Petition for Writ of Certiorari — Rennekamp v. Mitchell (No. 882)

LIBRARY %

RENE COURT, U. 5. MAR 311858

Supreme Court of the United States

xo. 88.2

OCTOBER TERM, 1957

JAMES P. MITCHELL, Secretary of Labor,

U. S. Department of Labor

V.

KENNETH E. RENNEKAMP, Individually and Doing

Business as Radio Station WEMR, Petitioner

PETITION OF KENNETH E. RENNEKAMP FOR

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FORK THE THIRD CIRCUIT,

NO. 12,278

Davin R. LEVIN

KENNETH E. Rar-NERRAur

Attorneys for Petitioner

345 Fourth Avenue

Pittsburgh 22, Pa.

SMITH BROS. CO. HC., LAW PRINTERS, 434-456 BivVO. OF ALLIES, PIT YTSOeURGH WB, FA.

INDEX

PAGE

Petition for Writ of Certiorari........... . 1-13 incl.

Grounds of jurisdictio n 2

Date of Judgment to be reviewed........... 2

Statutory provision conferring jurisdiction to

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Statement of Questions for review.......... 2

Constitutional provisions and statutes involved

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Statement of the case.................... 5

Argument and reasons for allowance of the

MO aN eo ꝶmmmmʒmʒd kk oda we kkk 4-12

Opinions :

Court of Appeals, / oS Sig yw dw 15-16

US District Court, in Record from Court of

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Fifth Amendment to U.S. Constitution iv: me

Fair Labor Standards Act of 1938 as amended. .

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—U)U—ͤ A ᷣͤ bee ae 17

111. · ˙ m ee enetrerant 18

ä: 8 18-21

Testimony of Charles A. Welsh, Ir. 23-24

TABLE OF CASES

Associated Press v. N.L.R.B., 301 U.S. 103. 8, 9,16

Associated Press v. U.S., 326U.S1............. 8. 9, 18

Bolling et al. v. Sharpe et al., 347 U.S. 497......... 12

Brooklyn Bank v. ONeill, 324 U.S. 697 9

Lorain Journal v. U.S., 342 U.S. 143... 8, 9, 16

Mabel v. White Plains Publishing Co., 327 U.S. 178. 8

Mitchell v. Joyce Agency, 211 F.2d 214. ie

Mitchell v. Raines, 136 F. Supp.5................. 12

ele v. Star Overall Dry Cleaning Co., 149 F 2d 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1957

JAMES P. MITCHELL, Secretary of Labor,

U. S. Department of Labor

V.

KENNETH E. RENNEKAMP, Individually and Doing

Business as Radio Station WEMR, Petitioner

PETITION OF KENNETH E. RENNEKAMP FOR

WRIT OF CERTIORARI. TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT,

NO. 12,278

To the Honorable, the Judges of the Said Court:

The Petition of Kenneth E. Rennekamp respectfully

represents:

1. That he was the defendant in a proceeding which

originated in the United States District Court for the

Western District of Pennsylvania.

2. The opinion of the United States District Court

for the Western District of Pennsylvania is set forth

in the record certified from the Court of Appeals for the

Third Cireuit and transmitted herewith. The opinion

Petition for Writ of Certiorari.

of the Court of Appeals for the Third Circuit has been

certified by the Clerk of that court and is a part of this

proceeding Appendix, 15-16. Petitioner is not awa-e that

either of the opinions mentioned have been reported in

any Official or unofficial reports.

3. Petitioner seeks a review of the judgment of

the Court of Appeals for the Third Circuit entered on

the second day of January, 1958. No order has been

entered respecting a re-hearing or granting an extension

of time within which to petition for certiorari. Juris-

diction to review the judgment of the Court of Appeals

by Writ of Certiorari is conferred upon this Honorable

Court by the Act of Congress of June 25, 1948 c.646, 62

Stat. 928; 28 U.S.C.A., section 1254, which provides that

cases in the courts of appeal may be reviewed by this

Honorable Court by Writ of Certiorari granted upon

petition of any party to any civil or criminal case before

or after rendition of judgment or decree.

