith case for the narrower test of whether

an employee is engaged ‘‘in interstate transportation or in work

so closely related to it as to be practically a part of it’’, used

in another line of cases under the Federal Employers’ Liability

Act.2 I think this is wrong for several reasons.

The Fair Labor Standards Act extends to employees ‘‘engag2d

in commerce’’, not merely to those engaged in transportation. As

the Bolle case itself points out: ‘‘Commerce covers the whole field

ce

1 Act of April 22, 1908, 35 Stat. 65, as it was before the amendment of

1939, 53 Stat. 1404. 45 U. 8S. C. § 51 et seq.

2 The application of the Fair Labor Standards Act, of course, depends upon

the character of the employees’ activities, not the nature of the employer’s

business. Overstreet v. North Shore Corp., 318 U. S. 125, 132, and cases cited.

8 Shanks v. Del., Lack. & West. R. R., 239 U. 8. 556, 558; Chicago & N. W.

Ry. Co. v. Bolle, 284 U. 8 74; Chicago & E. I. R. Co. v. Commission, 284

U. 8. 296; N. Y., N. H. & H. R. Co. v. Bezue, 284 U. 8S, 415.

4The Act defines ‘‘commerce’’ as: ‘‘trade, commerce, transportation,

transmission, or communication among the several States or from any State

to any place outside thereof.’’ 52 Stat. 1060, 29 U. 8. C. § 203.

McLeod vs. Threlkeld et al. 7

of. which transportation is only a part’’. 284 U.S. at 78. Hence,

whatever basis there may have been for restricting the coverage

of the Federal Employers’ Liability Act to employees actually

engaged in transportaticn because of the fact that the Act ap-

plied only to those working for employers engaged in interstate

transportation by rail,5 can have no possible application or bearing

on the interpretation of the Fair Labor Standards Act. The

coverage of this Act is much more extensive. It is not limited

to employees of interstate carriers but extends generally to em-

ployees engaged in all kinds of commerce, including transpor-

tation. Nothing in the Act suggests that it has a narrower ap-

plication to employees whose work ‘‘in commerce’’ is transpor-

tation or work connected therewith, than it has to employees

who are engaged in commerce but whose work has nothing to

___ do with traisportition. Such a construction is untenable be-

cause it woulc cliscriminate without reason between different

types of employees, aii of whom fall within the same general

statutory classification of ‘‘engaged in commerce’’. |

The necessary effect of rejecting the Smith case for the re-

strictive concept of ‘‘in commerce’’ which was used in the

Shanks,® Bolle,? Commission? and Bezue® cases is to introduce

into the administration of the Fair Labor Standards Act that

coneededly undesirable confusion which characterized the appli-

eation of the Federal Employers’ Liability Act and prompted

the 1939 amendment (53 Stat. 1404) which in effect repudiated

the narrow test of the Shanks line of cases. The reality of this

confusion is readily demonstrable. We have held that a rate

clerk employed by an interstate motor carrier! and a seller of

tickets on a toll bridge over which interstate traffic moves! are

both ‘‘engaged in commerce’’ within the meaning of the Fair

Labor Standards Act. Yet in the view of the majority of the

Court when the employees’ activities are in the field of trans-

portation, the Act apparently will not cover’? those who work

5 See Chicago & N. W. Ry. Co. v. Bolle, 284 U. S. 74, 78.

62°39 U. 8. 556.

7284 U. S. 74.

8 284 U, 8, 296.

9 284 U. &. 415.

10 Overnight Motor Co. v. Missel, 316 U. 8S. 572.

11 Overstreet v. North Shore Corp., 318 U. S. 125.

12 This is discussed wholly apart from the question of the applicability of

§ 7 because of the exemption contained in §13(b)(1) of the Act. See

Southland Gasoline Co. v. Bayley, — U. 8. —, No. 581 this Term.