4. This Honorable Court is being requested to re-

view and determine whether the defendant, as the owner

of a small radio station with power of 100 watts and a

signal limited to a radius of 10 miles, situated at Empor-

ium, Pennsylvania, 51 miles from the nearest state line,

was subject to the provisions of the Fair Labor Standards

Act of 1938, June 25, c.676, 52 Stat. 1060, and Fair Labor

Standards Amendments of 1949, Oct. 26, c.736, 63 Stat.

910; 29 U.S.C.A. section 201, et seq. A subsidiary ques-

tion involves the jurisdiction of the U. S. District Court

to enter a decree against defendant enjoining him from

future violations of the said Act. Disputed issues of fact

involved in the proceeding in the U. S. District Court and

argued before the U. S. Court of Appeals for the Third

Circuit will not be presented for review.

Petition for Writ of Certiorari.

5. The case involves the rights of the petitioner

under the Fifth Amendment to the Constitution of the

United States and the Fair Labor Stendards Act of 1938,

as é.uended, 29 U. S. C. A. section 201, et seq. The ap-

plicable provisions of the Constitution of the United

States and of the said Act are set forth in the Appendix

hereto.

6. Petitioner was the owner of Radio Station

WEMR situated at Emporium, Pa., a community 51 miles

from the nearest state line. The radio station operated

under 100 watts power with a signal strength of 10 miles

in radius. On November 28, 1956 its license was sur-

rendered to the Federal Communicatiors Comiſtission

for cancellation, and the station dismantled. While in

operation, the said radio station would normally be kept

on the air by a single employee at any given time, to-wit,

an engineer-announcer, except for occasional broadcasts

originating outside of the station when an additional

employee would be required at the outside point. The

complaint filed in the U. S. District Court alleged ap-

plicability of the Fair Labor Standards Act of 1938, as

amended; that the District Court had jurisdiction; that

defendant violated the minimum wage, maximum hours,

and record-keeping provisions of the Act, and prayed

for the issuance of an injunction restraining the defend-

ant from future violations. The defendant filed an An-

swer denying the applicability of the Act, the jurisdiction

of the court, and the violations alleged. After a hearing

before Honorable Joseph P. Willson, District Judge, with-

out a jury, the issues of law and fact were decided against

the defendant and a motion for new trial was, after argu-

ment, refused. An appeal was taken to the U. S. Court

of Appeals for the Third Circuit at 2 12.278, argued be-

Petition for Writ of Certiorari.

fore McLaughlin, Kalodner and Staley, Circuit Judges,

and a judgment and per curiam opinion were thereafter

filed affirming the judgment of the District Court.

7. Petitioner respectfully prays for the allowance

of a Writ of Certiorari and a review of the judgment of

the Court of Appeals for the Third Circuit for the rea-

sons hereinafter set forth. Your petitioner, as the oper-

ator of the smallest type of radio station, engaged in

a purely local operation, is one of many operators of

smail stations situated throughout the United States

who are in the same position as petitioner and whose

business and property rights will be affected by the de-

termination of this Honorable Court in this proceeding.

Both the District Court and the Court of Appeals

treated the present action in a routine manner and failed

to give due consideration to the substantial issues ef

involved. These issues of law have never been squarely

raised in, or directly passed upon by, any Federal court

prior to the present proceeding.

Section 6 of the Act (29 U.S.C.A. Sec. 206) requires

every employer covered by the Act to pay certain min-

imum wages to each of his employees “who is engaged

in commerce or the production of goods for commerce.”

(Appendix, 17). Section 7 (29 U.S.C.A. Sec. 207) pro-

vides for certain maximum hours of employment at the

minimum rate and for a higher rate for hours worked

over 40 by any employee “engaged in commerce or in

the production of goods. . for commerce” (Appendix

18).

Section 3(b) of the Act (29 U.S. C. A. Sec. 203 (b))

defines commerce“ as follows: (b) ‘Commerce’ means

trade, commerce, transportation, transmission, or com-

munication among the several States or between any

2

. a 5

Petition for Writ of Certiorari.

State and any place outside thereof.” On the undisputed

facts, petitioner’s employees were not engaged in com-

merce” as so defined. 5

Section 3 (i) of the Act defines “goods” as follows:

““gocds’ means goods - -, Wares, products, merchan-

dice, or articles or subjects of commerce of any character,

or any part or ingredient thereof, but it does not include

goods after their delivery into the actual physical pos-

session of the ultimate consumer thereof other than a

producer, manufacturer, or processor thereof. . .” (Em-

phasis supplied). s

Petitioner respectfully submits, and did submit at

the argument before the Court of Appeals, that the Fair

Labor Standards Act of 1938 as amended did not apply

to him since his employees were not, on the admitted

facts, engaged in interstate commerce or in the produc-

tion of goods for commerce as defined in Section 3, sub-

sections (b) and (i) of the Act; that the admitted limit

to the signal of his radio station was a radius of 10

miles; in view of the judicial cognizance taken by the

District Court Judge that the nearest state line was 51

miles away, petitioner's radio station did not transmit

across state lines and was a purely local operation, and

that in receiving news from Associated. Press, petitioner

was in the position of “the ultimate consumer thereof”

whose employees were exempt from coverage of the

Act.

The opinion of the Court of Appeals ( Appendix 15-

16) indicates that the sole basis of jurisdiction asserted

below was the receipt of news by petitioner from an

Associated Press wire. This petitioner, as well as other

operators of small local radio stations do not furnish

news back to Associated Press for transmission and use

Petition for Writ of Certiorari.

elsewhere ; the transaction between the Associated Press

and the petitioner as an associate member was a one-

way transaction, by teletype (Appendix 24). When the

news was received by the petitioner it was not sold by

him as a service or an article of commerce, but was broad-

cast over his station free for the purpose of attracting

and holding an audience of listeners in order to make the

various broadcast time periods valuable for sale to po-

tential advertisers. The business of petitioner was the

sale to advertisers of various portions of the broadcast

time of station WEMR.

In furtherance of that business, the operator of a

radio station utilizes the news received from the Asso-

ciated Press as “window dressing” in the same manner

as the operator of a retail store displays his merchandise

and uses decorative materials as background, or in other

Ways, to embellish his displays of merchandise and at-

tract attention. When the retail storekeeper buys such

decorative or display materials for purposes of embell-

ishment, it can hardly be argued that he is other than

an ultimate consumer of those materials. By the same

token, when the petitioner made use of the news received

from Associated Press to “embellish” a particular por-

tion of his broadcast time in order to attract an audience,

he was in the same manner “consuming” or using up

the news items he received for a purpose purely incidental

to his main business.

Upon this basis, the receipt by the petitioner of

news from the Associated Press was in the capacity of

ultimate consumer. In that capacity and by definition

under Section 3, subsections (b) and (i), the employees

of the petitioner were not engaged in commerce or in

the production of goods for commerce, and the Act should

have been declared inapplicable.

Petition for Writ of Certiorari.

This conclusion is supported by the decision in Phil-

lips v. Star Overall Dry Cleaning Company, C. C. A. New

York 1945; 149 F. 2d 416, certiorari denied 327 U.S. 780,

re-hearing denied 327 U.S. 817, wherein it was held that

the “delivery” contemplated under subsection (i) of

Section 3 of the Act is one that gives the ultimate con-

sumer the right to deal with the goods as his own while

they are being consumed. Clearly, Rennekamp had the

right to deal with the news which he received from the

Associated Press as his own, to use or not to use the

same in whe", or in part, to edit the same, to determine

how often the items would be repeated over his station,

and in all respects to deal with the news reports in the

same manner as he could deal with any other commodity

or piece of equipment purchased by him for use in his

radio station. (Cr. testimony of Welsh, Appendix 24

That Congress intended to exempt from the pro-

visions of the Act business activities which are primarily

local in character is clear from the nature of the num-

erous exemptions set forth in Section 13 of the Act ( Ap-

pendix 18-21).