8 McLeod vs. Threlkeld et al.

in an interstate carrier’s repair shop on facilities to supply

power for machinery used in repairing instrumentalities of trans-

portation,’* or who heat cars and depots used by interstate pas-

sengers,'+ or who store fuel for the use of interstate vehicles,!®

or who work on such vehicles when withdrawn for the moment

from commerce for repairs.1® The anomaly of this is clear—

there is no sound reason for extending the benefits of the Act

to a rate cierk employed in the office of an interstate motor carrier

and denying them to the janitor who keeps the office clean and

warm, or the employee who works in the ecarrier’s shop on ma-

chinery used to repair interstate vehicles, or on the vehicles

themselves. ;

If the applicable provision were ‘‘engaged in the production

of goods for commerce’’ instead of ‘‘engaged in commerce’’, our

decisions make it clear that employees such as the janitor and

the shop tender and probably petitioner would be within the Act.

Cf. Kirschbaum Co. v. Walling, 316 U. S. 517; Warren-Bradshaw

Co. v. Hall, 317 U. S. 88.1% The phrase ‘‘engaged in commerce’’

should be as brcadty construed. In the words of one of the

Act’s sponsors, the phrase extends to ‘‘employees who are a neces-

sary part of carrying on’’ a business operating in interstate

commerce.'® Petitioner’s work was evidently considered neces-

sary to the operation of the railroad, else it would have made

no provision for boarding its maintenance crews. We have east

the revelant tests for determining the scope of the two phrases

of coverage in substantially similar language. In Kirschbawm

Co. v. Walling, work which ‘‘had such a close and immediate tie

with the process of production for commerce’’ as to be ‘‘an

essential part of it’’ was held to be ‘‘necessary to the production

of goods for commerce’’. 316 U. S. at 525-26. Correspondingly,

“é

12 Cf. Shanks v. Del., Lack. & West. R. R., 239 U. S. 556.

14 Cf. Chicago & N. W. Ry. Co. v. Bolle, 284 U. S. 74.

15 Cf, Chicago & E. I. R. Co. v. Commission, 284 U. 8. 296.

16 Cf. N. Y., N. H. & H. R. Co. v. Bezue, 284 U. S. 415.

17 Employees cooking for workers engaged in the production of goods for

commerce have been held to be similarly engaged and covered by the Act.

Consolidated Timber Co. v. Womack, 132 F. 2d 101; Hanson v. Lagerstrom,

133 F. 2d 120.

18 Speaking for the Senate conferees on the Conference Report, Senator

Borah said: ‘‘ .. . if the business is such as to occupy the channels of

interstate commerce, any of the employees who are a necessary part of carry-

ing on that business are within the terms of this bill, and, in my opinion, are

under the Constitution of the United States.’’ 83 Cong. Rec. 9170.

McLeod vs. Threlkeld et al. 9

in Overstreet v. North Shore Corp., we held that the phrase

‘“engaged in commerce’’ includes work which ‘‘is so intimately

related to interstate commerce ‘as to be in practice and in legal

contewplation a part of it’’’. 318 U. S. at 130. The purpose

of the ‘‘production of goods for commerce’’ phrase was obviously

not to cut down the scope of ‘‘engaged in commerce’’, but to

broaden the Act’s application by reaching conditions in the

production of goods for commerce which Congress considered

injurious to interstate commerce. See Untted States v. Darby,

312 U. S. 100. The effect of the Court’s decision today, how-

ever, is to recognize that federal power over commerce has been

sweepingly exercised when an employee’s work is in the pro-

duction of goods for commerce, but to limit it, when the em-

ployee’s activities are in transportation or connected therewith,

to the narrow and legislatively repudiated view of the Shanks,

Bolle, Commission and Bezue cases. Such an unbalanced appli-

eation of the statute is contrary to its purpose of affording cov-

erage broadly ‘‘throughout the farthest reaches of the channels

of interstate commerce’’ to employees ‘‘engaged in commerce’’.

The judgment should be reversed.

Mr. Justice Buacx, Mr. Justice Doucias and Mr. Justice Rut-

LEDGE join in this dissent.