For example, the following is a partial listing of

exemptions: Any employee of any retail or service es-

tablishment or establishment engaged in laundering,

cleaning, or repairing clothing or fabrics more than 50%

of which establishment's annual dollar volume of sales

is made within the State; any employee employed in con-

nection with the publication of any weekly, semi-weekly,

or daily newspaper with a circulation of less than 4,000

the major part of which circulation is within the county

where printed and published or counties contiguous

thereto; any switchboard operator employed in a public

telephone exchange which has not more than 750 sta-

|

Petition for Writ of Certiorari.

tions; any employee or proprietor in a retail or service

establishment engaged in handling telegraphic messages

for the public under an agency or contract arrangement

with a telegraph company where the telegraph message

revenue of such agen«y does not exceed $500.00 a month;

any employee engaged in the delivery of newspapers to

the consumer.

As pointed out by this court in the opinion of Mr.

Justice Douglas in Walling v. Jacksonville Paper Com-

pany, 317 U.S. 564 (1943), 570, a case also arising under

the Fair Labor Standards Act: in this connection

we cannot be unmindful that Congress in enacting this

statute plainly indicated its purpose to leave local busi-

ness to the protection of the states

A similar thought was expressed by Mr. Justice

Douglas speaking for this Honorable Court in Mabee v.

White Plains Publishing Couipany, 327 U. S. 178 (1946)

at page 184 where, referring to the exemption of smail

weekly and semi-weekly newspapers (the Act now also

exempts small daily newspapers) from coverage under

the Act, the opiniun states that such exemption is not a

“deliberate and calculated device to penalize a certain

group of newspapers. . As we have seen, it was in-

serted to put those papers more on a parity with other

small town enterprises.”

The plaintiff below, the District Court, and the Court

of Appeals all rely upon the decisions in Lorain Journal

v. U. S., 342 U.S. 143 (1951), Associated Press v. U.S.,

326 U.S. 1 (1945), and Associated Press v. N. L. R. B. 301

U.S. 103 (1937) to sustain the applicability of the Act

to the petitioner and the jurisdiction of the Federal

courts. Reliance on these decisions is in error for the

following reasons: ’

Petition fer Writ of Certiorari.

(a) In the Lorain Journal case, the question of ap-

plicability of the Fair Labor Standards Act of 1938 to

a mall radio station was not raised or directly involved.

That was an action brought under the Sherman Anti-

Trust Act to restrain improper practices by the news-

paper against the interests of the radio station which

was assumed to be engaged in interstate commerce and

which assumption could be supported on the basis of

the much greater power of the radio station involved,

reaching into all or part of 20 counties and an estimated

population of 450,000 as shown in the official opinion.

There is no basis for comparison between the radio sta-

tion in the Lorain Journal case and the small, purely

local station operated by the petitioner at Emporium, |

Pa. Furthermore, an adjudication under one statute is

not necessarily controlling in a case arising under a dif-

ferent statute: Brooklyn Bank v. O’Neill, 324 U.S. 697

(1945).

(b) The two Associated Press cases are not au-

thority in the instant case for the reason that they deal

with a situation and a business which is in no wise par-

allel to the instant case. The Associated Press cases

involve the employees engaged in providing a continuous

flow of news across state lines on a two-way basis. The

nature of the services of the Associsted Press was the

furnishing of news to its member newspapers in various

states and the receipt of news from the member news-

papers for transmission of the same in the opposite

direction to other newspaper members in other parts of

the country. :

There is no similarity between the situation of the

direct employees cf the Associated Press and the three

10

Petition for Writ of Certiorart.

or four employees of the petitioner in the operation of

station WEMR. The testimony produced by plaintiff dis-

closed that the petitioner was not a regular member of

the Associated Press but was in a separate category

known as an “Associate Member”, involving an arrange-

ment entirely different from that between the Associated

Press and its newspaper members. The petitioner as the

operator of station WEMR received news by teletpye

under a special news service for associate members re-

ferred to as a special radio service. (Appendix 24).

As already pointed out above, in receiving that service,

the petitioner and operators of similar local stations

throughout the country, constitute the “ultimate con-

sumers“ in the sense that said term is used in subsection

(i) of Section 3 exempting from the scope of the Fair

Labor Standards Act goods after their delivery into the

actual physical ; ssession of the ultimate consumer

thereof. :

Subsection (a) 8 of Section 13 of the Act, 29 U.S.C.A.

Section 213, expressly exempts from coverage any em-

ployee employed in connection with the publication of

any weekly, semi-weekly, or daily newspaper with a

circulation of less than 4,000 the major part of which

circulation is within the county where printed or pub-

lished or contiguous thereto .. .. This presents the

second basic question involved in this proceeding.

To construe the Fair Labor Standards Act as ap-

plicable to the petitioner would result in violation of

his constitutional rights under the Fifth Amendment to

the Constitution of the United States which guarantees

that no person shall be deprived of life, liberty or prop-

erty, without due process of law . . .”. (Appendix 22)

11

Petition for Writ of Certiorari.

In view of the absence from the Act of any specific

reference tc radio stations, and since the small Iccal

radio station of the petitioner was held to be covered

under the Act upon the same basis as newspapers, to-wit,

receipt of news from the news services and dissemination

of such news, the exemption provided in the Act for small

local newspapers should properly be applied to small

local radio stations which are, in all significant respects,

upon the same footing as the exempted newspapers. A

comparison of the relative positions of the small local

newspapers, expressly exempted in the Act from its

coverage, and the small local radio stations presents the

following points of similarity: both are media of com-

munication; both types of business are comparable from

the standpoint of limited number of employees, limited

number of readers or listeners, limited area of coverage,

limited effectiveness from an advertiser’s viewpoint,

limited gross income, and the fact that the small local

radio stations compete with the small weekly, semi-

weekly, or daily newspapers for advertising. In view of

these realities, there would appear to be no valid legal

basis for distinction between the purely local radio sta-

tions and the small weekly, semi-weekly, or daily news-

papers specifically exempted in the Act from its coverage.

It should also be noted that Subsection (d) of Sec-

tion 13 exempts from coverage “any employee engaged

in the delivery of newspapers to the consumer’. By

analogy, the employees of petitioner. performed that

same function in their news broadcasts.

The action of the lower court in holding that the

defendant and radio station WEMR were covered by the

Act limited the petitioner in the exercise of his property

12

Petition for Writ of Certiorari.

right in the operation of the radio station. Furthermore,

if, under the injunction issued in this case, petitioner

were subsequently charged with contempt of court for

violation of the injunction, any punishment imposed

could constitute a deprivation of his liberty. In the cir-

cumstances here present, to deny petitioner the exemp-

tion from coverage would constitute an unwarranted ar-

bitrary and unreasonable discrimination as between him

and the smaller classification of newspapers. As ex-

pressed by Mr. Chief Justice Warren in the case of Boll-

ing et al. v. Sharpe et al., 347 U.S. 497 (1954) at page 499,

“. . . But as this court has recognized, discrimination

may be so unjustifiable as to be violative of due process

of WW

In summary, petitioner respectfully submits that

the burden of proving the applicability of the Act to him

was upon the plaintiff in the lower court: Mitchell v.

Joyce Agency, C.A.7, 211 F2d 241 (1954); Mitchell v.

Raines, D.C., Ga., 136, F. Supp. 5 (1955) ; that the plain-

tiff below failed to meet the burden; that the cases relied

upon by the lower courts as bringing petitioner within

the coverage of the Act and the jurisdiction of the courts

do not sustain their position; and that to hold that peti-

tioner is covered by the Act on the same basis as news-

papers without extending to him the benefit of the ex-

emption provisions for small weekly, semi-week!y, and

daily newspapers, is an unwarranted, arbitrary, and un-

reasonable discrimination as between him and the

smaller local newspapers and deprives him of his prop-

- erty rights and possibly his liberty in a manner “viola-

tive of due procegs of law.”

13

Petition for Writ of Certiorari.

WHEREFORE, petitioner prays this Honorable Court

ta grant a Writ of Certiorari to the Court of Appeals for

the Third Circuit for the purpose of bringing up the

record of this proceeding, and for a review of the decision

of the Court of Appeals and of the District Court upon

the legal questions involved.

Signed:

i Petitioner

Signed:

Davm R. LEVIN

KENNETH E. RENNEKAMP,

Attorneys for Petitioner

=

14

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 12,278

JAMES P. MITCHELL, Secretary of Labor,

United States Department of Labor

v.

KENNETH E. RENNEKAMP, Individually and

Doing Business as Radio Station WEMR,

7 Appellant,

On Appeal from the United States District Court for

the Western District of Pennsylvania

Present: MCLAUGHLIN, KALODNER and STALEY,

Circuit Judges.

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Judgment

This cause came on to be heard on the record from

United States District Court for the Western District of

Pennsylvania and was argued by counsel.

1 On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court in this case be, and the same is hereby

affirmed. N

Attest:

F.

;

15

IpA O. CRESKOFF 8

Clerk i

January 2, 1958

15

Appendix—Opinion of the Court.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 12,278

JAMES P. MITCHELL, Secretary of Labor, United

States Department of Lahor,

v.

_ KENNETH E. RENNEKAMP, Individually and Doing

Business as Radio Station WEMR,

Appellant.

Appeal from the United States District Court for the.

Western District of Pennsylvania

Argued December 3, 1957

Before MCLAUGHLIN, KALODNER and STALEY,

Circuit Judges.

Opinion of the Court.

(Filed January 2, 1958)

PER CURIAM:

In the district court the Secretary of Labor obtained

an injunction against appellant restraining him from

violating the minimum wage, overtime and record pro-

visions of the Fair Labor Standards Act.of 1938, as

amended, 29 U.S.C.A. § 201, et seq.

The record clearly shows that during the critical

period appeilant’s radio station was an associate member

of the Associated Press, had a teletype machine of that

organization in its office from which it received Asso-

ciated Press world and national news on a twenty-four

hour a day basis for broadcast purposes and that such

news was received, edited and broadcast at regular in-

tervals every day in the week except Sunday. The em-

16 |

Appendiæ Opinion of the Court.

ployees of the station worked as announcers, engineers

and announcer-engineers. Among other things they had

duties in connection with the Associated Press news re-

ports, operation and maintenance of transmission equip-

ment, preparation of commercials and sale of advertising

for the station. These facts brought appellant’s em-

ployees within the coverage of the Act. Lorain Journal

v. United States, 342 U.S. 143 (1951); Associated Press

v. United States, 326 U.S. 1 (1945); Associated Press

v. N.L.R.B., 301 U.S. 103 (1937).. There was substantial

proof, accepted by the court sitting without a jury, of

violations of the Act. Appellant’s contention that ap-

plication of the Fair Labor Standards Act to him violates

the Fifth Amendment is without merit. Though the sta-

tion has been closed it is conceded that appellant is still

interested in at least two other radio stations. In one

of these he possesses a fifty per cent partnership interest.

The other is a corporation of which he is president. An

injunction against violating the Act has been previously

issũed against the latter station.

The decision of the district court is sound and its

injunction against the appellant justified.

The judgment of the district court will be affirmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit.

17

Appendix—Opinion of the Court.

Section 3, Fam LABOR STANDARDS ACT or 1938, June 25,

c. 676, Section 3, 52, Stat. 1060; 1946 Reorg. Plan

No. 2, Section 1, Eff. July 16, 1946, 11 F.R. 7873, 60

Stat. 1095; October 26, 1949, C. 736, Section 3, 63

Stat. 911; 29 U. S. C. A. Section 203.

DEFINITIONS.

... (b) “Commerce” means trade, commerce,

transportation, transmission, or communication among

the several States or between any State and any place

outside thereof. (i) “Goods” means goods...

wares, products, commodities, merchandise, or ar-

ticles or subjects of commerce of any character, or any

part or ingredient thereof, but does not include goods

after their delivery into the actual physical possession

of the ultimate consumer thereof other than a producer,

manufacturer, or processor thereof

Sec. 6, Fam LAEOR STANDARDS ACT OF JUNE 25, 1938, c.

676, Sec. 6, 52 Stat. 1062; June 26, 1940, c.432, Sec.

3(e),(f), 54 Stat. 616; October 26, 1949, c.736, sec. 6.

63 Stat. 912; August 12, 1955, c.867, sec. 3, 69 Stat.

711; 29 U.S.C.A. sec. 206.

MINIMUM WAGES.

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

ployees who is engaged in commerce or in the production

of goods for commerce wages at the following rates—

(1) not less than $1 an hour; .. (other portions of

this section relating to Puerto Rico or the Virgin Islands

are not applicable)

18

Appendiz—Opinion of the Court.

Sec. 7, Fam LABOR STANDARDS ACT or 1938, June 25, c.

676, sec. 7, 52 Stat. 1063; October 29, 1941, c.461, 55

Stat. 756; July 20, 1949, c. 352, sec. 1, 63 Stat. 446;

October 26, 1949, c.736, sec. 7, 63 Stat. 912; 29

U.S. C. A. sec. 207.

Mamu Houns.

(a) Except as otherwise provided in this section,

no employer shall employ any of his employees who is

engaged in commerce or in the production of goods for

commerce for a work week longer than 40 hours, unless

such employee receives compensation for his employ-

ment in excess of the hours above specified at a rate not

less than one and one-half times the regula: rate at which

he is employed . . (additional portions of this section

not applicable). :

Sec. 13 of the Fam LABOR STANDARDS Act of 1938, June

25, c.676, sec. 13, 52 Stat. 1067; August 9, 1939, c.605,

53 Stat. 1266; October 26, 1949, c.736, sec. 11, 63 Stat.

917; 29 U.S. C. A. sec. 213.

EXEMPTIONS.

(a) The provisions of sections 206 and 207 of this

title shall not apply with respect to (1) any employee

employed in a bona fide executive, administrative, pro-

fessional, or local retailing capacity, or in the capacity

of outside salesman (as such terms are defined and de-

limited by regulations of the Administrator); or (2)

any employee employed by any retail or service estab-

lishment, more than 50 per centum of which estabiish-

ment’s annual dollar volume of sales of goods or services

is made within the State in which the establishment is

located. A “retail or service establishment” shall mean

19

Appendiz—Opinion of the Court.

an establishment 75 per centum of whose annual dollar

volume of sales of goods or services (or of both) is not

for resale and is recognized as retail sales or services

in the particular industry; or (3) any employee employed

by any establishment engaged in laundering, cleaning or

repairing clothing or fabrics, more than 50 per centum

of which establishment’s annual dollar volume of sales

of such services is made within the State in which the

establishment is located: Provided, That 75 per centum

of such establishment’s annual dollar volume of sales

of such services is made to customers who are not

engaged in a mining, manufacturing, transportation, or

communications business; or (4) any employee em-

ployed by an establishment which qualifies as an exempt

retail establishment under clause (2) of this subsection

and is recognized as a retail establishment in the par-

ticular industry notwithstanding that such establishment

makes or processes at the retail establishment the goods

that it sells: Provided, That more than 85 per centum

of such establishment’s annua! dollar volume of saies of

goods so made or processed is made within the State

in which the establishment is located; or (5) any em-

ployee employed in the catching, taking, harvesting, cul-

tivating, or farming of any kind of fish, shellfish, crus-

tacea, sponges, seaweeds or other aquatic forms of an-

imal and vegetable life, including the going to and re-

turning from work and including employment in the

loading, unloading, or packing of such products for ship-

ment or in propagating, processing (other than canning),

marketing, freezing, curing, storing, or distributing the

above products or byproducts thereof; or (6) any em-

ployee employed in agriculture or in connection with

the operation or maintenance of ditches, canals, reser-

20

Appendiæ Opinion of the Court.

voirs, or waterways, not owned or operated for profit,

or operated on a share-crop basis, and which are used

exclusively for supply and storing of water for agri-

eultural purposes; or (7) any employee to the extent

that such employee is exempted by regulations or orders

of the Administrator issued under section 14 of this

title; or (8) any employee employed in connection with

the publication of any weekly, semiweekly, or daily news-

paper with a circulation of less than four thousand the

major part of which circulation is within the county

where printed and published or counties contiguous

thereto; or (9) any employee of a street, suburban or

interurban electric railway, or local trolley or motorbus

carrier, not included in other exemptions contained in

this section; or (10) any individual employed within the

area of production (as defined by the Administrator),

engaged in handling, packing, storing, ginning, compress-

ing, pasteurizing, drying, preparing in their raw or

natural state, or canning of agricultural or horticultural

commodities for market, or in making cheese or butter

or other dairy p. oducts; or (11) any switchboard oper-

ator employed in a public telephone exchange which has

not more than seven hundred and fifty stations; or (12)

any employee of an employer engaged in the business

of operating taxicabs; or (13) any employee or propri-

etor in a retail or service establishment as defined in

clause (2) of this subsection with respect to whom the

provisions of sections 6 and 7 of this title would not

otherwise apply, engaged in handling telegraphic mes-

sages for the public under an agency or contract arrange-

ment with a telegraph company where the telegraph

message revenue of such agency does not exceed $500 a

month; or (14) any employee employed as a seaman;

/

21

Appendix—Opinion of the Court.

or (15) any employee employed in planting or tending

trees, cruising, surveying, or felling timber, or in prepar-

ing or transporting logs or other forestry products to

the mill, processing plant, railroad or other transpor-

tation terminal, if the number of employees employed by

his employer in such forestry or lumbering operations

does not exceed twelve.

(b) The provisions of section 7 of this title shall

not apply with respect to (1) any employee with respect

to whom the Interstate Commerce Commission has power

to establish qualifications and maximum hours of serv-

ice pursuant to the provisions of section 304 of Title 49

(U.S.C.A.); or (2) any employee of an employer sub-

ject to the provisions of sections 1-27 of Title 49

(U.S.C.A.); or (3) any employee of a carrier by air

subject to the provisions of sections 181-188 of Title 45

(U.S.C.A.); or (4) any employee employed in the can-

ning of any kind of fish, shellfish, or other aquatic forms

of animal or vegetable life, or any byproducts thereof;

or (5) any individual employed as an outside buyer of

poultry, eggs, cream, or milk, in their raw or natural

state.

(c) The provisions of section 12 of this relating

to child labor shali not apply with respect to any em-

ployee employed in agriculture outside of school hours

for the school district where such employee is living

while he is so employed, or to any child employed as an

a or performer in motion pictures or theatrical pro-

ductions, or in radio or television productions.

(d) The provisions of sections 6, 7, and 12 of this

title shall not apply with respect to any employee

engaged in the delivery of newspapers to the consumer.

Appendiæ Opinion of the Court.

AMENDMENT V To U. S. CONSTITUTION

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or iimb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.”

23

Appendiæ From Transcript of Testimony.

From Transcript of Testimony U. S. District Court for

the Western District of Pa.

“CHARLES A. WELSH, JR., a witness in behalf of

Pr OPH POPOoPOo ore

©

the plaintiff, having been duly sworn, testified as

follows:

Dcr EXAMINATION

Where do you live?

5207 Lawson Road, Baldwin Borough, Pittsburgh

36.

By whom are you employed?

The Associated Press.

How long have you been employed there?

Since July ist, 1942.

What is your present position?

Correspondent in charge of the Pittsburgh Bureau

of the Associated Press.

How long have you held that position?

Since August of 1955.

Could you tell us what kind of an organization the

Associated Press is?

The Associated Press is a non-profit cooperative

news gathering organization gathering news

throughout the world for distribution to news-

papers and radio stations, principally in the United

States and other countries.

Are there associate memberships in the Associated

Press?

Yes, we have a category which we list as associate

membership. I am unable to give you the technical

O

Appendix From Transcript of Testimony.

differentiation between associate and regular mem-

ber. (PP. 66-67)

Do you have what is known as a special AP radio

news service wire report for broadcasting sta-

tions?

Yes, we do, sir.

Will you explain to the Court just what that con-

sists of?

The AP radio wire is a leased wire which carries

news principally designed for radio broadcast;

news written for radio broadcast must be prepared

in a different style of writing than th> news pre-

pared for newspaper publication and in order to

adequately serve radio stations, the AP set up this

very separate operation which goes to radio sta-

tions and from which they can receive it in tele-

type copy, ready for broaccast if they choose to

use it as it is received.

And the teletype service, do you know whether the

radio stations have ticker service, ticker machines

in the stations to receive this teletype service?

A radio member of the Associated Press will have

a teletype receiver, not a ticker—there is a differ-

ence—a teletype receiver in its station or at its

broadcasting studio somewhere where the news is

handled. (PP. 70-71) 5